Limits of Congressonal Power in Foreign Policy

Perhaps we should thank House Speaker Nancy Pelosi for yet another lesson in Constitutional law. A couple of weeks ago, she and a number of other representatives (including some Republicans) traveled to Syria to speak with Bashar al-Assad, the country’s strongman ruler. They traveled to Syria despite a request from President Bush that she and the other representatives not visit with Syria. President Bush was trying to isolate the Syrian government diplomatically.

Pelosi claims she was not there to negotiate, but was only on a fact-finding mission. This assertion is belied by the statements by Representative Tom Lantos (D-CA) who accompanied her and how foreign governments, particular the Syrians, treated her visit. Whatever the merits or difficulties associated with Speaker Pelosi’s foreign adventures, the question as to the prerogatives and limits of Congressmen and Senators with regard to foreign policy lingers.

The Constitution grants only indirect power, through the budget, to the House of Representatives. The President can negotiate treaties, but these must be ratified by a super majority (2/3) of the Senate. In 1798, Dr. George Logan, a state legislator from Pennsylvania, directly spoke with the French government. The Federalist Party in control of Congress was upset with his meddling and passed the “Logan Act.” The act is still in force today and specifically holds,

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

Despite this rather categorical admonition, Logan later traveled to England as a private citizen to help stop the War of 1812. The mission failed, but Logan managed to stay out of jail as he was not prosecuted under the act. Prosecutions under this act have continued to be rare. According to Wikipedia, there is only one know indictment under the act.

As a practical matter it would difficult for any Congress to repeal the Logan Act. To maintain his or her foreign policy prerogatives, any president is likely to veto the repeal. While there is little question that the Logan Act applies to private citizens, does it prevent Congressmen for engaging in negotiations? Can representatives and senators negotiate with foreign governments on their own? Apparently Congress believes they are not- permitted to negotiate. According the House Committee on Standards of Official Conduct:

“Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the intent to influence the measures or conduct of any foreign government or of any officer or agent thereof in relation to any disputes or controversies with the United States, or to defeat the measures of the United State.”

This is wording is pulled directly from the Logan Act.

The Courts have had little opportunity to rule on the limits of Congressional authority with relation to negotiation with foreign powers, but when they have they have unequivocally concluded that only the President is empowered to negotiate for the United States. The Constitution has delegated specific powers to the different branches of government. These enumerated powers are augmented by “implied” powers necessary to carry out the enumerated powers. The courts have concluded that in order to carry out his authority to negotiate, the President’s power to negotiate must be exclusive. In United States v. Curtiss-Wright Export, the majority concluded in 1936 that,

“The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success…. [The President] makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.”

The Court even cited the fourth Chief Justice of the United States John Marshall, who while a U.S. Representative argued that “’The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

The Constitution operates most smoothly when the different branches respect their constitutional and traditional limitations and do not try to brush up against the limits of power.

If Speaker Pelosi rules from her head she will avoid such stretches of Congressional authority in the future. If she rules from her passions or bends to the more extreme elements of her party, she will ignore legitimate constraints on Congressional power.

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