Foreign Assistance Is Unconstitutional (continued)...

... unless the President controls everything. Congress just writes the checks. According to the Trump Administration. (Part 2)

The constitutional argument for authoritarian rule continued. (See Part 1 here.)

Chad Well, thank you very much to our panelists for those opening remarks. So we'll transition now at the back half of our allotted time to questions and answers. I'll start off with a few questions I have for our panelists. I encourage our listeners to please use the chat function and submit your questions as well, so that we can seek to get those in. So first question, let me direct it to you, Bob, though I invite our other panelists to answer as well.

Historically one problem we've seen in this area is a lack of transparency and accountability. And you hit on that. Even if Congress approves of spending, it can be difficult to figure out where American tax dollars are going. But one of the ways our Constitution helps with that is by vesting all of the executive power in a single President of the United States. And that way, the American people know who is in charge, ultimately, of executing the law, even executing spending laws. But of course, no President can do everything personally. Presidents have to instead rely on executive agents, like agents in the State Department. Can you speak to the importance of State Department officials, therefore, adhering to that kind of constitutional chain of command when it comes to executive policy and how that might better bring some transparency and accountability to foreign aid?

Destro That's a great question. The short answer is that those of us who were Senate-confirmed have executive authority to do our jobs. That means that the first conversation literally I had in a staff meeting with my funding people was just ask an offhand question: so what are we doing in Hong Kong? This is a true story. And the answer was, well, you know, sir, that's very confidential. To which I responded, well, don't I write the checks? To which the response was, “Hey, it's still very confidential.” Then I held up my badge and said, “I have a higher security clearance than you do.” And from that time on, it was a fight over access to information.

The reality is nobody in our government really knows where the money's going. And without knowing what the money looks like on the receiving end… I can tell you exactly in a country in Central America where the Millennium Challenge Corporation is trying to buy out that country's education system. Is that a good idea or a bad idea? My reaction is I think it's a bad idea, you know. But nonetheless the assistant secretaries and undersecretaries need to know that, so they can appropriately advise the President and the Secretary.

Ramsey Chad, can I just jump in real quick on that and say, first of all Bob, I'm shocked - I guess I'm not totally surprised but shocked - that is actually the way things are done, because, of course, in theory, that's not the way, constitutional scholars see the executive branch. On the constitutional point I agree with you on both. One, the President is ultimately the head of the Executive department and therefore the President has to know what's going on so that he can assure that what's going on with his policy. That's just the nature, in my view, of the President's control over the executive branch. But I think when we're talking about spending, particularly when the spending is discretionary from Congress and it's being allocated by the executive branch, the President has not only a policy power to supervise that spending, but I think also has a constitutional obligation to do that, to assure that the spending does in fact comport with constitutional requirements of common defense and general welfare. So I think your push to transparency is quite admirable and I also think it's constitutionally required.

Chad I'll just add to that, Mike, as you all are talking, I mean first of all, just the vesting of executive authority and the President, I think is alone enough to get the answer, but then also there is the opinions clause which in Article Two which gives the President the power to require the opinion in writing of the principal officer in each of the Executive Departments. That is an explicit clause in the Constitution. So to the it's to that extent it's alarming that individuals within government would not be assisting in elevating that policy information up to up to the chain in the executive branch. This is quite problematic. Victor, did you want to add anything on this, or should we move on?

Hanson I don't think these questions are new. When the Lend-Lease Act was passed by Congress and signed, I think in March 1941, the question was that there was no specificity about how that 50 billion dollars is going to be divided up. And what Roosevelt did - as Harry Hopkins was living in the White House - and he just dispatched him - he was very ill at the time; he had stomach cancer or ulcers. And he went over to Stalin and he asked what he wanted. And he came back and there had been no direction from Congress or the Roosevelt administration whether what was the percentage. They were concerned with the viability of some of the continental democracies that hadn't yet… when they had discussed the legislation… not when it was passed again after the fall. My point is that Harry Hopkins pretty much determined that a third, actually about 25%, or 20% of that $50 billion, $11 or $12 billion was going to go to Stalin and the Soviet Union. And there was really almost no congressional oversight of that. There was no transparency about the actual numbers. And I don't think that had been the intent of Congress when they authorized $50 billion. They thought that it was primarily going to go to Britain, and most of it did, and to a lesser extent what would become activated free forces later on. I think from the very beginning of these massive aid programs, Congress authorizes the aid, and then the President directs particular people. And at that point, absolute transparency in the decisions that are allocated and the divisions of that sum. It's pretty much a straight trajectory from that to, for example, Mark Moyer's recent book, 'Masters of Corruption', about USAID. You really don't have any back-and-forth or reporting or transparency which is too bad. But it started during World War II.

Chad Moving on to another question, we often hear about Congress's the power of the purse but of course that's really just kind of schoolhouse rock shorthand. The constitution doesn't really have a power of the purse and indeed you know it doesn't even have a free-floating spending clause. It has a taxation clause, which gives Congress the authority to raise money through taxes for different reasons. That's part and parcel with a concept called constitutional enumerationism. Could you speak a little bit about the concept of constitutional enumerationism. Why it was important to the framers? And how that should inform the constitutionality of spending in the foreign aid space?

Ramsey Big picture, the idea of enumeration is that the national government has only the powers that are listed in the Constitution. All other powers are reserved to the people or the states. And that was the idea that the framers of the original Constitution had of what would be a significant limit on the national government. It would only exercise these stated powers and not others. During the ratification, the anti-Federalists, the ones who opposed the Constitution, thought that that was not sufficiently clear in the Constitution. The Federalists said it was obvious and implicit. The result of that then was the Tenth Amendment, which states in clear terms what I just said, which is that the national government has only the powers delegated to it in the Constitution. So that's why we have to look for a particular power of Congress when we're talking about spending and why I don't think there can be an unlimited spending power because, as you say, there is no actual spending clause in the Constitution.

I think that the unlimited view, doesn't work as a textual and originalist matter, although it's popular among modern academics in particular. Then the question becomes, where does Congress get its power to spend? Madison's answer to that was it gets its power from the Necessary and Proper Clause, which says that Congress can regulate it necessarily and properly to its other powers and to other powers granted elsewhere in the Constitution. That's how Madison got to the idea that the spending power is tied to actual other specific listed powers. It wouldn't just be Congress's power. For example, Congress could spend to support the President's power to make treaties. So it would be other powers of other branches as well, but it would have to be something that's actually listed specifically in the Constitution. And then the Hamiltonian view that I referred to actually does see, sort of contrary to the premise of your question, that what you're calling the taxing power, that is the first clause of Article I, Section 8 that refers to the general welfare, the common defense and general welfare, that that is an authorization. It's an authorization not just to tax, but also to use the taxed money to support common defense and general welfare. This sounded to Hamilton - and sounded, I guess, to me as well - that that's something broader than just the other specifically enumerated powers of Congress. That's why Hamilton thought that the first clause of Article I, Section 8 goes beyond what Madison thought. Hamilton and Madison had conflicting views of the Constitution in the post-ratification era, and I think that's what it really turned on. Both of them were enumerationists in the sense that Congress had to point to a specifically delegated power, but their dispute was whether that first clause the taxing clause authorized spending that went beyond other powers of Congress.

Chad I'm sure you know we could talk about this all day in history but with only about 20 minutes or so remaining let me transition over now to some of the audience questions. So just to pick one we have one here from Dorothy Monza, Dorothy asks: In a world where diseases spread across borders, do you see a constitutionally grounded role for the U. S in strengthening global health systems to protect our national security?

Destro I mean infectious diseases are a national security problem. It's defense of the homeland. Nobody that I know argues that we shouldn't be engaged. You can quibble over the specific programs, but the fact of the matter is that we do foreign assistance to advance our foreign policy and national defense goals. So the question from my perspective as an administrator is, are we actually getting what we pay for? If we are, let's do it. You know, but it's still up to the President and the secretary to decide what gets done.

Ramsey Sorry, Chad, could I just say something real quick on that question? I just want to use this to illustrate the difference between what I've been calling the Madison. Madisonian view and the Hamiltonian view. I think under the Madisonian view, it might be something of a puzzle to figure out how Congress has power to spend in respect of infectious diseases outside the United States, because you would have to find a power of Congress somewhere in the list of Article I, Section 8 powers or somewhere else in the Constitution. And nothing in the Constitution really directly speaks to that.

I do think it's probably true that no one today would argue against that, but I think actually James Madison might well argue against it in the old days. But on the other hand, the Hamiltonian view, I think, would have no problem saying just basically what Bob just said - and what the premise of the question says - hat infectious diseases are a national security and general welfare threat to the United States. Once you say that under Hamiltonian view, then you're fine with spending in order to combat them.

Chad Another question: these constitutional arguments are certainly interesting looking ahead. How would you apply them looking backwards? In other words, if funds were appropriated by Congress and obligated by an agency on behalf of the U. S., wouldn't there be a constitutional due process requirement before it could be, quote, “de-obligated”?

Hanson Well, I could just say in World War II, it was considered sufficient, all that was considered sufficient was that Congress had appropriated the money and the President under his executive responsibilities was going to execute that order by dispersing it. At that time there wasn't really a lot of precedent. Also we should keep in mind that it was always couched in the idea of not just weaponry – and part of that was our traditions of isolation - but also food and capital. So one of the ways Lend- Lease was sold was first of all, that as Roosevelt said we give a hose to our neighbor when there's a fire, and then when he puts it out, he returns it. It was it all predicated on the idea that it was going to be some kind of loan. Most of it wasn't paid back; some of it was. But more importantly, it was considered holistic that that this food or ponchos or c-rations… all were going to be part of a military economic package in our own interest. So if there was another country that wasn't say, a neutral, like Switzerland, needed help, that wasn't considered likely. Even when Herbert Hoover and Wilson started this, the idea was we were helping the White Russians of Russia during Russian famine relief or Belgium that had had its neutrality violated. But generally there were parameters in which this aid could function within, and it was mostly for military interest of the United States and to the degree they were humanitarian, they dovetailed with that. But it was left to the discretion of the President to delegate the people who were going to implement it. In the case of Roosevelt, I don't think we've ever had a powerful foreign service person with more money in real adjusted dollars at his disposal than Harry Hopkins. He was making multi-billion-dollar decisions on his own and we know post facto that he had been inordinately sympathetic to Sovietism and Stalin.

Ramsey I might take a shot at that question. Although this is not my area of expertise, I take the question to be asking, to what extent can the President or the President's assistants take back grants that have already been made of foreign assistance? That is, that have already been authorized, but the money hasn't actually been dispersed yet. And this is not my area of expertise, so I'm being very cautious here, but my impression is that this is not something that is understood to be implicated by the due process clause, but rather it's something that is understood to be implicated by contracting agreements with the federal government. Again, I'm not an expert in government contracting, but my impression is that if there is indeed a contract that is breached, then there's a potential remedy against the government through the Court of Claims. But it's not clear that this would be something that would amount to a constitutional violation. But again, I say that very tentatively and more in the sense of this would be something to look into rather than to anyone relying on what I actually think.

Hanson I just add that both sides have accused the other of not spending in congressionally improved funds than impounding it. And as I mentioned earlier, I didn't suggest that the entire impeachment was based on the Biden family, but one of the elements of the first impeachment was that he suspended or delayed, although he didn't cancel the Javelin money to Ukraine, and that the Congress had ordered him and alloted that money. Then the second corollary of that was he did it for political reasons. It was very ironic because Joe Biden suspended the same type of military aid - and you could make an argument it was just as crucial at that particular time - to Israel. And then the Republicans mirror-imaging the first impeachment said and he did it for political reasons, particularly to win the Electoral College vote in the upcoming election in Michigan because of the large pro-Palestinian vote. And then, of course, it was used in the domestic realm as well. I think there were six or seven state attorney generals that sued Joe Biden to finish the wall, and the money had already been appropriated by Congress, and he just simply de facto said, 'I'm not going to do it.' His exact words were, 'Not one more foot'. And I don't know if that's ever been adjudicated. And that argument is now of course being used against the Trump administration that they have authorized this US aid and yet the President refuses to spend the money. But I don't think there's any precedent. I think each administration does what it can.

Ramsey There is a Supreme Court case that can be read to say that the President has to spend, but it can also be distinguished. I think that it does remain an open question. Just for clarity, I would distinguish between two situations. One is where Congress has made a specific appropriation for a specific kind of funding to a specific project. As long as that is constitutional, there the President may be under an obligation to do that. Then I think there's a separate situation where Congress has made a more general appropriation to aid for developing countries or something like that. There I think the President has quite a bit more discretion, and rightfully so given the President's authority over foreign affairs. And then the question would be, which I think was, again, the premise of the question was, did the aid recipients have any individual right to receive that if it's already been designated? And that, I think, is a separate question and also a hard one.

Destro You're absolutely correct that part of this is contract law. So you have to look at what the actual grants or contracts say. But the other piece involves Congress. Something that I didn't really realize until I got into the State Department, or more accurately until I was getting prepped for my Senate confirmation hearings. I would State Department staffers sitting across the table as staff members of DRL, and then I would go up to the Senate; and see the same staff members now being congressional interns.

What you have is what I have called, and others have called, an NGO industrial complex. You have a revolving door between the Hill, the State Department, and the NGOs, and the AID community writ large. You also have the problem, when you're talking about earmark money, about legislating on appropriations bills. Because the way to avoid oversight… the reason that the foreign affairs had such a hard time tracking down some specific grants was because a lot of times they will go directly to the appropriations committee and get the quote “earmark” at that point. My view is that even earmarks are problematic if they're trying to constrict the President and the secretary's ability to conduct foreign policy that's what the Ukraine fight was all about.

Chad Great, well depending on answers we might have time for perhaps just one more question before I kick it back over to the director. Let me ask a question from Chris Fish, who says thanks for the discussion. How do we best establish and work toward long-term 5 to 20 years or more strategic country objectives foreign assistance/policy that extend beyond a four-year Presidential term? Is Congress allowed to do this constitutionally, assuming they can agree and pass the relevant legislation? And is it in our national interest to do so?

Hanson Let me start with one. I don't think it's in our long-term interest to commit for more than one administration. Given the volatility of allies and enemies and neutrals and changing regimes and public opinion here in the United States. I think that's sort of got us in trouble to the extent that we've given multi-year or multi-generational assumptions that we're going to provide aid. I think it has to be contingent or reviewed periodically, very periodically.

Destro I would agree. The more transparency we have, the better. The problem, as I see it, is that Congress doesn't make foreign policy, it funds it. We need some integrated strategy, to be sure, by country, by region. But, you know, the State Department and other foreign assistance providing institutions are very siloed today. And so, you know, one of the things that has brought this to the fore has been the DOGE experiments. And the courts, as you can see, are pretty hostile to the President even getting access to the spending data. So that's a problem in and of itself. So my reaction is it would have been difficult for me to just go over into Near Eastern Affairs and say “hey, give me a list of all the foreign assistance you're doing in the Middle East.” I mean, they would have told me to get lost, you know? There are silos in the government. I think yes, strategy is needed but people need to talk to each other, and there needs to be a final word, and that belongs to the Secretary and the President.

Chad Well, I think we actually do have time for one more question then. So this is from Eric Polofsky, who says, how would the participants view the interagency process often chaired by the NSC for organizing, coordinating, and directing foreign assistance as it relates to and provides support for U. S. foreign policy and national security policy? So a question about interagency process and views about that in a foreign aid context.

Hanson Well, just to take one example, I'm not sure that it helped the effort in Afghanistan, or at least it wasn't coordinated. On one hand we were spending, I don't know, $200 or $300 billion re-outfitting Bagram. We had a new $1 billion, almost $1 billion embassy project. We had, I think, an $80 million gender studies program at the University of Kabul in a traditional Islamic society. You had all of these cultural USAID [efforts] that were promoting or echoing or reverberating issues that were important in the United States. Even if they were felt legitimately to be important as a sign of liberal progress abroad, they were antithetical to some of the military objectives in the short term, and there was no coordination, it seems to me. I don't think we want to go into traditional societies and try to advance certain particular cultural values. And I mean, there's obviously a logic to it if there's inhumanity and oppression and prejudice and bias in a universal sense. But when you go into these traditional societies and you have USAID or other efforts that are trying to promote issues of concern in a postmodern American society, why? The military has a different objective and that they're often antithetical to each other. We’re not British imperialists. If you're going to go into India and you get rid of sati, you've got the British army and they will do that. But that's a different age. When you go into Afghanistan and you want to change the attitude toward women that's a noble pursuit but you've got to make sure that you're not losing some support or you're not working against the military efforts.

Ramsey I just say real quickly, I don’t think there’s a constitutional issue here. Whether or not you have interagency coordination, it seems to me that the background constitutional point is that the President is the ultimate head of the executive branch and should have full control and full understanding of what’s going on. Just as an outsider who doesn’t really know how government works, it does seem to me that interagency cooperation would promote a single, unified approach in contrast to what you’re saying was going on in Afghanistan, for example. So maybe it wasn’t being done right, but it seems like interagency is probably better than each agency just doing its own thing and encourages the President to be exercising the full control that the Constitution gives.

Destro And I can also add from an operational perspective, there's long been a discussion about what the role of the NSC actually is. Does it make policy? Does it coordinate policy? What does it do? And none other than Samantha Power, who just stepped down as administrator of USAID, complained bitterly about the interagency process because that was why she couldn't get any traction on the genocide in Darfur. So, the interagency process is pretty badly broken in my view. During the Obama and Biden administrations, the NSC was where the policy was made. My view during Trump 45 was that the policy was supposed to be made at State and coordinated by the NSC, but I can't tell you how often I got yanked over to the NSC and complain that because other people weren't doing what they were supposed to do. So, the reality is that there's not as much communication as there needs to be.

Closing remarks completely uninteresting from Pete Marocco…