The US Constitution and Foreign Policy

Just in case you are averting your ears and eyes to the impeachment inquiry against President Trump, there was a lot to be said about the testimony of LTC Alexander Vindman. LTC Vindman was one of the people that was listening to the call that Trump made to the Ukrainian President on 25 July.  According to the Washington Post, a paper that does not support President Trump:
 
“[Vindman] told lawmakers that he was deeply troubled by what he interpreted as an attempt by the president to subvert U.S. foreign policy and an improper attempt to coerce a foreign government into investigating a U.S. citizen.”
 
The suggestion being made is that the President was subverting US foreign policy. What foreign policy was he exactly subverting? Can the President subvert foreign policy if he has authority over foreign policy? Can the President ask a foreign leader to help in the investigation of a US Citizen? If he doesn’t, then who does have the authority to discuss this with another foreign leader? Congress? If a President subverts foreign policy, can he subvert him or herself? What does the US Constitution have to say about Presidential powers for foreign policy?  Unfortunately, the answer is not that cut and dry.
 
  1. Article 2 of the US Constitution gives certain authority to the President.
  2. Article 1 of the US Constitution gives certain authority to Congress
  3. There is no authority granted to the Judicial Branch over foreign policy; however, the Judicial Branch does have authority to submit and provide legal decisions regarding how the executive and legislative branches conduct themselves regarding constitutional law – this includes foreign policy. Supreme Court decisions in this area were very limited for the first 200 years of this nation, but, have grown significantly over the last two decades or so.
  4. And then, there are some powers that are divided equally amongst both branches.

 

The political branches often cross swords over foreign policy, particularly when the president is of a different party than the leadership of at least one chamber of Congress.  Foreign affairs include activities such as military operations, trade and commerce, immigration, intelligence operations, foreign aid, and international agreements (i.e., treaty’s) Unfortunately, or fortunately depending on your perspective, the Constitution is not very specific in some of these areas, but it can be argued that the division if powers over foreign affairs is implied in almost all areas. For example: if Congress is not happy about a military action ordered by the President, Congress does control the money – they can hold off funding. A second example is the appointment of ambassadors, Congress can deny approval of an ambassador by vote. 

Nonetheless, history has shown that the party in power will use the vagueness of Foreign Powers in the Constitution to their advantage; this goes for both Republican and Democrat. Presidents have accumulated foreign policy powers at the expense of Congress in recent years, particularly since the 9/11 attacks – perhaps this is why we have experienced a dramatic increase in these types of issues going to the US Supreme Couty. The trend conforms to a historical pattern in which, during times of war or national emergency, the White House has tended to overshadow Capitol Hill. Is Russian collusion into our election considered a national emergency? I think so and, unfortunately, I have zero confidence in Congress to investigate this. 

Secondarily, we regularly hear about the President “obstructing justice”. In truth, the President has told certain high level officials that they will not testify in front of Congress and they have also stated their refusal to turn over some of the documents that Congress has requested. One may argue that the President is correct, there is such a thing as executive privilege, but, I believe that the most obvious case is that Congress is NOT following precedent in this impeachment inquiry. Yes, portions of previous impeachment inquiries into Clinton and Nixon were held in secret, but, and this is a large but, these inquiries were led by an independent council and NOT by a member of the Intelligence Committee of Congress who has an extremely obvious case of political bias. If I were Trump, I would hold as much back as possible and only release the materials once I have an opportunity to participate in the legal process.

 Back to the argument about foreign policy powers, “The Constitution, considered only for its affirmative grants of power capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy,” wrote constitutional scholar Edward S. Corwin in 1958. Some legal and constitutional scholars have noted that presidents have many natural advantages over lawmakers with regard to leading on foreign policy. These include the unity of office, capacity for secrecy and speed, and superior information. “The verdict of history, in short, is that the substantive content of American foreign policy is a divided power, with the lion’s share falling usually, though by no means always, to the president,” wrote Corwin.

President Trump’s foreign policy proposals may spur Congress into taking a more active role than it has in recent years, writes political science professor Stephen R. Weissman in Foreign Affairs. But, as the precedent has already been set in reference to the President and his power over foreign policy, can Congress find the President in violation of law regarding his actions?  Perhaps, at best, they can make new laws limiting the Presidents power moving forward.

For example: what law did the President break when it is said that he subverted foreign policy?  Adam Schiff, for his part, is arguing that the President abused his power in a quid pro quo by asking a foreign leader to investigate a political opponent that, some say, Trump can use in the upcoming President election.  However, as Republicans and others are arguing, the transcript provided does not show this, so again, what law did Trump break?  

The sad news for Americans is that, unless this transcript is shown to have been manipulated (which some are now saying), then the country will always remain divided over this question.  I am one that does not believe this impeachment is about preserving the argument that “nobody is above the law”, else, I believe that we would have seen many more prominent and politically elite, in prison or fined significant amounts of dollars at the least. No my brothers and sisters, all impeachment hearings are political, including the ones that came against Clinton and Nixon. 

Regardless of the outcome, whether Trump is vindicated or whether he is found guilty, this impeachment is not healthy for our country and will divide us further. If you don’t want Trump as your President, then vote him out in 2020. If you do, then vote him in. Let America speak and stop the political pandering.  Our elected officials are acting like children – all of them. One trying to outdo the other, all of them are trying to sell us on why they “are great Americans” and are about doing America’s business in the name of justice. 

Did the President break the law by subverting foreign policy? Give the American people ALL of the information and let the American people decide, because our elected representatives are failing.

 

References:

https://www.washingtonpost.com/politics/white-house-official-who-heard-trumps-call-with-ukraine-leader-testified-that-he-was-told-to-keep-quiet/2019/11/01/dbed7fae-fc07-11e9-ac8c-8eced29ca6ef_story.html, accessed 4 Nov 2019

https://www.heritage.org/political-process/report/understanding-the-constitutions-foreign-affairs-power, accessed 4 Nov 2019

https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president, accessed 4 Nov 2019

https://www.amazon.com/President-Office-Edward-S-Corwin/dp/0814713904/ref=sr_1_1?s=books&ie=UTF8&qid=1487861733&sr=1-1&keywords=Edward+S.+Corwin+president+powers, accessed 4 Nov 2019

https://www.foreignaffairs.com/articles/united-states/2016-12-12/congress-and-war, accessed 4 Nov 2019