Congress can and should legislate foreign policy

Some are wont to say: it’s well known, the President is the “chief architect of foreign policy” and thus foreign affairs is “not a subject for legislation.” They may even add: “that’s basic first year law school stuff.” The problem with that misguided thinking is that we’re not in first year law.

Congress not only can set foreign policy, it is mandated to do so. What is law but the enactment of policy? And by our Constitution, it is the Congress that makes laws. The President, by his oath alone, is duty bound to execute them. If Congress makes a law, a.) setting foreign policy (e.g., to implement the Arbitral ruling against China); or, b.) enacting a foreign relations-oriented budget (e.g., emphasizing the protection of our territory), then the President is constitutionally required to implement such laws.

The simple fact is: our Constitution never said it’s the president that should exclusively formulate foreign policy.

Or, put another way, the formulation of foreign policy is a responsibility delegated by the People to the government.

And when we say government, it means the three equal branches: the Executive, the Legislative, and the Judicial.

While, yes, the power to negotiate treaties lies with the Executive and, yes, our Supreme Court indicated (in PMPF vs. Manglapus, Bayan vs. Executive Secretary, and Akbayan vs. Aquino) that the president is our top diplomat (even admirably going so far as to quote Alexander Hamilton via “Federalist 75”) for which in “the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade,” nevertheless, it is a stretch — in fact, with all due respect, actually ill-advised — for the Supreme Court to label the president as the “chief architect of the nation’s foreign policy.”

Nowhere in the Constitution does it say that.

“Architect of foreign policy” is one of those tropes the Supreme Court is oft found to repeat. Another is the common claim that the final defender of the Constitution is the Supreme Court. Both are grand statements that find no basis in the text of the Constitution.

In fact, despite constant reference to “Federalist 75,” the Supreme Court inadvertently failed to mention one hugely important caveat by Hamilton therein: that “it would be utterly unsafe and improper to intrust [sic] that power” of foreign policy-making solely with the president.

The Constitution’s prudence actually dictates that the formulation of foreign policy be done by the three branches of government.

As expressly written in the Constitution, the president indeed has exclusive authority in negotiating and entering into international agreements. But those agreements must be pursuant to a policy.

And such a policy is not made by him alone but also with the authority of the other two branches (albeit, to a much lesser extent as far as the Supreme Court is concerned, which is merely to ensure the constitutionality of any treaty or executive agreement).

So, Congress in fact has no excuse to abdicate its mandate to formulate foreign policy.

Again, how can Congress formulate policy? To expand on that stated above — First, as written in the Constitution: the Senate has the power to concur (or not) as far as treaties are concerned. And via the Commission on Appointments, the Congress is able to have a say as to who our country’s ambassadors and other such representatives are.

Regarding executive agreements (which require no Senate concurrence), it is a pity that Congress has so far been complacent or downright apathetic in this matter.

Executive Order No. 459/s.1997 (revising Memorandum Circular No. 89/s. 1988), granting the Foreign Affairs Secretary sole authority — without any practical criterion — to determine which are treaties and executive agreements, is an anomaly. Congress should promptly correct this by making a law laying down the concrete, clear, and definitive standards delineating what is what.

It should be made clear by Congress that the president cannot enter into an executive agreement unless it is pursuant to an existing law or treaty that the Senate has given concurrence to.

And the authority to determine whether such is indeed a treaty or executive agreement should not be left to the Executive (which negotiated it) but rather with Congress (although allowing advice from the Department of Foreign Affairs). Doing so would avoid complications in the past, like that of the JPEPA (the Japan-Philippines Economic Partnership Agreement) which almost did not go through the process of Senate concurrence, or EDCA (the Enhanced Defense Cooperation Agreement).

Congress also has the power to determine foreign policy simply by making laws declaring such policy. It must be remembered that the top policy making body of the land is Congress, whose members are the directly elected law-making representatives of the people. The president’s expressed job is to implement laws.

The president can be said to have taken the lead in foreign policymaking only because Congress allowed him to do so. But, as stated here, foreign policymaking should be the job of the government’s three equal branches.

Thus, Congress, perhaps with input from other government agencies, is empowered to legislate a foreign policy framework or even a detailed one, which the Executive is duty bound to carry out.

There is also, of course, Congress’ “power of the purse,” with which to influence (even control) foreign policymaking.

And — most importantly — there is Congress’ function of conducting public hearings (in aid of legislation) that enable our people to get more information and even participate directly in the making of laws that affect foreign policy.

Philippine foreign policy is a team effort. It cannot stand on the intuitions or “genius” of one man. In our Republic, no one official can claim l’etat c’est moi (I am the state) and definitely never ever apres moi, le deluge (after me, the deluge).

Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

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