Foreign Policy and the Constitution #2: The Legislative Branch

As we all learned in high school, Congress makes laws and the president puts them into effect. The constitutional boundary between enact and implement is hazy, just as the Framers intended. They had lived under George III and didn’t want another king. They had seen the flaws of the Articles of Confederation, which created a weak Congress and no executive or judiciary at all.

The new Constitution they drafted included checks and balances among three separate branches to prevent tyranny. Congress’s power to tax and spend, by implication, allows it oversight over practically everything. In foreign affairs, the Constitution empowers Congress to declare war, regulate foreign commerce, levy tariffs, and raise, support, and regulate an army and navy.

Over the past century, power has shifted from Congress to the president. Congress hasn’t declared war since World War II; instead, it authorizes presidents to use military force against particular threats. Formal treaties have largely been replaced by executive agreements that don’t require the Senate’s advice and consent. Since the 1930s, Congress has given the president ever-growing power to set and negotiate tariffs.

Has Congress abdicated its role of oversight, checks, and balances? It repeatedly delegates authority to the executive. It leaves executive orders unchallenged. It confirms partisan nominees to head independent agencies. Congress has the means to reclaim some of the power it has ceded. Maybe someday it will have the will.