Whose Job Is This, Anyway? (U.S. Edition)
Hi friends,
Welcome to the November installment of Foundations. As a refresher, my goal with this monthly series is to unpack some of the basics of foreign policy—to lay the groundwork to help us understand what we’re seeing in the news or on social media about how countries conduct international affairs. I want to spend today framing out foreign affairs as a process: when we talk about a country carrying out its foreign policy, who, exactly, is doing it? And what gives them the authority to do so?
I should note at the outset that, given my training and background, today’s focus is on the foreign affairs power in the United States. However, I would absolutely love to share guest posts from practitioners with expertise in other countries, so please reach out if this is something you’re interested in contributing!
While we could go section-by-section through the U.S Constitution and the legislation that applies in the foreign affairs space (and that would be fun, too, right? …right???), I want to take a slightly different approach, and explore the foreign affairs power by walking through some fictional (or fictionalized) examples of what can come up between countries, and how different branches of the U.S. government play a role in those events. So without further ado—
Somewhere in Europe, the state of Genovia is created.
Discontent has long been brewing among separatist groups in France and Italy who argue that, historically and culturally, they are part of a distinct nation. Eventually, enough momentum builds that France and Italy agree to honor the results of a referendum, and out of that vote, the nation of Genovia is born. (If that name sounds familiar to you, you might be a millennial, and also I can neither confirm nor deny that I know what you’re talking about.)
The first action the U.S. must take is to decide whether to recognize Genovia as a state and establish diplomatic relations with it. The results of such a decision are usually announced by the president, as was the case with South Sudan, Cook Islands, and Niue. Once the U.S. establishes diplomatic relations with Genovia, the U.S. can accept the credentials of an ambassador from Genovia, as well as send a U.S. ambassador to Genovia in turn (the U.S. ambassador will need to be confirmed by the Senate). There will also need to be negotiations between the State Department and Genovia’s Ministry of Foreign Affairs on establishing embassies, including finding physical space for the buildings sufficient to meet relevant security requirements.
These actions are carried out by the executive branch—by the president, and the federal government agencies that are under the president. You’ll frequently hear reference to the president’s “foreign affairs power”: this is a combination of authorities derived largely from Article II of the U.S. Constitution, as well as historical practice. Article II authorities include the president’s investiture with the executive power, the commander-in-chief power, the ability to receive and appoint ambassadors, the ability to enter into treaties, and the president’s duty to take care that the laws of the United States are faithfully executed. As a practical matter, much of the day-to-day conduct of foreign affairs is done by the foreign service and civil service employees of the U.S Department of State. Foreign affairs authorities are sometimes delegated to the State Department by the president, whereas others are codified in laws such as the State Department Basic Authorities Act.
The U.S. - Genovia relationship is strong…
Now that diplomatic relations have been established between Genovia and the United States, Genovia wants to build on that relationship by formalizing cooperation on a number of key issues, largely through the negotiation of international instruments covering things like shipping, environmental and scientific cooperation, intelligence sharing, and extradition. Genovia is also hoping to benefit from U.S. foreign assistance funding that would help it strengthen its civil society and electoral institutions, and improve its public health systems. In addition, the U.S.wants to persuade Genovia to give favorable terms to U.S. businesses importing goods from two of Genovia’s primary industries: olive oil and satellites.
The negotiation of these instruments will largely be done by executive branch employees of the State Department and other agencies with subject matter expertise, though high-level negotiations may involve the Secretary of State or the President. Some of these instruments may be nonbinding—in other words, they won’t have the force of law, and will reflect political commitments rather than legal obligations—while some may be legally binding treaties. Legally binding agreements will often need the advice and consent of 2/3 of the Senate before they can be ratified, with some narrow exceptions for executive agreements and congressional-executive agreements. (I could do an entire installment of Foundations on different types of international instruments, but for now, suffice it to say that whether a binding agreement can be an executive or congressional-executive agreement instead of a treaty that requires advice and consent depends in large part on whether there are sufficient existing authorities for such an agreement to be agreed to and implemented.) Both binding agreements and significant nonbinding instruments need to be reported to Congress under the Case-Zablocki Act. Some treaties may also need Congress to pass implementing legislation that enables the U.S. to fulfill its obligations under the agreements.
Foreign assistance, while provided through the State Department and, until this year, USAID, is authorized and appropriated by Congress, pursuant to Article I of the Constitution. Statutes such as the Foreign Assistance Act also allow Congress to place some restrictions on that aid (more on this below). Congress can also conduct oversight of U.S. foreign policy by holding hearings, requesting documents, and instituting reporting requirements for the executive branch.
..or is it?
No bilateral relationship is completely free from drama, however. The Genovian Deputy Chief of Mission (DCM), having imbibed too much Genovian sparkling wine at a national day celebration, drives his car through a fence at the National Zoo, unleashing a herd of elephants on the neighborhood (including one particularly unfortunate Starbucks). Several pedestrians and two baristas are injured. While the DCM would ordinarily enjoy diplomatic immunity, the State Department can decide whether to ask Genovia to waive the DCM’s immunity, so that he can be criminally prosecuted. (This, again, falls under the president’s foreign affairs power.)
But wait! There’s more! Many corporations in Genovia are state-owned, including a company that leases satellites to U.S. telecom companies. The Genovian company has just breached a major contract that left a U.S. company foundering and on the brink of bankruptcy. The U.S. company decides to sue in U.S. court—something it can do thanks to the Foreign Sovereign Immunities Act (FSIA) passed by Congress in the 1970s.
While in many circumstances foreign governments are immune from being sued in U.S. courts, the FSIA provides some exceptions to that immunity, such as when the foreign state engages in commercial activities or commits a tort in the U.S. that results in injury, death, or damage to property. Nor is the FSIA the only instance where the judiciary touches on foreign affairs and international law: the Constitution provides authority for the judiciary to hear cases involving treaties, cases affecting ambassadors, and cases of admiralty and maritime jurisdiction, among other areas. Though courts will decline to hear some cases related to foreign affairs under, for example, the political question doctrine, they have also decided numerous cases with wide-ranging implications for foreign policy, on everything from habeas corpus petitions for enemy combatants, to suits by foreign nationals seeking redress for human rights violations committed outside the U.S., to questions of whether treaties are self-executing or require implementing legislation from Congress.
Things in Genovia continue to devolve.
Unfortunately, the collapse of the Genovian satellite industry was just the tip of the iceberg. Genovian generals, unhappy with rampant corruption among the political elite, carry out a military coup d’état that overthrows the prime minister and dissolves the parliament. For some inexplicable reason, the generals decide to install a monarchy, and it appears Genovia’s brief experiment in democratic governance is over.
Unfortunately for Genovia, the Foreign Assistance Act contains a restriction on providing U.S. foreign assistance to governments that have deposed an elected leader through a military coup. Those restrictions will remain in place until the State Department certifies to Congress that a democratically elected government has once again taken office.
There are other options the U.S. can take as well: pursuant to legislation enacted by Congress, such as the Global Magnitsky Human Rights Accountability Act, the executive branch can impose sanctions on Genovian officials responsible for gross violations of human rights, including extrajudicial killings that may have occurred during the coup, and can also impose visa restrictions limiting their ability to travel to the United States.
Genovia leaks its plans to conduct military strikes against the U.S.
It turns out Genovian princesses really, really don’t like sanctions.
In retaliation for U.S. actions, Genovia decides to carry out a number of secret military strikes against U.S. assets, including the bombing of a U.S. airfield in another European country, as well as cyberattacks on U.S. cell phone towers and power plants (Genovian state-owned satellite companies don’t like sanctions either, apparently). The plans leak, however, and the U.S. must decide whether it is justified in committing preemptive strikes in self-defense.
Under the Constitution, Congress has the power to declare war. As those of you who have been following our coverage of the recent U.S. military strikes will recall, however, the President has not infrequently asserted the ability to carry out certain military strikes pursuant to the Commander-in-Chief power, with varying levels of Congressional pushback.
The U.S. and Genovia give peace a chance.
France and Italy are not pleased with these developments, and convene an urgent meeting of U.S. and Genovian officials in Lake Como, Italy. Representatives from the State Department and the Department of Defense meet with officials from the Genovian Ministry of Foreign Affairs, and after herculean efforts from George and Amal Italy and France, a peace agreement is signed. That agreement, which contains a series of legally binding obligations and requires implementing legislation, will go to the Senate for (you guessed it) advice and consent.
In conclusion, Anne Hathaway has a lot to answer for.
If you’ve stuck with me this far—thank you! Any overview of the day-to-day work of foreign affairs that makes it in under 2,000 words is, by its nature, going to be under-inclusive, but I hope this gives us something we can continue to build on going forward. If this has inspired further questions, or ideas for future topics you’d like to hear about, please feel free to drop a comment or send me an email. And as always, you can find additional resources, including regular short videos on current events, on our social media channels.
Alexis
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