What Role Should Congress Have in Foreign Affairs? (with Alissa Ardito)

Understanding Congress

The topic of this episode is, “What role should Congress have in foreign affairs?”

My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

Alissa Ardito:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs?

Alissa Ardito:

Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia.

And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers.

Kevin Kosar:

Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?

Alissa Ardito:

Yes, there actually is a lot that Congress can do. Even the statutes that allocate powers to Congress—they're implementing those broader textual powers in very specific ways to effectuate them. Even the War Powers Resolution, depending on one's views—one could argue it's unconstitutional, but I think the consensus is that they are. But, moving along, Congress has informal powers it can use. Again, it can pass resolutions—Senator Graham did one about the sale of certain jets to Ukraine. It can use ceremonial functions such as hosting dignitaries. Also, holding hearings are specific ways in which, through exercising oversight, Congress can be influential and can raise the salience of certain issues.

And I think, not to take too much of a contemporary example, but the various funding bills Congress has passed on a bipartisan basis on aid to Ukraine are examples of—I mean, it's a formal power in that it's grounded in the Constitution and the Appropriations Clause, but it also acts in a way to give Congress more influence as well as authority than you might otherwise think. It's not following in the wake of the president. It's actually taking the lead in many ways more recently, which is unusual.

Kevin Kosar:

Yes. I think there's often a habit to try to allow the executive to be the sole voice of policy in international affairs, but there is absolutely nothing to stop any single member of Congress or an entire political party to simply assert themselves on an issue. If you're a foreign head of state and you realize the president's saying one thing and members of Congress are saying another, that has impact. That has effect.

Now, let me move on to the next question. I want to go back to the Constitution. When the Founders bargained it out, they took away many traditional executive authorities over foreign policy from our executive and assigned it to Congress. Examples include the ability to independently raise funds, as you mentioned, and to make treaties. Why did they do this? This was in such distinction to the old practices of Europe, for example.

Alissa Ardito:

That's such a great question. They did this for a couple reasons. One way to think about it is, it looks as though they're pulling powers away from an executive. But you actually had examples of monarchs who, by accident of history, exercised what we think of as executive authority, but there's a historical background and then there's a functional reason. Many powers kings exercised based on prerogative were sometimes also legislative in nature. So, it gets really confusing because we're layering old ideas about mixed government, which go back to Polybius and ancient Rome, which divides the institutions of government based on class—are they representing the few, the many, [or] the one? Then around the time of the English Civil War, you get this functional separation—that it's not, “Who in society's being represented in this body?,” it's, “What's that institution doing?”

The fulcrum of this really is the framing of the Constitution, because they're heirs of both these ways of thinking. But back to initial ideas—they found that they had the benefit of, as Jack Rakove often points out, 10 years or more dealing with state constitutions. And the state constitutions really exemplified pulling away any authority from the executive. They were really focused on legislative government and disempowering the executive. They found that these constitutions didn't work. So they realized, no, we've got to reallocate things yet again and move back to giving our executives some power, but not too much. They decide to split it, which is the great innovation. It's starting from almost a tabula rasa and saying, “How can we allocate this power more effectively?”

What I find fascinating is, throughout the long summer, the Senate really was going to be the preserve of a lot of the foreign affairs powers, and was actually going to have the authority to negotiate treaties, as well as have a say in ratifying them. It was only towards the very end that they pulled some of that out and gave it to the executive, and then kept some in the Senate. Because we're so inured to thinking of—by nature and by, as Harvey Mansfield has said, the informal powers the president gets for a variety of reasons—we always think of it as pulling away. But in some ways, in the Framing, we got a pulling away of powers from the legislature in Congress over to the president, as a reaction against what they thought was some short-term thinking in the state constitutions.

More to what you were speaking to, some of the key—not just powers bestowed on Congress as well as the power to declare war and the Senate treaties—but also fundamental in the British experience were the Mutiny Acts that evolved after the Bill of Rights and the Acts of Settlement. But this was before the Act of Settlement. This was [1689], where Parliament every year starts to vote on the military and supplies to the military to prevent the king from supporting and maintaining a standing army during peacetime. So, the idea that the legislature—the will of the people—have a say in how much an army or military is funded, as well as other aspects of military governance—you can't have martial law during peace time, for example. These are bits and pieces of the British experience that are very influential when it comes to shaping these broad contours of powers between two institutions that they're thinking of.

Kevin Kosar:

Yeah. You mentioned the British experience. I'm reminded of the fact that in the Declaration of Independence, we have lines that reference bad American colonist experiences involving military imposed against them. They were supposed to be part of the empire, yet the executive is using military force against them. So, there's complaints about, the "King has affected to render the military independent of and superior to the civil power... the quartering of large bodies of armed troops among us... the cutting off of our trade with all parts of the world," et cetera. And you look at our Constitution, and you could see those specific gripes actually responded to and corrected in the text of the Constitution, because they didn't want to see a repeat of that movie.

Alissa Ardito:

Exactly. What's also interesting is that the British monarch's powers to wage war, to conduct war, conclude peace, as well as negotiate treaties, were all considered prerogative powers. Some people loosely use prerogative today with respect to the president. That's not necessarily historically accurate, because the prerogative, as Maitland or Dicey said, was an accumulation of powers, of accessory powers that adhered to the very person of the British monarchy. It was very feudal. And Wilson and Madison, when they start to think about, “Well, what really are we talking about when we're discussing the treaty power?” “It's a prerogative power.” “How does that help us?” they say, “Well, you know what, it's actually legislative,”—which is the influence of eighteenth-century Vattel, and the idea of international law. Well, that's a legislative power.

So that's why they then thought about putting this in the Senate, and the Senate still has its two thirds ratification power. So it's again this wonderful labyrinthine process, by the way, in which some of these powers slither about and move in and out of conversation and are transmitted across time. And then they end up specifically where they are in our Constitution, which I think of as almost like a memory palace, as the classical rhetoricians would say, with houses of lots of rooms and lots of memories in them as well.

Kevin Kosar:

Absolutely. Well, the debate over what authority a legislature or popular assemblies should have over foreign affairs goes way back past the American founding, doesn't it?

Alissa Ardito:

Yes, it does. We're most familiar with the great debates around the time of and after the English Civil War, those fundamental debates that become part of the British Constitution. But it goes back even earlier than that. You find it even in Thucydides, for instance, about the Sicilian expedition. So, this idea has moved back, about where does foreign policy fall. By tradition we think it's always been the preserve of monarchies, but that's not actually the case. We've had city-states and republican—again, small ‘r,’ meaning popular—forms of government for a long period of time.

One of the places in which this was debated perhaps most prominently before you get to the aftermath of the English Civil War was in the Renaissance and the early modern period. Specifically, Machiavelli is someone who thought about this quite a great deal, as the Florentines did in that era. The problem was that foreign affairs were conducted by rotating groups of executives; it was all by committee structure. People were involved because there was no sense of, well, the mayor of the city, or [in] principalities it was different—but there was no sense that one person needed to conduct foreign policy. The problem was, they started to find out—and the system worked, it worked well. Venice endured until 1807, so there's no reason to believe this can't work. But the problem these city-states found was that they were really slow and they couldn't come to decisions quickly enough. That had not been a problem in the fourteenth century or in the fifteenth, even. In the sixteenth, it starts to become a huge problem. They're not able to act effectively and expeditiously, and if they don't learn how to do so, they're going to be conquered. Now, the conventional wisdom is, and even was at that time, “Well, it's the era of monarchies. Our era is over.” But then there were thinkers, Machiavelli among them, who look back to the Roman Senate—because Rome was a great example of a decisive, expansionist republic—to try to figure out, should people be involved? How much popular ratification and popular debate should we have? And this goes back and forth, because you see it from de Tocqueville, who writes and says, “Foreign policy is one of the areas where people are least able to offer advice and public wisdom, should least enter because it's least valuable,” to Morgenthau saying, “All the attributes of a successful foreign policy are precisely those”—I'm really paraphrasing generously, expansively on his wonderful words—“that do not [inaudible] by public input, because you have to have a course that will endure over years instead of [the] strategy [of] appealing to the fickle nature of the popular will—it's just not going to work.” That's so often used as a reason to cut people out entirely. So, to come up with ways and devices, because popular will does ensure a certain amount of accountability, is one of the great challenges of institutional design.

Kevin Kosar:

Yeah. You hit on something that feels to me like a fundamental conundrum about self-government and foreign policy. On the one hand, foreign policy is exceedingly complex, and it inevitably involves negotiations among nations that require all sorts of interpersonal manipulation and gamesmanship. I mean, you read Kissinger's memoirs and things like that. The amount of stroking and fooling and blustering that goes on—it's an extremely complicated game played by a small number of representatives of each nation. So, the nature of the exercise to some degree lends itself to, "Just let the executive do it." On the other hand, if we're going to be a representative democracy, then how is it that we could have representative self-government if we simply take an entire realm of policy off the table and say, “The legislature has no business talking about this because they don't know foreign affairs”? That seems really problematic, not least because defining the boundaries of foreign affairs—Does it include trade? Does it include this? Does it include that?—gets extraordinarily messy. Executives, I should also mention, sometimes make mistakes in diplomacy and in decisions of war and power. What do you think?

Alissa Ardito:

I think that's true. Actually, Machiavelli would echo this in one of the chapters of the Discourses, which is his great book on republics and the institutional design of republics. He says, “Yeah, people make huge mistakes, especially in foreign policy. They love to go to war. They love military adventurism. They can't really be trusted.” But then he modifies what he's saying. He goes, “But princes can't be trusted either. They're prone to the same mistakes, and there's no remedy for that other than steel.” When it comes to the populace or the common man—what we would call now the median voter—you could talk to them. People after a while aren't fooled in things, and they go back and they change their minds, or reason appeals to the majority.

So, that's a reason to keep some public accountability mechanism afterwards, which is like a checking function. But maybe people should be involved in some way, or their representatives, in formulation of policy. That's where Machiavelli has his own solution, with the Senate and popular assemblies ratifying especially a declaration of war. And I think the United States developed a nice method of managing this through the Senate and the Committee on Foreign Relations. That was one of the original standing committees in 1816. That's how you get constitutionally grounded—not the committee structure, I mean, but advise and consent—role for, if not a broad public plebiscite on certain foreign policy questions, but you have the popular branch, you have a level of expertise, which I know is a tricky word to say, but familiarity with the issues, with the formulation of policy that develops over time. And the Senate allows that through the six year terms. It's hard to think of representatives who have the stature of—let's look at a Cabot Lodge, however you felt about the Treaty of Versailles. Or a Lugar, or a Vandenberg, or a Vannette, or a Walter George, or a Fulbright. You have senators who achieve a certain preeminence and a knowledge of foreign policy.

And the Senate was known as a graveyard of treaties unless the president took the time to consult with members of that committee. The argument goes, Wilson might not have had some of the challenges he had with the Treaty of Versailles, and the League of Nations, had he involved the committee earlier. I don't mean that always works. I think there are broader issues with executive agreements rather than treaties, and it could be the heyday of certain committees have ended. But I think it's fascinating to observe the way in which that committee evolved to implement some of the Constitution's allocations of power in a way that was successful in certain periods. Perhaps if you're looking back at NATO expansion, even in the ’90s, you could say the committee has been successful in performing its function.

Kevin Kosar:

I should underscore something you pointed out, which is that while it's easy to think of a president as longer in the seat and better equipped with all the advisors around him or her than somebody who's been elected—a former used car salesman or small town lawyer—history has shown that we have senators, we have members of the House, who get on foreign affairs committees and they stay there for a very long time—decades—far longer than any president may serve. And as such, they have a depth of knowledge and a cred in overseas nations that means something. It adds a steadiness to foreign policy.

I'll also just add that it seems to me that foreign policy by its very nature has to have popular consent, because inevitably it's going to involve the wellbeing and lives of the public—whether it's trade, which can affect...