Frequent correspondent Tim Walters proffers an excellent discussion point in questioning the Syrian trips of Democrat and Republican members of Congress:
"I thought the Constitution left foreign affairs to the executive branch," Mr. Walters writes.
Well, not exactly. As a matter of fact, some argue that the Congress has the greater constitutional warrant. But whether House Speaker Nancy Pelosi, and the other delegation, violated federal law is another matter.
Jethro K. Lieberman, writing in "The Evolving Constitution," reminds that the "power over foreign affairs is not clearly defined in the Constitution," save the proscription from the states practicing it. Foreign affairs are quite the shared responsibility among the executive, legislative and judicial branches.
Article I grants Congress the right to regulate foreign commerce and, as Mr. Lieberman notes, "fund and oversee the foreign policy establishment of the United States" and declare wars, among other things. Article II grants the president his power to negotiate treaties and prosecute wars; Article III allows the federal courts to adjudicate cases involving foreign diplomats and citizens.
The constitutional impression that foreign policy is a presidential prerogative comes not from the Constitution but from a Supreme Court ruling, United States v. Curtiss-Wright Export Corp. (1936) . Briefly, a joint resolution of Congress had authorized President Franklin Roosevelt to place an arms embargo on shipments to countries at war in the Chaco region of South America (northwestern Paraguay, southeastern Bolivia and northern Argentina). FDR did just that.
Vanderbilt law professor Harold G. Maier, an expert on the case, picks up the story (in "The Oxford Companion to the Supreme Court"):
"When Curtiss-Wright Export Corp. was indicted for violating the embargo, it defended itself on the grounds that the embargo and the proclamation were void because Congress had improperly delegated legislative power to the executive branch by leaving what was essentially a legislative determination to the president's 'unfettered discretion.'"
The court disagreed. Back to Professor Lieberman:
"(T)he court said that the constitutional authority to act stemmed not only from a congressional delegation of power but from 'the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.'" That inner quotation comes from Justice George Sutherland, who wrote for the 7-1 majority.
But some, such as Ivan Eland, see this interpretation as a gross distortion of the Framers' intent, the presidential wartime powers, in particular. The supposed presidential prerogative in affairs foreign "flies in the face of both the text and the spirit of the Constitution," says the director of the Center on Peace and Liberty at The Independent Institute.
"(T)he Constitution's Framers actually gave more power in foreign affairs to the Congress than the president," he argues in a commentary. "Clearly, the Framers wanted the Congress to be the dominant branch in foreign policy, as with most other aspects of governance.
"In fact, the Founders undoubtedly would have noted the warlike European monarchs of the day were the sole purveyors of their nations' foreign policy -- the very problem the Framers attempted to address with the constitutional separation of powers."
Mr. Eland says the expansion of executive power in foreign policy has not served the nation well. He cites Korea, Vietnam and Iraq. But it has, he adds, often served the interest of congressional politics, as the Pelosi trip proves.
Back to Tim Walters. While he and many people ascribe to the Sutherland rendering (or is it rending) of presidential prerogative in foreign policy -- a court opinion, not a constitutional warrant -- that doesn't necessarily make right or even sensible what the politicos have done with their Syrian visits or past bad-guy junkets.
In fact (and as first broached by former Assistant Secretary of State Robert Turner in Friday's Wall Street Journal), what Mrs. Pelosi did may have violated the Logan Act of 1799.
The act was named for Pennsylvania pacifist George Logan, who traveled to France in 1798 on a "peace mission" during heightened tensions known as the "Quasi-War." Reads the act, updated in 1994:
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 measure 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.
It's unlikely we'll see Mrs. Pelosi perp walked in a head scarf and stripes anytime soon. But few could credibly argue that Pelosi didn't overplay her hand. This was not acceptable "fact-finding" but grandstanding and an attempt (and an embarrassing one at that) at "negotiating." Witness her major childlike fib about delivering a "let's-do-peace-talks" message from Israeli Prime Minister Ehud Olmert to Syrian puppet thug Bashar al-Assad.
We can discuss and disagree at home; let's make the debate robust. But when we're engaging the world, the United States must speak with one voice. And if the people's designee -- the president -- has chosen not to give dictatorial puppets any veneer of credibility with "official talks," that decision must be honored.
While folks like Ivan Eland advocate direct talks with our major adversaries -- he even suggests sending Mrs. Pelosi on to Tehran -- the simple fact remains that many are state sponsors of terrorism.
Direct talks, in those adversaries' severely warped minds, are an endorsement of their terroristic tactics. And once you give crud credibility, you're cooked.
