The following is a summary of the 10th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.
On Dec. 18, 2020, the Congressional Study Group on Foreign Relations and National Security met to discuss the growing convergence of economic and national security policy. Once thought of as separate domains, legal authorities associated with economic policy have often been used to advance national security objectives in recent years–and sometimes vice versa. Should the two areas of law and policy be treated separately? Or as a cohesive whole?
This topic was proposed and developed by two study group members, Martin Weiss and Kathleen McInnis of the Congressional Research Service. They were joined by Professor Harlan Cohen of the University of Georgia School of Law; Professor Ben Heath of Temple University Beasley School of Law; and Professor Rebecca Ingber of Cardozo School of Law.
Prior to the session, the participants recommended several pieces as background reading to the study group, including:
- Kathleen J. McInnis and Martin A. Weiss, Strategic Competition and Foreign Policy: What is “Political Warfare”?, CRS In Focus (March 8, 2019), https://crsreports.congress.gov/product/pdf/IF/IF11127;
- Harlan G. Cohen, Nations and Markets, Journal of International Economic Law (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689814;
- Benton Heath, Trade and Security Among the Ruins, Duke Journal of Comparative and International Law (2020), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1561&context=djcil;
- Rebecca Ingber, Congressional Administration of Foreign Affairs, Virginia Law Review (2020), https://virginialawreview.org/sites/virginialawreview.org/files/Ingber_Book.pdf.
Weiss and McGinnis opened the discussion, arguing that we must begin considering national security and economic issues using an integrated, whole-of-government approach. For years, government agencies called for inter-agency guidance, but this seldom materialized. The economics and national security spaces are thus like ships in the night; there is rarely the real collaboration that is required in this era of strategic competition.
Cohen provided the first response among the outside experts. He noted that the U.S. government is not alone in its concern about the blurring line between economics and national security. Everywhere, economic issues are bleeding into national security ones—and vice versa—and these trends are trans-substantive. However, the blurring of these lines poses a challenge to how the U.S. government in particular governs and regulates. Our general model, internationally and domestically, has been to divide these issues. Which bucket—economics or national security—an issue falls into affects which arguments are made and which tools are used to address the problem. Thus, when national security-related problems are put into the economics bucket, national security is dealt with as an exception. There are a few problems with this. For one, there is no principle to say why one thing is in one category. Any consensus we had was just an armistice line between these different logics. Second, when we govern through exceptions—as we do when national security issues are placed within the economics line—we risk corruption and lobbying. The resulting ad hoc approach also makes for incoherent policy; we are making data policy one dance app at a time.
Heath followed. He pointed out that as national security and economic concerns converge, we see a movement towards rationalization in national security, meaning the inclination to treat similar cases alike and not rely on ad hoc policy judgment to reach outcomes. Even if Congress and the Executive Branch do not see a need for rationalization, courts are beginning to demand it as they engage in the judicial review of national security-related authorities in the economic space. We first saw this in litigation relating to FTO designations and it’s now being applied to CFIUS and IEEPA in the TikTok and related cases. Similar trends may also emerge in international adjudication. Whether this is desirable or not, it appears to be a consequence of the intersection of economics and national security.
Ingber closed the scholars’ discussion. She discussed how Congress can shape and influence national security policy through the management and administration of the multi-faceted executive bureaucracy. As some examples, Congress can legislatively impose reporting requirements, certification requirements, coordination and collaboration requirements, and the sign-off of particular actors. These are relatively easy moves for Congress to make, but they can have significant policy impacts. The imposition of these processes also has the added benefit of giving courts a hook by which to intervene in hot-button national security debates.
The meeting closed with an open discussion that touched on a number of related issues, including food insecurity, the appropriate role of the Department of Defense relative to the State Department, the problems of congressional appropriations and uneven resources, and what individual members of Congress should look out for when seeking to affect policy at the intersection of economics and national security.
Visit the Congressional Study Group on Foreign Relations and National Security landing page to access notes and information on other sessions.
