Frankfurter's Gloss Theory, Separation of Powers, and Foreign Investment

In February and March 2006, members of Congress won a rare victory in foreign relations — they successfully opposed the President. Months earlier, executive officials had approved the acquisition of U.S. seaport management companies by Dubai Ports World, a United Arab Emirates-based corporation. Despite this executive approval, Congress thwarted the transaction by exerting political pressure based on national security concerns. Though some have criticized Congress's actions, the Dubai Ports World controversy was actually a victory for Congress in the debate over separation of powers in foreign relations. In other foreign relations matters, such as international agreements, war, and surveillance, the President has gradually taken on more and more power. Because the Constitution does not comprehensively define the foreign relations powers of the legislature and the executive, the historical relationship between the branches, what Supreme Court Justice Felix Frankfurter called the gloss on executive power, often proves decisive to permanently shift power to the executive.This article analyzes the historical relationship between Congress and the President in foreign investment and seeks to determine whether Congress can preserve its role in the area under current law. By examining the operation of Frankfurter's gloss theory in international agreements, war, and surveillance, this paper establishes a framework of factors that weigh for and against continued congressional participation in foreign relations decisions. This framework is applied to the 2007 amendments to foreign investment legislation to assess the standing of separation of powers and to make policy recommendations