Since the Iran-Contra affair in the 1980s, the President’s power in foreign affairs, while questioned, has been constrained very little. Constitutional questions about executive power in the international arena have largely transformed into statutory ones. While statutes are more adaptable to changing circumstances than the Constitution, the statutory questions continue to address the issues generated by the Framers. Uncertainty regarding the scope of executive power has another cause: courts often dismiss cases about the constitutionality of the President’s actions for standing reasons. For instance, one of the latest cases that could have precipitated a serious discussion of the President’s foreign affairs powers is Bernstein v. Kerry. If the court had not dismissed the case for standing reasons, the plaintiffs would have challenged the Secretary of State’s decision to send military support to Nicaraguan rebels under the Department of State Foreign Operations and Related Programs Appropriations Act (“SFOAA”) and other statutes governing aid to foreign organizations and countries. Congress has developed a complex system for analyzing the Executive Branch’s power in this realm by setting up reporting requirements and adding a multitude of riders to bills. It is questionable how effective these statutes are at curbing Executive power-grabs, especially when the Executive has found evasive techniques for accomplishing its goals. For example, the usual statutory definition for “military support” has always included activities such as arming, training, directing, and sending out troops, but now statutory definitions must cover guerilla support and logistics in order to rein in presidential power in those areas. This definition should also include funding, at least when the United States directs the distribution of funds at a micro-level.
Alexa E. Craig,
Executive Power to Provide Material and Financial Support to Foreign Governments and NGOS Linked to Terrorist Groups,
Notre Dame J.L. Ethics & Pub. Pol'y
Available at: http://scholarship.law.nd.edu/ndjlepp/vol29/iss1/8