CFIUS as a Congressional Notification Service – Article by David Zaring

From Volume 83, Number 1 (November 2009)

How can Congress play a role in formulating national security policy? This Article identifies one way that Congress already plays such a role: in its oversight of executive branch decisions regarding foreign investments in the United States. The executive’s role in this relationship is passive; it is best understood as a congressional notification service. This Article considers the implications of such a service, which could serve as a model for increased congressional involvement in other aspects of foreign affairs. It offers historical support for the descriptive claim that Congress plays a central role in policing foreign investments for national security concerns; the mildness of the executive role is shown both qualitatively and quantitatively through a content analysis of the “boilerplateness” of executive approvals of foreign acquisitions. The role Congress has played in national security and foreign direct investment policymaking has implications for theories of presidential administration and executive discretion in foreign affairs, and also for practicing lawyers interested in defining what exactly the scope of “national security” might be. The Article concludes with a review of these implications.



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