On December 18, 2020, the Congressional Study Group on Foreign Relations and National Security met to discuss the growing convergence of economic and national security policies. Once considered separate domains, legal authorities associated with economic policy have often been used in recent years to advance national security objectives, and sometimes vice versa. Should the two areas of law and politics be treated separately? Or as a coherent whole?
This topic was proposed and developed by two members of the study group, Martin Weiss and Kathleen McInnis of the Congressional Research Service. They were joined by Professor Harlan Cohen of the University of Georgia Law School; Professor Ben Heath of Temple University Beasley School of Law; and Professor Rebecca Ingber of the Cardozo School of Law.
Prior to the session, participants recommended several pieces as core 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 (8 March 2019), https://crsreports.congress.gov/product/pdf/IF/IF11127;
- Harlan G. Cohen, Nations and MarketsJournal of International Economic Law (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689814;
- Benton Heath, Trade and security among the ruinsDuke Journal of Comparative and International Law (2020), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1561&context=djcil;
- Rebecca Ingber, Foreign Affairs Congress AdministrationVirginia Law Review (2020), https://virginialawreview.org/sites/virginialawreview.org/files/Ingber_Book.pdf.
Weiss and McGinnis opened the discussion, saying we need to start looking at national security and economic issues using an integrated, whole-of-government approach. For years, government agencies have called for inter-agency advice, but this has rarely materialized. The spaces of economy and national security are thus like ships in the night; there is rarely the true collaboration required in this age of strategic competition.
Cohen provided the first answer among outside experts. He noted that the US government is not alone in worrying about the blurred line between the economy and national security. Everywhere, economic problems are turning into national security problems – and vice versa – and these trends are transsubstantial. However, the blurring of these lines poses a challenge to how the US government in particular governs and regulates. Our general model, internationally and nationally, has been to divide these issues. Which bucket – economic or national security – a problem falls into affects what arguments are made and what tools are used to solve the problem. Thus, when national security issues are placed in the basket of economics, national security is treated as an exception. There are a few issues with this. On the one hand, there is no principle to say why a thing is in a 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 economics—we risk corruption and lobbying. The resulting ad hoc approach also makes policy inconsistent; we are building a data policy one dance app at a time.
Heath followed. He pointed out that as national security and economic concerns converge, we are seeing a move towards the rationalization of national security, which means the tendency to treat similar cases the same way and not rely on a ad hoc political judgment to achieve results. Even though Congress and the executive branch see no need for streamlining, the courts are beginning to demand it as they engage in judicial oversight of national security-related authorities in the economic space. We first saw it in the FTO designation disputes and it is now being applied to CFIUS and IEEPA in TikTok and related cases. Similar trends may also emerge in international judicial decisions. Whether this is desirable or not, it seems to be a consequence of the intersection of economics and national security.
Ingber closed the academics’ discussion. She explained how Congress can shape and influence national security policy through the management and administration of the multifaceted executive bureaucracy. For example, Congress can legislate reporting requirements, certification requirements, coordination and collaboration requirements, and approval of particular actors. These are relatively easy steps for Congress to take, but they can have significant political impacts. Imposing these processes also has the added benefit of giving the courts a means to intervene in hot national security debates.
The meeting concluded with an open discussion that touched on a number of related issues, including food insecurity, the appropriate role of the Department of Defense versus the Department of State, issues of Congressional appropriations and unequal resources, and what individual members of Congress should look out for when seeking to influence policy at the intersection of economics and national security.
Visit the Congressional Study Group on Foreign Relations and National Security home page to access notes and information on other sessions.