Foreign Policy by Congress. By Thomas M. Franck and Edward Weisband, New York and Oxford: Oxford University Press, 1979. Pp. ix, 357. $15.95.
If the complex litigation in Goldwater v. Carter provides no other clear lesson, it is a convincing demonstration that much of the constitutional law governing executive-legislative relations remains confused and ill-defined. With the Supreme Court's refusal to adjudicate the issue on the merits, the power to terminate treaties is consigned to a constitutional terra incognita where the boundaries of power must be achieved by de facto institutional practice rather than by legal theorizing. Whether this is a wise exercise of "the passive virtues" is open to dispute. It is, however, the way that the American political system has chosen to handle a number of salient problems in executive-legislative relations--problems such as the power of the President under the guise of "executive privilege" to withhold information from Congress, the limits of presidential war-making power, and a host of others. Insofar as such disputes between Congress and the Executive Branch reach the courts, they characteristically are analyzed in terms of jurisdictional concepts Csuch as standing, ripeness, justiciability, and the political question doctrine) that avoid, or at least camouflage, the underlying substantive issues. Yet is is not inappropriate that these cases so often raise these jurisdictional issues, for the core problem in such disputes is evaluating the institutional capacities of the various organs of the national government. Indeed, reluctance to evaluate or confusion about how to evaluate the institutional capacities of Congress and the presidency accounts for much of the incoherence of the constitutional law of executive-legislative relations. It is in this context that Franck and Weisband's Foreign Policy by Congress is to be recommended to any serious student of Goldwater v. Carter, for whatever legal principles finally come to govern the power to terminate treaties must, if they are to be viable, be founded on the underlying realities of presidential and congressional power. Thus such disputes must ultimately be evaluated in light of how good Congress actually is at making foreign policy, and it is to this subject that Franck and Weisband address themselves.
Robert H. Hammel,
Franck & Weisband: Foreign Policy by Congress,
Yale J. Int'l L.
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