Congressional Administration of Foreign Affairs

57 Pages Posted: 29 Apr 2019 Last revised: 20 Jun 2019

See all articles by Rebecca Ingber

Rebecca Ingber

Boston University - School of Law

Date Written: March 1, 2019

Abstract

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. In fact, questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decisionmaking, the weight accorded the position of any given decisionmaker, the context in which the decision is made — together these shape the ultimate position the President takes.

This Article explores and critiques the foreign policy role Congress can — and does — play in structuring and rearranging the relative powers of those internal actors, and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings. There are risks to deploying such “process controls,” as I term them, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Suggested Citation

Ingber, Rebecca, Congressional Administration of Foreign Affairs (March 1, 2019). Virginia Law Review, Vol. 106, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3361299 or http://dx.doi.org/10.2139/ssrn.3361299

Rebecca Ingber (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
114
Abstract Views
706
rank
239,049
PlumX Metrics