Justifying Constitutional Change in Foreign Affairs Outside of Article V

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Jide Nzelibe 

Professor Bradley’s most recent book, Historical Gloss and Foreign Affairs, makes a valuable contribution to our understanding of the role of historical practice in the constitutional allocation of foreign affairs powers.  His normative approach is largely Burkean: once we accept that legal stability is a compelling objective, it makes sense for courts to privilege the longstanding practices of the political branches in foreign affairs over other alternatives as a source of constitutional understanding. 

But Professor Bradley also recognizes that marginal changes to the constitutional structure in foreign affairs may sometimes be necessary to respond to unforeseen geopolitical developments.  The challenge is that the constitutional amendment process under Article V is too rigid.  Significant changes to the foreign affairs powers have nonetheless occurred throughout U.S. history and have always occurred outside the formal amendment process mandated by Article V.   Professor Bradley documents many of these changes and argues that they may be justifiable on the basis that they have produced a better state of affairs and have been ratified by the continuous practices of the political branches.  One of his most striking examples is that executive agreements have since displaced treaties as the primary process through which the United States enters into international agreements.

It is the nature of Professor Bradley’s account of constitutional change outside of Article V that I wish to focus my attention.   What are the conditions under which changes to constitutional practices in foreign affairs can be perceived as legitimate, even if they are imposed unilaterally by presidents or other political actors?  Professor Bradley suggests two pragmatic conditions.  First, the change should be ratified by downstream political actors across multiple electoral cycles.  Second, the constitutional change should be gradual and incremental in a manner analogous to the evolution of the common law.  In this account, presidents and other political actors can tinker on the margins with constitutional practices in foreign affairs and allow them to be abandoned or gradually refined if they fail to work out.  Presumably, those incremental changes to the foreign affairs constitution that stand the test of time are likely to be mutually advantageous, or else they will be discarded.

In pondering how the foreign affairs constitution may change over time, three factors are worth considering.  In my view, these factors do not call into question Professor Bradley’s central thesis, but they may require us to think critically about the outer limits of beneficial constitutional evolution outside of Article V.   First, the constitutional changes precipitated by the President in foreign affairs need not always be gradual or incremental.  They can be sudden, significant, and disruptive.  Second, certain changes to the constitutional structure in foreign affairs may become sticky even when they are not welfare-enhancing.  For instance, it is plausible that vested interests may have sufficient clout to protect constitutional changes that benefit them at the expense of the rest of society.  Third, constitutional changes may set in motion processes and bureaucratic arrangements that become relatively entrenched, making reversals or even tweaks by Congress or future presidents difficult.

Thus, Congress or future presidents may acquiesce to a new constitutional change not because they find it mutually beneficial but because they are confronted with what seems like an irreversible fait accompli.  Conversely, constitutional arrangements in foreign affairs may collapse not necessarily because they are inefficient or poorly adapted to present conditions but because political actors may lack sufficient support from vested interests to ward off downstream threats. 

The contemporary decline in the oversight role of the Senate Foreign Relations Committee underscores this point. Historically, at the height of its institutional prominence during the post-WWII era, this Senate Committee served as a bulwark against the risk of executive branch overreach in foreign affairs.  It was infused with a sense of purpose and tended to attract the most capable Senators who took their oversight roles very seriously.

However, without the support of well-connected vested interests and a decline in bureaucratic capacity, the Senate Committee lost its ability to serve as a powerful counteracting force against presidential empire-building in the post-Cold War era.   In her extensive study of the Committee, spanning the years 1947 to 2008,  Linda Fowler argues that the breakdown of the Cold War consensus, frequent turnover, expanded committee portfolios, and flattening of the committee hierarchy all eventually contributed to the rapid loss of its prestige and its ability to recruit informed and experienced Senators.[1]   Moreover, the changes that precipitated the decline of the committee’s influence were not necessarily incremental; on the contrary, there was a dramatic erosion of the Committee’s oversight activity in the mid-1990s.  Fowler argues, quite convincingly, that creating a legislative support agency devoted to foreign affairs, similar to the Congressional Budget Office (CBO), may help institutionalize the Committee’s advisory and oversight roles.[2]   

The decline of the Senate Foreign Relations Committee suggests that institutional arrangements in foreign affairs may not persist simply because they may be socially beneficial.   It may also help if such arrangements enjoy the support of deep-pocket vested interests.  Thus, one way to salvage the Senate Foreign Relations Committee’s influence may be to expand the base of vested interests that profit from institutionalizing its oversight role.  However, in the absence of such increased institutional capacity fueled by vested interests, it is unlikely that the Senate Foreign Relations Committee, and by extension, Congress, will play much of a meaningful role in shaping future constitutional practices that may eventually constitute historical gloss. 

While vested interests may sometimes benefit from the stability accorded by historical gloss in foreign affairs, they may also benefit from developments that subvert it.  Consider, for instance, the dramatic breakdown of the convention of presidential restraint in national security protectionism. Under section 232 of the Trade Expansion Act of 1962, Congress delegated to the President significant discretion to impose import restrictions that may impair national security.^[3]  However, throughout the statute’s history, presidents exercised strategic self-restraint and rarely awarded relief to industries that filed petitions on national security grounds.  In 2018, President Trump decided to buck this longstanding presidential convention and imposed a 25 percent tariff on imported steel articles and a 10 percent tariff on aluminum imports from various countries. That decision sparked an international outcry, leading to retaliatory measures from the European Union and other trading partners.  

What is somewhat intriguing is the rapidity with which this convention of presidential restraint broke down.  Of course, one might quibble and argue that this convention was not a legally binding practice.  But it is precisely such longstanding executive branch conventions that constitute the grist of the historical gloss that Professor Bradley describes.  Such conventions are likely to play a role in the judicial shaping of legal understanding when the constitutional text is vague or indeterminate. 

In any event, this abrupt and sudden change in executive branch practice paved the way for a broader range of industries to lobby to protect their products from foreign competition on national security grounds.  This non-incremental move has already unleashed forces that might make it more difficult for a future administration to reverse course, thus setting the stage for a new executive branch convention that shapes historical gloss.  The Biden administration inherited this new norm of greater presidential discretion in national security protectionism and sought to adapt it to pursue its policy purposes.  If this new convention endures over multiple electoral periods, it may be because it reinforces and entrenches a pattern of industry rent-seeking on national security grounds.

Thus far, the discussion suggests some friendly amendments to Bradley’s rich account of constitutional change in foreign affairs outside of Article V.   A special lesson in this analysis may be that not all longstanding constitutional changes in foreign affairs are equally appealing on historical gloss grounds.  

First, constitutional changes forged by the practices of the political branches may be most normatively appealing and deserving of judicial deference when the distributional effects of such changes are diffuse and long-term.  The more common examples of historical gloss in foreign affairs provided by Professor Bradley—such as congressional-executive agreements, the delegation of authority to use force, and the power to recognize foreign governments—likely fit this bill.  In such cases, the judicial costs of second-guessing the established wisdom of the political branches on how to share their authority are likely to be too high.  At the same time, any benefits from judicial oversight are likely to be too speculative.  Courts are not especially suited to addressing constitutional grievances in foreign affairs that have diffuse and long-term effects.  Moreover, since vested interests are likely to be indifferent to such constitutional changes, there is less likely a risk that the process of change may be subject to capture or parochial considerations.

            Second, and by contrast, constitutional changes forged through historical gloss may be less deserving of judicial deference when the distributional effects of such changes are likely to be immediate and concentrated. To be sure, these kinds of constitutional changes are also likely to provoke intense political opposition.  However, the success of the political branches in overcoming any opposition and imposing change does not necessarily indicate that such change will be welfare-enhancing.  For instance, it is plausible that the durability of such constitutional change may be achieved by entrenching the base of government support in one constituency (for instance, import-competing groups) at the expense of another (for instance, export groups). 

To summarize, any attempt by the political branches to impose a new constitutional practice in foreign affairs that foists radically unequal burdens on social groups may be worthy of greater judicial scrutiny.  In such circumstances, more intrusive judicial review is likely to be information-forcing.  Moreover, parties are more likely to meet the standing threshold for bringing claims when they are singled out for special burdens in foreign affairs.  Justice Jackson long ago acknowledged the need for judicial intervention whenever there are risks of uneven burdens in the application of the laws :

[N]othing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure therefore to assure that laws will be just than to require that laws be equal in operation.[4]

Jide Nzelibe is the Howard and Elizabeth Chapman Professor of Law at the Northwestern Pritzker School of Law and may be reached at j-nzelibe@law.northwestern.edu.