Congressional Administration of Foreign Affairs

Article — Volume 106, Issue 2

106 Va. L. Rev. 395
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*Associate Professor of Law, Boston University School of Law, and Senior Fellow, Reiss Center on Law and Security at NYU School of Law. I am indebted to Julian Arato, Jack Beermann, Pam Bookman, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Kathleen Claussen, Ashley Deeks, Kristen Eichensehr, Ryan Goodman, Rebecca Hamilton, Kathryn Kovacs, Harold Krent, Gary Lawson, David Lewis, Henry Monaghan, David Noll, Anne Joseph O’Connell, Nicholas Parrillo, David Pozen, Michael Ramsey, Robert Sloane, Peter Spiro, Kevin Stack, and Matthew Waxman, as well as participants at the Duke-Yale Foreign Relations Law Roundtable, the Vanderbilt International Law Roundtable, the NYU Hauser Colloquium, the Berkeley Law Public Law & Policy Workshop, the Junior International Law Scholars Association Workshop, the AALS New Voices in Administrative Law workshop, the Fourth Annual Administrative Law New Scholarship Roundtable, and faculty workshops at Brooklyn, BU, Cardozo, Hastings, Fordham, and Rutgers Law, for generous discussions and feedback on drafts at many stages of this project. For excellent research assistance, I thank Chloe Aubuchon, James Black, Caroline Lambert, and Tyler Shearer.Show More

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decision making, the weight accorded the position of any given decision maker, and the context in which the decision is made together shape the ultimate position the President takes.

This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying “process controls,” as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Introduction

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the line between Congress and the President’s formal authority is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

But presidential primacy is not the end of the story. While the President might wield far-reaching control over the nation’s foreign affairs and national security policies, Congress can shape the President’s position, and thus the foreign policy of the United States, without necessarily mandating the substance of that policy itself.

This Article explores and critiques the foreign policy role Congress can—and does—play through structuring and rearranging the relative powers of internal executive branch actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings.

A recent example illustrates the point. In 2017, the newly elected President threatened a trade war with China, Mexico, Canada and other longtime allies and competitors around the globe, proposing high tariffs on imports of steel and specific products, such as foreign-made vehicles.1.The President’s 2017 Trade Policy Agenda,Office of the U.S. Trade Representative (2017), https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times (Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR].Show More His own political party controlled the House and Senate, but there was little appetite in Congress for raising tariffs. So he turned inward, looking to his own cabinet to effectuate his plans. Government lawyers dusted off a rarely-used delegation from Congress, Section 232 of the Trade Expansion Act of 1962, which permits the President to adjust restrictions on imports when the Secretary of Commerce finds that they impose a threat to national security.2.19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018).Show More

With his statutory authority contingent upon meeting this procedural requirement, the President demanded that the Commerce Secretary consider the effects on national security of steel and aluminum imports, asserting meanwhile, in an expansive interpretation of this statutory exception, that the nation’s economic welfare is itself a matter of national security.3.Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017).Show More The Secretary of Commerce, following the statute’s requirements, consulted with the Secretary of Defense, who told him, in a diplomatically-worded missive, that the adjustments proposed by Commerce were in fact unnecessary for national security, and could have negative consequences for U.S. relationships with important allies.4.Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”).Show More Those steps taken, and despite the Defense Secretary’s warning, the President moved ahead on the Commerce Secretary’s report, imposing additional tariffs on both steel and aluminum imports.5.Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9.Show More

Members of the President’s own party in Congress issued unusual rebukes of the President’s action, denouncing the measures as a “tax hike on American manufacturers, workers and consumers,”6.Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8].Show More asking the President to dial back the global tariffs,7.Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill(Apr. 5, 2018, 5:17 PM),https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU].Show More and most recently passing legislation mandating a report from the Secretary of Commerce.8.Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. SeeSteven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report).Show More Congress did not, however, exercise its power to withdraw the President’s authority to adjust imports, an authority that Congress itself had given to the President through increasingly expansive delegations since the 1930s.9.See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs).Show More

Yet congressional reticence to reassert dominance over trade policy is not the end of the story. There is another tool of control that members of Congress might deploy and which, despite increasingly relinquishing power to the President, Congress has used several times before in order to influence the direction of U.S. trade policy. And that is to restructure the decision-making process inside the executive branch in order to preference decision makers and processes more likely to favor their preferred outcomes.

Indeed, members of Congress have introduced several bills seeking to do just that. In 2018 and 2019, several bipartisan groups of lawmakers introduced bills in both the House and Senate to retract from the Secretary of Commerce the power to invoke a national security justification for raising tariffs on foreign imports.10 10.Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018).Show More The bills would grant that power instead to the Secretary of Defense—the very cabinet secretary who had, as the bill proponents surely noticed, criticized the Commerce Secretary’s proposed indiscriminate tariffs.11 11.See Letter from Mattis to Ross, supranote 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman].Show More Such micro-management over the executive branch decision maker is not an untested tool for Congress. In fact, the bills would make the Office of the Defense Secretary at least the sixth distinct congressionally designated executive branch office to wield that authority since Congress began delegating away its power over the nation’s trade policy.12 12.See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus. 589, 590–93 (1989) (detailing the ways in which Congress has empowered other agencies to conduct trade policy). The executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id.Show More

Why might members of Congress who want to challenge the President’s trade policies deploy an indirect tool of micro-management over the executive branch’s decision-making process, rather than simply direct the policy themselves through substantive legislation? And could such an indirect tool have any real effect?

In fact, indirect tools such as the choice of executive branch decision maker or the restructuring of internal decision-making processes can entirely redirect the President’s policy outcomes, and members of Congress often have reason to prefer these mechanisms to more direct legislation. Thus, while Congress may defer or even delegate to the President on matters of substantive foreign policy—and while members of Congress may not rest assured that the President will implement their will even when they do mandate substance—Congress may nevertheless shape the nation’s foreign policy through what I term “congressional administration.”13 13.I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2248 (2001). Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006).Show More

Congressional administration, as I define it here, is the management and manipulation of internal executive branch decision-making processes for the purpose of advancing a substantive agenda. Congress has an array of measures that it may deploy to influence the nation’s foreign policy, short of mandating the substance itself. These “process controls” include familiar tools such as agency design and procedural requirements, but they also include the designation and reassignment of decision makers within the executive branch. Each of these may be deployed for different purposes, with different effects and risks, and each may have significant effects on the ultimate policy direction the United States takes.

This Article sits at the intersection of two broad bodies of literature: one on congressional-executive turf wars over foreign affairs and national security, and one on agency design and political control over the bureaucracy. Scholars have long debated the proper constitutional allocation of power between the President and Congress over the direction of the nation’s foreign policy. As a practical matter, however, the conventional wisdom holds that “the President (almost) always wins in foreign affairs.”14 14.Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies, 4 Trans-Action 7 (1966) (arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda).Show More The reasons for presidential primacy are legion: institutional competence; asymmetrical expertise and information; and more costs than benefits to Congress in engaging. Moreover, many argue that even when Congress does engage directly and substantively on a matter, the President often manages to assert authority to act, either by interpreting his statutory authorities broadly,15 15.See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable).Show More or by claiming a constitutional prerogative to act unilaterally,16 16.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More or even by skirting the legal constraints altogether.17 17.For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD].Show More

But the fact that the President usually “wins” vis-à-vis Congress does not mean that the position the President ultimately chooses to take is preordained. Nor does it mean that the policy the President ultimately adopts at the end of what is often a long and contentious decision-making process is the one he would have chosen if all possible options were simply laid out before him at the outset. In fact, presidential primacy does not even mean that the policy the President ultimately adopts has actually received the personal sign-off of the President.

Indeed there is another dynamic beyond that of the President-Congress relationship that is essential to understanding foreign policy positioning and is as much of a hotbed for diversity of opinion. This is the multi-faceted, many-headed organism that is the executive branch bureaucracy. That there is a diversity of opinion within the executive branch, especially on matters of foreign policy and national security, should be clear these days to anyone who picks up a newspaper.18 18.Or, if this is anachronistic, then to anyone who is on Twitter.Show More That the process for decision making inside the executive branch influences the resulting policies is perhaps less intuitive, particularly to those who envision a unitary executive headed by a willful President with his fingers in every pot. And yet it is so. Furthermore, there exist opportunities for influencing these processes, and thus the resulting policy, from the outside. Of specific relevance here, Congress has robust means at its disposal to shape these processes and thus the resulting decision.

I have written previously about the multiplicity of decision makers, processes, overlapping interests, and conflicting proclivities inside the executive branch, and the potential for external actors to shape the President’s positions by triggering different decision-making pathways.19 19.Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts].Show More I focused in prior work on the role of litigants, nongovernmental organizations, and international treaty bodies in prompting different processes and the potential for achieving different outcomes.20 20.Id.Show More But members of Congress have far greater opportunities than most for triggering and even for restructuring different decision-making pathways, including for designating their preferred internal official as the decider over a given matter.

While executive branch decision making may at times appear opaque from the outside—particularly in the realm of foreign policy and national security—savvy government watchers, scholars, and even members of Congress can often glean a sense of its inner workings: which matters are subject to internal debate, who within the administration may be inclined toward particular policies, and where the pressure points lie for decision making.21 21.In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018).Show More Actors inclined to lean into these pressure points may therefore find they can influence policy outcomes simply by exerting influence on the shape of executive branch decision making.

Members of Congress have especially potent tools for shaping the process of decision making, through legislation directly creating procedural requirements or designating decision makers, as well as through “soft” mechanisms such as requests for testimony from particular executive branch officials,22 22.See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes).Show More all of which can shape and shift presidential priorities, force to a head executive branch decisions, exacerbate internal tensions, or place a thumb on the scale in favor of a particular set of actors engaged in intra-executive branch conflict. Through the use of these process controls, Congress can and does shape the process of executive branch decision making and influence policy without necessarily mandating a particular substantive outcome.

This Article proceeds as follows: Part I first considers scholarly debates over the legal and practical allocation of the foreign affairs power, including the extent to which Congress is able effectively to constrain the President in this sphere. Acknowledging the practical reality of presidential primacy in matters of foreign affairs, it turns to scholarship considering the interaction of Congress with the internal workings of the executive branch bureaucracy. This scholarship largely brackets off the fields of foreign policy and national security, thus bringing insights from administrative law and political science scholarship on political control of the bureaucracy to bear on debates about the allocation of foreign policy power is one contribution of this Article.

Part II introduces and classifies what I term “process controls,” the mechanisms that Congress may deploy to influence the executive branch decision-making process, and through it, the shape of foreign policy. Two types of measures that I include within the term process controls—agency design and the imposition of administrative procedures—have been the subject of significant scholarship in both administrative law and political science.23 23.See infra Part II.Show More I therefore consider these each in turn in order to examine their relevance and influence on questions of foreign policy and national security, which are generally excluded from scholarship concerning agency design and administrative procedure.

I devote the majority of this Part, and of the Article, to identifying and analyzing a specific type of process control that has not been the focus of scholarship: the designation of executive branch decision makers. Among the controls I discuss in this Article, Congress wields significant, targeted control over decision making inside the executive branch simply through its choice of the intra-executive decider. This is not a one-off decision; Congress may—and does—reassign the decision maker as new events arise or policy preferences shift. Members of Congress thus may seek to shift a delegation of authority horizontally, from one executive branch official or office to another who may espouse policy preferences more in sync with their own. Or they may allocate power vertically, such as upward toward a high-level official if they are looking to increase political accountability for a decision, or downward to professionals and technocrats when seeking to buffer an issue from partisan politics. Or they may try to diffuse power, perhaps as a means of constraining government action, by requiring consultation among or even certification by several different officials.

Part III considers the implications of Congress turning to process controls to shape foreign policy. It considers when and why Congress might turn to process controls over more direct efforts to mandate substance, and which particular process controls are likely to be effective at implementing particular purposes. This Part also probes the unique constitutional questions raised by congressional administration of foreign policy, as well as the risks at stake—risks to good government and to accountability for decision making.

In considering the influence of internal decision makers and processes on executive branch policy and Congress’s ability to influence its direction through these processes, this Article also adds texture to debates about a “unitary executive” model of executive branch decision making. I discuss the implications of process controls for formal doctrine and the potential for judicial review in Part III. But the influence of process controls on policy I discuss in this paper more broadly provides a functional critique of unitary executive theory. Wherever the line ultimately falls on the formal powers of the President over those within the executive branch, the multiplicity of decision makers and processes will always provide practical opportunities for influencing and even manipulating executive branch policies, from within the executive branch and without.

Congress has ceded significant ground to the President on matters of foreign policy and national security, and continues to do so, often abdicating its responsibility to craft policy or to provide substantive, rigorous oversight. Moreover, Congress has at times lost ground to the President even when it has attempted to assert its prerogative.24 24.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More But this Article nevertheless challenges views of the presidency as completely untethered to law or to congressional constraint. Congress may be overly timid in this space, and it may at times be ineffective. But it can and does exercise its power to shape foreign policy short of mandating substance, and it could deploy these process controls even more instrumentally to impel decision making in its preferred direction. Though the focus here is on foreign policy and national security decision making, this con­sideration of process controls has relevance beyond these spheres, to still-nascent questions of how Congress interacts with the levers and pulleys effectuating decisions inside the executive branch.

  1. * Associate Professor of Law, Boston University School of Law, and Senior Fellow, Reiss Center on Law and Security at NYU School of Law. I am indebted to Julian Arato, Jack Beermann, Pam Bookman, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Kathleen Claussen, Ashley Deeks, Kristen Eichensehr, Ryan Goodman, Rebecca Hamilton, Kathryn Kovacs, Harold Krent, Gary Lawson, David Lewis, Henry Monaghan, David Noll, Anne Joseph O’Connell, Nicholas Parrillo, David Pozen, Michael Ramsey, Robert Sloane, Peter Spiro, Kevin Stack, and Matthew Waxman, as well as participants at the Duke-Yale Foreign Relations Law Roundtable, the Vanderbilt International Law Roundtable, the NYU Hauser Colloquium, the Berkeley Law Public Law & Policy Workshop, the Junior International Law Scholars Association Workshop, the AALS New Voices in Administrative Law workshop, the Fourth Annual Administrative Law New Scholarship Roundtable, and faculty workshops at Brooklyn, BU, Cardozo, Hastings, Fordham, and Rutgers Law, for generous discussions and feedback on drafts at many stages of this project. For excellent research assistance, I thank Chloe Aubuchon, James Black, Caroline Lambert, and Tyler Shearer.

  2. The President’s 2017 Trade Policy Agenda, Office of the U.S. Trade Representative
    (2017)

    , https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times

    (

    Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR].

  3. 19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018).
  4. Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017).
  5. Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”).
  6. Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9.
  7. Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8].
  8. Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill

    (Apr. 5, 2018, 5:17 PM), https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU].

  9. Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. See Steven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report).
  10. See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs).
  11. Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018).
  12. See Letter from Mattis to Ross, supra note 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman].
  13. See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus.
    589, 590–93 (1989) (

    detailing the ways in which Congress has empowered other agencies to conduct trade policy)

    . T

    he executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id.

  14. I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration,
    114

    Harv. L. Rev. 2

    245, 2248 (2001)

    . Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006).

  15. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.

    1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies,

    4

    Trans-Action 7

    (1966) (

    arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda)

    .

  16. See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable).
  17. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).
  18. For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD].
  19. Or, if this is anachronistic, then to anyone who is on Twitter.
  20. Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.

    359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts].

  21. Id.
  22. In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018).
  23. See Josh Chafetz
    ,

    Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes).

  24. See infra Part II.
  25. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).

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  Volume 106 / Issue 2  

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