JURI 4425:
Foreign Affairs and the Constitution

Professor Bodansky, Fall 2003
University of Georgia School of Law

| Home | Syllabus | Assignments/Readings | Documents | Exam Archive | Glossary | Current Developments | Links


Sample Answers to Exam, Spring 1995

Note: This sample answer identifies some of the main issues in Question 1. It is not definitive, nor does it represent the only possible approach to the question. Answers may be presented as an outline (as below) or in memo or essay form.

Congressional options to address the Ipcress crisis

  1. Declare war on Republic of Gander

    Congress could declare war on the Republic of Gander, pursuant to Article I, Sec. 8, cl. 11. Assuming that a declaration of war requires the President's signature (an issue that will require additional research), then this option is viable only if we have sufficient votes to override the President's almost certain veto.

    Analysis: This would be an extremely provocative act internationally, and would represent only the 6th time in US history that the US has declared war. The declaration would be purely symbolic, since the President as commander-in-chief would presumably not prosecute the war with the ROG.

  2. Power of the purse

    Congress could enact legislation pursuant to its power of the purse (Constitution, Art. I, sec. 9, cl. 7) to:

    1. Limit what the President may do.

      No funds may be obligated and expended for:

      • Use of US troops in UN peacekeeping operations
      • US participation in NATO air strikes
      • US actions to enforce UN embargo

    2. Direct President to act in certain way.

      • E.g., US representative to UN must vote to lift the arms embargo.
      • President must recognize the Hellenic Democratic Republic.

      Since it is virtually certain that the President would veto any bill limiting his options or directing him to act in a particular way, this option (like Option 1 above) would depend on being able to muster enough votes to override the President's veto.

      This option is supported by a number of historical precedents, where Congress has used its power of the purse to control foreign policy:

      • Cut off of funding for bombing Cambodia during Vietnam War
      • Clark Amendment: prohibition on assistance for military, paramilitary activities in Angola
      • Boland Amendment: no assistance to Nicaraguan contras
      • 1993: Congressionally imposed deadline for withdrawal of troops from Somalia

      Potential limits on Congressional appropriations power:

      1. "Internal" limits

        United States v. Lovett suggests that there are limits on Congress's appropriations power: Congress can't use the appropriations power to do something that Congress is otherwise prohibited from doing under the Constitution (e.g., constitutional prohibition on bills of attainder).

        In this case, there does not seem to be a Lovett problem.

      2. "External" limits:

        Limits from powers granted to other branches of federal government: separation of powers concerns - e.g., Congress may not condition an executive branch salary on the appointment of a particular person, since this would intrude on the President's appointment power.

        It is possible that inclusion of a provision in an appropriations bill directing the US representative to the UN to vote in a particular way would impermissibly infringe on the President's authority to communicate with foreign governments (although similar provisions in the human areas have not been challenged).

        Also, some commentators have argued that Congress can't use its appropriations power to prevent the Executive from fulfilling constitutionally mandated obligations, although it is unclear how this principle would apply here.

        Bottom line: Thus far no Court has struck down an appropriations limitation on the President's national security powers. So this is a preferred option.


    3. Terminate US-ROG Mutual Security Pact

      Congress could attempt to adopt a resolution terminating the Mutual Security Pact with the ROG. Assuming this were a joint resolution, which requires signature by the President, Congress would need to override the expected veto.

      Legal issues:

      • Does Congress have the power to terminate a treaty, or does this require Presidential action?

        The District Court in Goldwater v. Carter held that neither Congress nor the President has exclusive power to terminate treaties. Instead, termination requires joint action.

        But there is at least one historical precedent for unilateral Congressional termination of a treaty.

        Possible analogy with U.S. v. Brown: In U.S. v. Brown, international law gave the U.S. a license to confiscate enemy property. Issue was who got to decide whether the US would exercise that license. The Supreme Court held that Congress not the President gets to make that decision. Here, if international law gives the US a right to terminate (for example, due to changed circumstances), then Congress should have power to decide whether the U.S. will exercise that right.

      • Regardless of whether Congress may terminate the treaty internationally, it can pass legislation overriding the treaty as a matter of US law. If Congress wishes to do so with respect to the US-ROG security pact, it should state that this is its intent, to avoid the Charming Betsy rule (US law will be interpreted whenever possible to be consisitent with international law). It is unclear what the effect of this action would be, since the treaty would still bind the US as a matter of international law.

    4. War Powers Resolution

      1. Congress (or individual Congresspeople) could bring a lawsuit contending that US troops are in a "situation where imminent involvement in hostilities is clearly indicated by the circumstances," (WPR, Sec. 4(a)(1)) thereby triggering the reporting and 60-day clock requirements of the WPR. Congress could seek either a declaratory judgment or injunctive relief.

        Legal issues:

        1. Constitutionality of WPR:

          Nixon veto message asserted that WPR unconstitutionally infringes on President's authority as commander-in-chief. Historical practice supports argument that Presidents have at least some authority to send US troops into hostilities without Congressional approval.

          However, these cases involved Congressional silence. No authority for proposition that President can initiate hostilities in face of Congressional disapproval (Youngstown Category III case)

        2. Does the present situation constitute "hostilities" within the meaning of the WPR?

          Lowry v. Reagan held that this is a political question, so a court might refuse to decide this issue.

        3. Congressional standing?

          Cases seem to allow Congresspeople to bring suit to challenge Presidential warmaking power (see, e.g. Dellums v. Bush).

        4. Ripeness?

          Dellums v. Bush suggested that ripeness would not be a problem if Congress itself votes to bring the lawsuit, as opposed to a few individual Congresspeople.

        5. Political Q?

          In Lowry v. Reagan, the Court dismissed a similar lawsuit on political question grounds.

          We could respond that courts have been willing to determine whether hostilities exist for other purposes (e.g., insurances cases involving war risk clauses), so why not here as well. This argument is supported by Dellums v. Bush (court able to determine whether hostilities constitute a "war").

        6. What would be the remedy?

          Crockett v. Reagan said that the WPR doesn't contemplate court-ordered withdrawal, but the Court could order that a report be filed under the WPR.

        Bottom line: attempts to enforce the WPR through court actions have consistently failed, so this option would at most serve only a public relations function.

      2. Congress could pass a concurrent resolution pursuant to the WPR sec. 5(c), directing the President to remove US forces from the hostilities.

        Legal problem: Section 5(c) of the WPR resolution is likely to be stuck down as an unconstitutional legislative veto as a result of INS v. Chadha.

      3. Recognition of Hellenic Democratic Republic

        Congress could pass a concurrent resolution recognizing the Hellenic Democratic Republic.

        Issue: Would this infringe on an exclusive Presidential power, flowing from President's power to receive foreign ambassadors?

        Analysis: The Constitution doesn't explicitly address the issue of recognition, but most commentators infer that the President's power to receive foreign ambassadors (Art. II, sec. 3) includes an implied power to recognize foreign states and governments. This is supported by Hamilton in the Federalist Papers (Casebook p. 1023). However, there is at least one precedent for Congressional recognition. In 1898, Congress recognized the independence of Cuba in connection with its declaration of war against Spain. Thus, if Congress were to declare war on the Republic of Gander, it could at the same time recognize the Hellenic Democratic Republic, relying on the Cuba precedent.

       

      Top of Page