Foreign Assistance is Unconstitutional...

... According to the Trump State Department. (Part 1)

On April 8, the State Department invited 3 right-wing scholars to argue that foreign assistance was unconstitutional, except in very limited cases, and then only when it was directly controlled and authorized by the President, with no role for Congress. This transcript is lightly edited, with introductory remarks and some rambling commentary deleted for length. Continued in a second post.

Panelists:

Victor Davis Hanson

Robert Destro

Michael Ramsey

Chad Squitieri (Moderator)

Hanson The history of foreign aid is pretty late; about the first 150 years, there was occasional grants for nations in distress. But generally, it wasn't really thought much about. We were isolationists. We were not that wealthy. It really took off under Herbert Hoover, Woodrow Wilson, FDR, and JFK. The idea was that there was no constitutional prohibition. Article 1, Section 8 said general welfare, common defense, and that could be interpreted as it was in the United States’ strategic interest to give arms or capital or foreign aid to different countries. But it was always associated in times of or because of war… Then with Lend-Lease under Roosevelt in 1941, that was a reboot of the Wilsonian doctrine. And then that was expanded after the war when the Truman administration surveyed every geographical landscape. And they said, you know, China's down, doesn't really exist as an industrial power. Russia's been devastated. Europe has been devastated. Asia's been devastated. We came out of the war wealthier than any other country with kind of a monopoly on exports…. But the great break then came when past ad hoc came into the Foreign Assistance Act that created USAID in 1961. Again, it was directed at re-arming and rebooting the and strengthening the economy of Europe and Asia in face of the new cold war, especially the threat of communist Russia and to a lesser extent communist China. At that point aid radically increased. And it was no longer - as had been true with the bulk of the aid that was given to Britain and France in World War I - military aid…. At this point, it was a combination of military and food, but it was still directed for the most part at countries we felt were either allies or potential allies or could be turned in Cold War terms.

After 1975, we never had a trade surplus and our trade policy was part of our aid to allow these countries that we felt were allies of ours or were at a disadvantage or even people who were nations where they were in a strong position but we wanted them to have close ties with the United States, and so we ran we've run consecutive trade deficits. And then in the 70s, but especially 80s, 90s, USAID became more of an autonomous organism, and it started to have a social, cultural element to it in which it was providing much larger amounts. And we were getting into $10-20 billions for cultural, artistic, literary, the whole gamut of the human experience. And it was increasingly divorced from military aid or economic aid in pursuit of military. No one really worried about it de facto. De jure people said, well, there's no explicit right for Congress to appropriate aid and anything that's not explicitly delineated the Constitution, then that power reverts to the state. But there was never really serious opposition on constitutional grounds.

The final thing is, did Presidents who objected to this or felt that it was in their domain, did they have to spend congressionally appropriated aid? It doesn't seem that that issue has been resolved. One element of the first impeachment of Donald Trump was that he suspended congressionally approved aid to Ukraine. But it was never really decided whether that was the key reason he was impeached or whether it was because he targeted the Biden family….

Destro Let me start with my perspective. I'm going to use a term that I learned when I joined the State Department in 2019, and that is, “bottom line up front” - BLUF. And that is that today, neither the President or the Secretary, nor any other officer of the United States, including ambassadors, have full and transparent access to information about U. S. foreign assistance programs. Without that information, we don't have any idea what our foreign policy is, much less how it's being implemented. Unless and until that information is fully transparent to the President, the Secretary, and all other officers of the United States, including ambassadors, who are authorized to see it, any such foreign assistance, including that provided by organizations like the CIA and the Federal Reserve, is in my view unconstitutional as applied.

Both the President and the Secretary have full constitutional and statutory authority to administer foreign assistance programs in a way that reflects the President's priorities. This puts the President in Category 1 of the late Justice Robert Jackson's famous Youngstown Steel and Tool v. Sawyer analysis. He's not only got the constitutional authority, but the statutory authority to back it up. Other constitutional issues, including First Amendment concerns, whether they arise when the United States government funds newspapers and attempts, as it is in Ukraine and other places, to suppress specific religious traditions, or to advance atheism or other policies that would offend the First Amendment, or the statutory restrictions on the use of federal money are as-applied problems. Wholly apart from that, there are significant foreign policy concerns. So, my approach is from my perspective as having been a Senate-confirmed Assistant Secretary of State. As such, the statute that created my position, 22 USC. Section 2651A, gave me the authority and responsibility to maintain, and I'm quoting, “continuous observation and review of all matters pertaining to human rights and humanitarian affairs”.

Now, as an Assistant Secretary, I'm not independent. I work for the President and the Secretary and have a solemn duty - written into the statute - to advise the President, the Secretary, and Congress through the annual human rights reports about the nature, purpose, and implementation of the President's human rights and humanitarian policy. I had a staff of about 140 civil servants and foreign service officers and an operations budget of about $40 million and a foreign assistance budget of around $1.5 billion, which in State Department terms is pretty small.

Since our focus today is constitutional law specifically the foreign affairs powers of the President and the spending powers of Congress, I should also mention two additional statutory points of reference: Article 1, Section 9, Section 7, Clause 9 of the Constitution, which requires a regular accounting of all monies drawn from the Treasury; and Sections 617 and 622 of the Foreign Assistance Act of 1961, which put the President and the Secretary firmly in charge of the formulation and administration of all foreign assistance programs, including those administered by State, USAID, HHS, Labor, Energy, NASA, and the many other foreign assistance programs, including Millennium Challenge, the United States Institute of Peace and PEPFAR, among others.

Now, that's the theory. Now let me talk to you for a few minutes about how it works in practice, as applied parts. From a diplomatic perspective, foreign assistance is one of the many economic tools that we use to effectuate foreign policy. In fact, it's the other side of the coin from sanctions. Rather than deny access to our markets in the international financial system, we pay for results. The inconvenient truth, however, is that neither the Congress, the President, nor any cabinet or sub-cabinet appointee has any idea of what our foreign policy actually is as a whole or as applied in specific countries. We don't know who's actually developing the policy, whether it's the NGOs or the staff to whom we have entrusted the implementation, not only big Beltway companies like Booz Allen, Deloitte, and Chemonics, but also national, international, and local NGOs. We don't know how the foreign assistance and policy work together to form a coherent whole that's comprehensible to the President and, very importantly, to the countries who must deal with us on a day-to-day basis. The truth is that we have contracted out our foreign policy, and that the political appointees charged with oversight do not and cannot maintain continuous oversight.

My program staff fought me tooth-and-nail to avoid transparency, not simply to know what the programs were, but also to share that information with my policy staff. As a result, I had to authorize the creation or what we call the DRL dashboard - based on the Secretary's dashboard - to get that transparency. That dashboard is now operational, but it does not appear to be complete. As soon as I left in 2021, the staff put it on the shelf. The House Foreign Affairs Committee also had to fight to get access to the information. Nor can the ambassadors who have been told by OMB and State that they cannot get what one ambassador told me is an “all-spigots” memo. This ambassador had to threaten to revoke the credentials of posted officials because they refused to disclose the funds they were administering in that country.

So, In a word. I applaud DOGE’s effort. The President and the Secretary are entitled to transparency of all data relating to the execution of foreign policy. Unless data is classified, and most foreign assistance is not, there's no excuse for hiding the information from a political appointee at whatever level, from the Secretary to a policy expert.

And last point, don't be distracted by allegations of fraud, waste, and abuse. These are, in my judgment, eye candy. The real issue, from a diplomatic perspective, is return-on-investment. Are we getting what we paid for? Does the policy work? I will call here to OMB to implement the 2018 Foundations of Evidence-Based Policy Act and to demand complete transparency and data sharing within the government. Only then can we get a handle. That, ladies and gentlemen, is the constitutional issue. The answer is that unless the President controls our foreign assistance programs - all of them - they're unconstitutional, no matter what good they do on the ground.

Ramsey I want to offer a constitutional perspective, touching on three main points: first starting with the text, and second its relationship to foreign assistance, and third the question of who are the decision makers in this constitutional area.

I'm an originalist textualist, so I'll start with the text. Congress' power probably comes or at least is touched upon by Article One, Section eight, Clause 1, which says, “Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States.” The question is how to read that clause. There's a related clause which says that all money withdrawn from the Treasury must be authorized by appropriations made by law. So Congress is ultimately the source of spending authority. And that clause that you just read describes, to some extent at least, Congress's power. The question is how to read that.

There's three main positions on this. One is - which was expressed by basically nobody at the founding - that Congress's spending power is unlimited, and it's entirely discretionary to Congress. A second view, which was expressed by James Madison in the early post-ratification period, was that Congress's spending power arises from his other enumerated powers, so in order to spend money, Congress has to point to something elsewhere, either in Article I, Section 8, or elsewhere in the Constitution. So, for example, Congress could spend money to promote foreign trade because Congress has power over commerce with foreign nations, but it can't go beyond that. Then there's an intervening position that was expressed by Alexander Hamilton in the early post-ratification period, which says that the power that's expressed in Article I, Section 8, Clause 1, does indeed go beyond Congress's other enumerated powers by the reference to the common defense and general welfare of the United States. But that that power is not unlimited, and indeed, any spending that Congress authorizes must particularly be tied to common defense or general welfare.

I'm a bit of a Hamiltonian, so it's not really a surprise that I associate myself with the Hamilton position. But it must be said that the Madison position was expressed strongly in the founding era, and there are many originalists who take the view that Madison, in the much more restrictive view, had it right. Now, second, what does this mean for foreign affairs or foreign assistance? Under the unlimited view, obviously, it's unlimited, and Congress can do whatever foreign assistance it wants to, and there simply isn't any constitutional issue involved. Under the Madisonian view, I think that the current regime of foreign assistance would go quite far beyond what a Madisonian constitutionalist would envision. Congress can give some foreign assistance, I think again, in connection with international trade, for example, or in connection with Congress's power to raise and support armies. Surely Congress could pay for military bases overseas, for example.

But many of the less connected aspects of foreign assistance - by which I mean less connected to Congress's enumerated power - I think would be subject to a very significant constitutional doubts. The third position - the intermediate position of Hamilton's - I think would allow considerably more foreign assistance, but again it would not be unlimited because any foreign assistance under this view would have to be tied back to the common defense or the general welfare of the United States, so it would not be part of foreign assistance to simply aid foreign countries with no connection to U. S. foreign policy and U. S. strategic interests. But I do think the Hamiltonian vision allows, for example, to give foreign assistance to support allies, even if you're not connected directly to raising and supporting our armies or increasing our international trade. So in that respect, I think it goes somewhat beyond what the Madisonian position would allow.

Then my final point is about who's going to make this constitutional decision. Now, I'm assuming here that the unlimited view of Congress's power is not the correct one, and that we're operating either under a Madisonian or a Hamiltonian view of Congress's spending power. So in that situation, who's the decision maker? Well, one answer might be the courts. This was a position taken by the Supreme Court initially in the United States v. Butler, which is an early New Deal case addressing the spending power. There the court saw itself as the arbiter of the question whether a spending program was constitutional or not. Indeed, in that case, it invalidated a congressional spending bill. I believe that was the last time that any court has ever invalidated a congressional spending authority. But nonetheless if you're a strong judicial supremacist, you do see that the court this is just a constitutional question and the court is the one to answer it. However more recently the court has not taken that view rather the court has taken the view that this is substantially a decision for Congress. Fairly shortly after the Butler case in Haldane v. Davis, which is a late New Deal case upholding the Social Security Administration, the court said that this is not an appropriate rule for courts. It is something that Congress decides as to what spending is appropriate under the Constitution. And that position has been carried into the modern times, perhaps with a little bit of a cutback, but not much, in the South Dakota Restore case in the Rehnquist Court. There the Chief Justice said that courts would, quote, “substantially defer” to Congress on the question of whether spending was within the general welfare power. I think where the modern law stands as between the courts and the Congress is that restrictions on spending power are not materially enforceable in court.

But I think this account leaves out an important branch of government, which is the President. Particularly when we're talking about foreign affairs and foreign assistance, where the President has special constitutional power. Even outside that, I think that the President has an independent obligation to assure that things that the United States does, whether spending or otherwise, are constitutional. The President has the power and duty to take care that the laws are faithfully executed, and the laws in that clause include the Constitution. So, in my view anyway, the President has an independent power to assure, and an independent duty to assure, that spending conforms with the President's vision, whatever that may be, of the applicable constitutional rules.

So if the President is Hamiltonian, as I am, and thinks that the right standard is whether spending enhances the common defense or general welfare of the United States, then I think the President has the obligation to assure that spending - and especially including foreign affairs spending and foreign assistance - does comply with that constitutional obligation. And I think, again, this is especially true in foreign affairs because, in my view anyway, and again, this is a Hamiltonian view, the President, by virtue of the executive power in Article II, Section 1, has particular power in foreign affairs. And if you want to hear more about that, I have a whole book about it. But in any event, I think I'll stop there and happy to entertain questions on this constitutional structure.

Chad We'll transition now at the back half of our allotted time to questions and answers…. 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.. he just dispatched Harry Hopkins… to ask Stalin what he wanted. And he… 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 “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

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