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Why Trump’s ‘Foreign Policy’ Impeachment Defense Will Fall Flat
Trump says he’s constitutionally allowed to pressure foreign countries to do his bidding. He’s misreading our laws.
With public impeachment hearings set to begin next week, Republicans are struggling to find a coherent defense that can withstand the new evidentiary blows coming their way almost every day. The days of arguing “no quid pro quo” have come and gone, and Trump’s repeated exhortations to “read the transcript” don’t help him, since the document, which was released by the White House, only confirms the allegations against him.
Among the new administration trial balloons being floated is a constitutional argument: Trump’s actions amounted to the president crafting “foreign policy.” The theory of the case seems to be that the president has the power to unilaterally dictate foreign policy, and therefore Trump’s withholding aid for Ukraine, in sync with pressure to investigate the Bidens, cannot be a basis for impeachment. This defense is not only wrong as a matter of law and practice, it has the potential to backfire spectacularly against Trump.
It’s true that among the branches, the executive has the most latitude and discretion in the realm of foreign affairs. This is spelled out in powerful language in the 1936 Supreme Court case United States v. Curtiss-Wright Export Corp., which notes the president’s “plenary” foreign affairs authority and his role as the nation’s “sole organ” in international relations. Not surprisingly, this case is a favorite for supporters of expansive presidential power — the sweeping language appears to suggest unfettered presidential discretion in foreign policy.
What people often forget to mention is that Curtiss-Wright is actually a case where Congress delegated foreign affairs authority to the president. In fact, the legal question raised was whether Congress had unconstitutionally delegated too much discretion to the executive branch.
The case is an illustration of how the president’s power over foreign affairs can be shaped, expanded, or constrained by Congress’ constitutional powers in this area. Consider, for example, the Senate’s authority to ratify treaties negotiated by the president — it can…
