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Foreign Aid Legislation Time for a New Look Michael H Cornell Law Review Volume 38 Article 2 Issue 2 Winter 1953 Foreign Aid Legislation Time for a New Look Michael H. Cardozo Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Michael H. Cardozo, Foreign Aid Legislation Time for a New Look , 38 Cornell L. Rev. 161 (1953) Available at: http://scholarship.law.cornell.edu/clr/vol38/iss2/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. FOREIGN AID LEGISLATION: TIME FOR A NEW LOOK Michael H. Cardozo* The misnomer "foreign aid" is what we call those measures whereby the United States helps itself by helping others.1 Their constitutional sanction is the same as for social security and arms for our military forces, namely, the power to spend funds of the Treasury to "provide for the common defense and general welfare of the United States."2 The statutory prototype is the wartime Lend-Lease Act,3 appropriately described in the heading as "An act to promote the defense of the United States." In every year since the end of World War II Congress has responded to the needs of a disrupted world with at least one new "foreign aid" act. Each one has authorized the use of funds of the U. S. Treasury to pay for goods and services needed by specified friends and allies around the globe who could not pay in foreign exchange. Each new law stemmed from a specific problem in our foreign relations. All were based on the same premise that strong and healthy friends are our best assurance of success in meeting threats to peace and making the United Nations work as an effective instrument of world collabora- tion.r Still, no regular pattern of statutory form or administrative direc- * Associate Professor of Law, Cornell University. See Contributors' Section, Mast- head, p. 213, for biographical data. The views expressed herein are those of the writer and are in no way intended to indicate the views of any Government agency. 1 Cf. 3d Report to Congress on the Mutual Security Program, xiii (1952). 2 U.S. CONST. ART. I, § 8; Helvering v. Davis, 301 U.S. 619, 640 (1937). 3 55 STAT. 31 (1941), as amended, 22 U.S.C. §§ 411-423 (1946). 4 1946: Continuation of certain lend-lease funds, Third Deficiency Appropriation Act, 1946, 60 STAT. 604 (1946). 1947: Greek-Turkish Aid Act, 61 STAT. 103 (1947), as amended, 22 U.S.C. 1401 (Supp. 1951); Relief Assistance Act, 61 STAT. 125 (1947), 22 U.S.C. § 1411 (Supp. 1951); Foreign Aid Act of 1947, 61 STAT. 934 (1947), 22 U.S.C. § 1411 note (Supp. 1951). 1948: Foreign Assistance Act of 1948, 62 STAT. 137 (1948), as amended, 22 U.S.C. 1501 (Supp. 1951). 1949: Mutual Defense Assistance Act of 1949, 63 STAT. 714 (1949), as amended, 22 U.S.C. §§ 1571 (Supp. 1951), hereinafter referred to in footnotes as "MDAA". 1950: Yugoslav Emergency Relief Assistance Act of 1950, 64 STAT. 1122 (1950), U.S.C. § 1558 (Supp. 1951) ; Act for International Development, 64 STAT. 204 (1950), as amended, 22 U.S.C. 1557 (Supp. 1951). 1951: India Emergency Food Aid Act of 1951, 65 STAT. 69 (1951), 50 U.S.C. App. § 2311 (Supp. 1952); Mutual Security Act of 1951, 65 STAT. 373 (1951), as amended, 22 U.S.C. 1651 (Supp. 1951), hereinafter referred to in footnotes as "MSAam". 1952: Mutual Security Act of 1952, Pub. L. 400, 82d Cong., 66 STAT. 141 (1952), herein- after referred to in footnotes as "MSA52". 5 See Report of U.S. Senate Committee on Foreign Relations, SEN. REP. No. 1490, 82d Cong., 2d Sess. 12-17 (1952); speech of President Truman before the National War 161 CORNELL LAW QUARTERLY Vol. 38 tion has been followed. The result is that today the various laws on the subject form a legislative labyrinth sure to confound anyone who seeks to know the law of foreign aid. The present maze of interlocked restrictions and directions, leaving a minimum of discretion to the executive branch, has its roots in a prolonged period of mistrust of the executive by Congress. Psychiatrists tell us that the child of suspicious and quarrelling parents is destined to be confused and indecisive in maturity. We should not be surprised, then, if a series of laws originally "begotten by a Democratic Administra- tion, born out of a Republican-controlled Congress" 6 are also confusing and may lead to indecision in administration. Students of our govern- mental processes are calling for a return of the relationship between president and Congress to its traditional balance.' Walter Lippmann says that Congress has so "trespassed upon the prerogatives of the Ex- ecutive" that now it is "important to restore to the presidency the pre- rogatives which it has lost."' The coming of a new regime in Washington can be the signal for this restoration. With such a change there is a good chance to bring order out of the chaos of foreign aid legislation with a single new law that would reflect confidence by the legislators in the administration and would smooth the way to clarity and order in the statutory basis of one of the "central parts of our foreign policy structure."9 Such a law is needed, for until that happy day when trade replaces aid, we may expect that our economy and our arsenals will continue to be called on to bolster the security of the free world by counterweights to the imbalance of payments and by shipments abroad of the sinews of war. Even after the general programs of aid to whole areas and groups of countries are terminated, we must be ready for regular recurrences of the crises in individual countries that will call on our resources to cushion the effects of natural calamities and to prevent political disasters such as another envelopment by the iron curtain. Technical assistance is likely to continue as long as there are under-developed parts of the free world where our know-how can help to sow the seeds of peace and good will for the future. College, Dec. 19, 1952, 28 DEP'T STATE BuLL. 43, 44; First Semi-Annual Report to Congress on the Mutual Defense Assistance Program 15 (1950). 6 Surrey, The Economic Cooperation Act of 1948, 36 CAnT. L. RPv. 509 (1948). 7 Cf. Remarks of Speaker Joseph W. Martin, Jan. 3, 1953, 99 CONG. REC. 12-13 (1953). 8 Syndicated article, N.Y. Herald-Tribune and other newspapers, January 15, 1953 (N.Y. Herald Tribune, Jan. 15, 1953, p. 21, col. 1). 9 Tnam REPORT TO CONGRESS ON THE MUTuAL SFcuRrT PROGRAM, p. x (1952). 19531 FOREIGN AID LEGISLATION THE MUTUAL SECU iTY ACT The Mutual Security Act of 195 1,1' as amended in 1952, " has become the keystone of the foreign aid authorizations now on the books. The Lend-Lease Act, though not repealed, can no longer be used. 2 The United Nations Relief and Rehabilitation Administration (UNRRA) is dissolved.' 3 Similarly, the Post-UNRRA Relief Assistance Act'4 and the Interim Aid Act of 19471 are obsolete; both served to bridge a temporary gap. The earliest act still operative is the Greek-Turkish Aid Act of May 22, 1947.16 It is one of the components of the structure blanketed by the Mutual Security Act, which is essentially an authoriza- tion of additional appropriations to carry out the underlying laws. Through this technique of cross references the administration and Con- gress avoided the squabbles that a review of all the existing provisions would have produced. This is how it looks in a typical section of the Act: Sec. 302. (a) In order to further the purpose of this Act through the strengthening of the area covered in section 301 of this Act [i.e., "the general area of China (including the Republic of the Philippines and the Republic of Korea)"] (but not including the Republic of Korea), there are hereby authorized to be appropriated to the President, for the fiscal year 1952, not to exceed $237,500,000 for economic and technical assistance in those portions of such area which the President deems to be not under Communist control. Funds appropriated pursuant to authority of this section shall be available under the applicable provisions of Section 503 of this Act [which specifies the provisions of the Economic Cooperation Act that may be used after June 30, 1952 for economic aid and programs supporting the defense effort abroad] and the applicable provisions of the Act for International Development. In addition, unexpended balances of funds heretofore made available for carrying out the purposes of the China Area Aid Act of 1950, are hereby authorized to be continued available through June 30, 1952, and to be consolidated with the appropria- tion authorized by this section.... Not the least confusing feature of this excerpt is that it applies only to the fiscal year 1952 and hence is now obsolete. The Mutual Se- curity Act, contains, in addition, many new regulations and condi- tions for providing aid,17 and a new superstructure of administration by a Director for Mutual Security whose function it is to control 10 65 STAT. 373 (1951), 22 U.S.C. 1651 (Supp. 1951). 11 The Mutual Security Act of 1952, 66 STAT. 141 (1952). 12 Section 3, as amended, withdraws the president's powers after June 30, 1946.
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