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CHAPTER 6

Congress

Dateline: Yemen Resolution

No shortage of views exists regarding the role that Congress plays in making foreign policy. It is frequently characterized as an obstacle course for presidential foreign policy initiatives to navigate. One dissenting view holds that Congress is not really an obstacle course for presidents.1 They tend to get their way. A second dissent argues that, even if it is a hard obstacle course, congressional participation in foreign policy making is critical to raising public awareness about issues and providing additional information to policy makers.2 Congressional efforts to prohibit U.S. involvement in the Yemen war provide a starting point for analyzing this debate.

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In March 2015, Saudi Arabia, along with eight regional allies, began an air, ground, and naval military operation in Yemen designed to restore the government of Abdu Rabbu Mansour Hadi to power. Hadi had been forced to resign in January by an alliance led by the Iranian-supported Houthi and supporters of Ali Abdullah Saleh (president of Yemen before Hadi). Initially, the Obama administration supported the Saudi alliance’s military effort. It also used drones against al-Qaeda in the Arabian Peninsula (AQAP), which is active in Yemen. As the civilian death toll mounted and the humanitarian crisis deepened, Obama adopted a position that emphasized the need for a UN-facilitated cease fire and a negotiated settlement. In January 2017, it was estimated that some ten thousand civilians had died in the fighting; by June 2018, an estimated eight million of Yemen’s twenty-eight million people were at the risk of starvation.

During his presidential campaign, Donald Trump stressed the need for a more aggressive anti-terrorism policy. Days after assuming office, Trump approved a military operation to gather intelligence on AQAP. The January 28, 2017, raid failed to achieve its objective and resulted in the death of one Navy SEAL, and fourteen to twenty-five civilians killed by U.S. aircraft supporting the ground attack. Since then, the Trump administration has called for greater humanitarian aid, increased its support for the Saudi military, and advanced the sale of guided munitions technologies that was halted by Obama.

In 2015, Congress had limited interest in the Yemen war. Its focus was on the Iranian nuclear agreement and ISIS in Syria. Congress’ voice on Yemen came from a few members and was directed at the growing humanitarian crisis. In September, one member of Congress wrote a letter to the Joint Chiefs of Staff advocating a halt to U.S. support for the Saudi military operation until more civilian safeguards were provided. The following month ten members of Congress wrote to Obama, urging him to work with the Saudis to limit civilian casualties. The first steps toward placing legislative controls on U.S. participation in the Yemen conflict took place in September 2016, when a Senate resolution to block an arms deal was defeated by a 71–27 vote.

In 2017, Trump’s increased support for the Saudi forces, plus a major new offensive, led to renewed congressional action. Letters were sent to Secretary of State Rex Tillerson and President Trump asking them to halt the conflict and provide humanitarian aid. Congress debated yet another resolution disapproving arm sales to Saudi Arabia. A concurrent resolution was introduced, calling for an end to support for Saudi Arabia’s military intervention into Yemen, but House leaders effectively blocked a vote. Instead, a vote was taken on a nonbinding version expressing concern about the conflict without calling for an end to U.S. involvement. It passed by a vote of 366-30.

The congressional debates centered on two themes. From one perspective, the Yemen War was a conflict about regional domination that pitted Saudi Arabia against Iran. Saudi Crown Prince Mohamed bin Salman 135(MBS), the heir apparent to the throne, made this argument when he identified a “triangle of evil” (Iran, Turkey, and Islamist extremists) in the Middle East. He would later be identified by the U.S. intelligence community as a key player in the assassination of Saudi dissident and U.S. citizen Jamal Khashoggi. From a second perspective, supported by Kenneth Pollack, a former senior military analyst at the CIA and National Security Council, the Saudi concern was overstated. He described it as an obsession with Yemen and an inability to stop meddling in Yemen’s internal affairs. In Pollack’s view the Yemen War was driven by local and historical political forces energized by the 2011 Arab Spring.

2018 began with the introduction of a joint resolution to remove U.S. forces from conflicts that have not been authorized by Congress. The motion was tabled on a procedural vote just before MBS arrived in Washington for talks with Trump. At the same time, it was agreed that the Senate Foreign Relations Committee would hold hearings on U.S. policy in Yemen. This led to a requirement, inserted into the Defense Budget, for the president to certify that Saudi Arabia was taking appropriate actions to protect civilians. In signing the bill, Trump issued a statement rejecting that clause on the grounds that it violated his powers as commander in chief. The deadline came and went without any certification being made.

Following the death of Khashoggi in October 2018, Congress became more engaged in the Yemen War. A bipartisan resolution invoking the War Powers Act passed by a vote of 56 to 41. The bill then went to the House, where Speaker of the House Paul Ryan inserted language in a farm bill blocking its consideration.

Matters came to a head in 2019. In February, the now Democratically controlled House passed legislation by a vote of 248–177 that ended U.S. military support for Saudi Arabia. This was the first time in history that the War Powers Resolution was invoked successfully. It was stated that the U.S. military assistance to the Saudi-led coalition was an unauthorized military deployment in a hostility. Opponents argued that this was not the case since U.S. troops were not directly involved in fighting. In March, the Senate passed a different version of the bill, with all forty-seven Democrats and seven Republicans voting to support it. On April 4, the House passed that bill by a vote of 247–175. On April 16, Trump exercised the second veto of his presidency, refusing to sign the resolution. Had he signed it, the United States would have had thirty days to end its military support for the Saudi coalition. This did not end Congressional attempts to end U.S. support for the Saudi bombing campaign; in September 2019, Congress inserted an amendment into the defense authorization bill for that purpose.

This chapter first looks at the constitutional basis of Congress’s power to participate in foreign policy and the methods at its disposal to exercise its voice.3 Next, the impact of Congress’s operating structure and procedure on its participation in foreign policy making is examined. The chapter 136concludes by analyzing Congress’ relationship with the president in making foreign policy changes over time.

Constitutional Powers

The division of power found in the Constitution provides the foundation on which congressional participation in foreign policy rests. It comprises four powers: (1) the power of advice and consent in making treaties, (2) the power to confirm presidential appointments, (3) a set of war powers, and (4) the power to regulate commerce.

Treaty-Making Power

The Constitution states that the president, by and with the advice and consent of the Senate, has the power to make treaties. The president’s role in the treaty-making process generally has not been a source of serious controversy. The president nominates the negotiators, issues instructions to them, submits the treaty to the Senate for its advice and consent, and, if consent is given, decides whether to ratify the treaty and make it a law. Far more controversial have been the nature of Senatorial advice and consent, the topics to be covered by treaties, and the role of the House of Representatives in the treaty-making process.

 

Senatorial Advice and Consent the Senate has given its consent to over 1,500 treaties and has rejected only 22. Fifteen of those rejections occurred between 1789 and 1920. Some, such as the Treaty of Versailles, were rejected twice. One of the most recently approved and controversial treaties was President Obama’s New Strategic Arms Reduction (New START) Treaty in December 2010. It was passed by a vote of 71–26. In order to secure its passage and block crippling amendments, the administration agreed to spend an additional $84 billion over ten years to modernize the U.S. nuclear weapons program. The most recent treaty rejected by the Senate was the International Disability Treaty that was signed by President George W. Bush. It was defeated by a 61–38 vote in December 2012, five short of the 66 votes needed. Supporters argued that it was modeled on the Americans with Disabilities Act. Opponents argued that, by allowing international authorities to dictate the treatment of Americans with disabilities, it undermined U.S. sovereignty and the ability of American citizens to hold policy makers accountable for their actions.4 A list of rejected treaties is

presented in  table 6.1 .

TABLE 6.1 Rejected Treaties
Bilateral	Multilateral
Suspension of Slave Trade/Columbia, 1825	Treaty of Versailles, 1920
Property Rights/Switzerland, 1836	World Court, 1935
Annexation/Texas, 1844	Law of Sea Convention, 1960
Commercial Reciprocity/Germany, 1844	Montreal Aviation Protocol, 1983
Transit and Commercial Rights/Mexico, 1860	Comprehensive Test Ban, 1999
Cuban Claims Commission/Spain, 1860	Convention on the Rights of Persons with Disabilities, 2012
Arbitration of Claims/United Kingdom, 1869
Commercial Reciprocity/Hawaii, 1870
Annexation/Dominican Republic, 1870
Interoceanic Canal/Nicaragua, 1885
Fishing Rights/United Kingdom, 1888
Extradition/United Kingdom, 1889
Arbitration/United Kingdom, 1897
Commercial Rights/Turkey, 1927
St. Lawrence Seaway/Canada, 1934
Source: http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm#4.

Omitted from this count are treaties negotiated by presidents but never voted on by the Senate and those to which the Senate consented only after prolonged delays. A total of eighty-five treaties have been withdrawn from consideration. President Jimmy Carter’s withdrawal of the Strategic Arms Limitation II (SALT II) Treaty from consideration after the Soviet invasion 137of Afghanistan is one example of a major Senate “nonrejection.” Truman negotiated a treaty establishing an International Trade Organization that was to be part of the Bretton Woods system. However, because of certain Senate opposition, Truman never submitted the treaty for advice and consent, and the interim General Agreement on Tariffs and Trade (GATT) became the formal international vehicle for lowering tariffs.

As of January 2019, forty-one treaties had been submitted to the Senate for its advice and consent on which it had not yet voted. A 1949 International Labor Organization Convention supporting labor’s right to organize has still not come up for a vote. A 2013 arms trade treaty establishing international norms regulating the sale of weapons, including small handguns, was considered “dead on arrival” because over fifty senators had made their opposition known even before it was signed. It never came up for a vote, and Trump officially withdrew the United States from the treaty in 2019.

In addition to treaty ratifications and rejections, it is also important to look at Senatorial attempts to change treaties. A treaty needs 67 votes to pass, but Senate amendments to treaties only need a majority. Between 1947 and 2000, the Senate attached reservations to 162 of the 796 treaties that came before it.5 In the heated debate over the Panama Canal Treaties, 145 amendments, 76 reservations, 18 understandings, and 3 declarations 138were proposed. The Senate’s attachment of amendments and reservations to treaties is far from random.6 High politics treaties—those dealing with national security issues and questions of U.S. sovereignty—are far more likely to be saddled with reservations. Economic treaties are also likely to attract reservations.

The motivations behind introduction of treaty amendments are many. Some Senatorial changes are designed to improve a treaty; others are meant to kill it by introducing unacceptable provisions.7 For example, the Senate approved the Intermediate Nuclear Forces Treaty by a vote of 93 to 5 in 1988; it rejected more than a dozen killer amendments, including one that required removal of U.S. troops from Europe after withdrawal of U.S. missiles. Still others seek to protect domestic economic interests, reassert Senatorial powers, or make a policy statement. An example of the latter is the 1997 Chemical Warfare Convention, which directed the Secretary of Defense to increase U.S. military ability to operate in areas contaminated by chemical and biological weapons.

Finally, note that the president and the Senate may continue to clash over the provisions of a treaty long after Senatorial advice and consent has been given. A key issue here is the power to interpret treaty language that could potentially change the meaning of the treaty. A significant presidential-congressional clash over the language of the Antiballistic Missile (ABM) Treaty spanned three presidencies. The centerpiece of the dispute was whether a president could reinterpret the language of a treaty without congressional approval. President Reagan did so when he asserted that his administration could legally test elements of the proposed Strategic Defense Initiative shield. The controversy continued when the Clinton administration approached Russia about modifying the language of the treaty to permit the deployment of mobile defensive systems against intermediate missiles. Senate leaders responded that the administration should not try to put any change into effect without the approval of the Senate. The Clinton administration ultimately conceded this point and recognized the Senate’s right to review the revised treaty language. President George W. Bush formally withdrew the United States from the ABM Treaty in June 2002. Thirty-one members of Congress unsuccessfully brought legal action against his administration, asserting that the president lacked the constitutional power to do so. 

The Role of the House Under the Constitution, the House is a spectator in the treaty making process. It has no formal role. This is changing, as the House has seized on its budgetary powers as the vehicle for making its voice heard. Treaties are not always self-executing. They typically require enabling legislation and the expenditure of funds before their provisions take effect. The Constitution gives the House control over the budget and, in the process, the ability to undo agreements between the Senate and the president.

A case in point is the Panama Canal Treaties. According to one observer, the House came quite close to destroying them by inserting language into the implementing legislation that disagreed with and contradicted parts of one of the treaties just approved by the Senate by identical 68–32 votes.8

The Carter administration’s implementing legislation was assigned to four House committees. Primary jurisdiction was held by the Merchant Marine and Fisheries Committee; its chair opposed the treaty and proposed his own version of the implementing legislation, which gave Congress a continuing say in supervising the Panama Canal for many years to come. Eventually, the Carter administration found it necessary to abandon its own bill in favor of the committee bill. This angered Panamanian leaders, who cited almost thirty articles of the House bill that violated provisions of the negotiated treaty. Final congressional approval was given to the implementing legislation only four days before the treaty was scheduled to take effect.

Appointment Powers

As originally envisioned, the power to approve or reject presidential appointments was closely related to the power to give advice and consent to treaties. By exercising a voice about the persons negotiating a treaty, the Senate could influence its content. In practice, this linkage was never fully put into place, and it has long since unraveled. The Senate has failed to exercise its confirmation powers actively or systematically. Frequently, it has not hesitated to approve ambassadors appointed solely for political purposes and without any other apparent qualifications for the post. This practice is heavily criticized by Foreign Service professionals due to appointees’ lack of expertise. However, it is defended by others, who argue that political appointees bring more political clout to the position of ambassador than careerists and can therefore be of value to the President. Typically, 30 percent of ambassadorial positions now go to political appointees or non-careerists. During the Reagan administration, this number reached a high of 38 percent. Under Clinton and Carter, it fell to 27 percent and, as of April 2019, it had risen to 49 percent in the Trump administration. Typically, many ambassadors are major campaign contributors. Obama’s political ambassadorial appointments had given $13.6 million to Democratic campaigns.

War Powers

The war powers of the Constitution are split into three parts. Congress is given the power to declare war and the power to raise and maintain an army and a navy. Presidents are designated as commander in chief of the armed forces. In the abstract, these powers fit together very nicely. In 140practice, their exact meaning is unclear. Alexander Hamilton saw them as a symbolic grant of power, with the actual power to decide military strategy and tactics held by professional soldiers. Many presidents have taken this grant of power quite literally. Franklin Roosevelt participated actively in formulating military strategy and tactics during World War II, and Lyndon Johnson took part in selecting bombing targets during Vietnam.

A further complicating factor is defining when a state of war exists. Is it any instance where U.S. troops are placed into combat, or must a war be declared into existence? In its Prize Cases decision of 1862, the Supreme Court ruled that the existence of a war was found in the prevailing conditions and not in a formal congressional declaration. U.S. practice has borne this out. Out of the over 125 “wars” that the United States has fought, Congress has declared only five: The War of 1812, the Spanish-American War, the Mexican War, World War I, and World War II.

The most visible means available to Congress in trying to limit the president’s use of force is the 1973 War Powers Resolution (see the Historical Lesson), which was passed over President Nixon’s veto. It requires the president to:

1. “In every possible instance,” consult with Congress before committing U.S. troops in “hostilities or into situations where imminent involvement in hostilities” is likely.

2. Inform Congress within forty-eight hours after the introduction of troops if there has been no declaration of war.

3. Remove U.S. troops within sixty days (or ninety days in special circumstances) if Congress does not either declare war or adopt a concurrent resolution approving the action.

Congress also can terminate U.S. military involvement before the sixty-day limit by passing a concurrent resolution. Such a resolution does not require the president’s signature and therefore cannot be vetoed.

Historical Lesson

War Powers Act

The 1973 War Powers Resolution is the starting point for most contemporary discussions about the proper relationship between Congress and the president. It was a highly controversial piece of legislation when passed and continues to be so today. The bill was passed over President Nixon’s veto, and no president has yet recognized its constitutionality. Members of Congress and scholars have called for its repeal. Others have proposed amendments.

Crises in both foreign policy and domestic policy provided a highly charged backdrop for a multiyear political tug-of-war between Nixon, the House, and the Senate over the question of placing limits on the president’s ability to deploy troops into combat without prior consultation with Congress. The principal foreign policy crisis was the Vietnam War. In the 1964 Gulf of Tonkin Resolution, Congress provided President Lyndon Johnson with the authority to take “all necessary measures” to repel any armed attack against the forces of the United States and to prevent further aggression. The facts of the Gulf of Tonkin incident, in which U.S. naval vessels were attacked by North Vietnamese forces, remain contested even today. Johnson maintained that he did not need this congressional endorsement to carry out the U.S. war effort.

Nixon took the same position in continuing and expanding the war to include the 1970 invasion of Cambodia. On the domestic scene, increased opposition to the Vietnam War and controversies surrounding the 1972 presidential election campaign created an electrifying political atmosphere that spurred congressional efforts to control presidential war powers. One incident was the 1972 Watergate break-in at the Democratic Party Headquarters and subsequent efforts to cover it up. A second was the October 1973 Saturday Night Massacre, in which Nixon’s attorney general and his deputy both refused to fire Archibald Cox, the special prosecutor appointed to investigate the Watergate affair. Both of them, along with Cox, resigned in protest.

The Senate acted first. In 1969 it passed a resolution proclaiming that U.S. forces could not be committed to combat “only from affirmative action taken by the executive and legislative branches . . . by means of a treaty, statue, or concurrent resolution.” In 1970, the House approved legislation requiring presidents, after placing troops into combat, to report to Congress on the circumstances leading to this action and its military scope. A House Foreign Affairs subcommittee considered seventeen war powers bills and resolutions in putting forward the bill. No prior approval from Congress was required. The House passed the legation by a 288–39 vote. Congress adjourned without the Senate taking any action.

In 1971, the House again passed this legislation. The Senate Foreign Relations Committee took up the proposed House bill, but its approach to limiting presidential war-making power was quite different. The legislation sent forward by the Senate specified conditions under which a president could commit troops to combat without congressional approval and set a time limit for how long such a deployment could last. The competing House and Senate bills eventually went to a conference committee, but only one meeting took place and Congress adjourned without reaching an agreement.

In 1972, both the House and Senate acted quickly to reintroduce their respective War Powers legislation. Significant points of disagreement remained, including limitations on the president’s right to send troops into combat without prior consent and the president’s timeline for reporting to Congress. The House had a 120-day reporting deadline, while the Senate’s deadline was 30 days. In July, the competing versions of the bill again went to a conference committee. On October 4 it emerged from committee and was approved by both the House (238–123) and the Senate (75–20). As promised, President Nixon vetoed the bill on October 24. There was no doubt that the Senate would vote to override Nixon’s veto. The House vote was less certain. Presented as pitting congressional power against presidential power, the House voted to override Nixon’s veto by 4 votes; 18 House members who had voted against the bill nevertheless voted to override Nixon’s veto, while 15 who supported the bill supported Nixon’s veto.

From the outset, the War Powers Resolution has been controversial. Senator Jacob Javits saw in it the basis for a new foreign policy compacts between the president and Congress. Senator Thomas Eagleton, originally a supporter of the legislation with Javits, voted against it because he claimed that it gave the president powers he never had—the power to commit U.S. troops abroad without prior congressional approval.

Applying the Lesson

1. What does the War Powers Resolution case reveal about Congress’s ability to influence the use of military force by the president?

2. Which is preferable: the War Powers Resolution or an Authorization of the Use of Military Force? Why?

3. What is the proper role of Congress in making decisions about the use of military force?

As of March 2019, presidents had submitted 168 reports to Congress.9 In doing so, they have not recognized the constitutionality of the War Powers Resolution. In reporting the Mayaguez rescue operation in 1975, President Gerald Ford stated that he was “taking note” of the War Powers Resolution but asserted that he acted on the basis of his commander-in-chief powers. In 2011, President Obama used language frequently employed by past presidents when he did not seek congressional approval in establishing the no-fly zone in Libya. In his notification to Congress, he stated that “this is a limited . . . operation which does fall in the president’s authority” and that he was informing Congress “consistent” with the War Powers Resolution.

One source of presidential hostility to the War Powers Resolution is the provision granting Congress the right to terminate hostilities after they have begun through the use of a legislative veto. It allows Congress to approve or disapprove executive branch actions after the fact, in a form short of legislation. In addition to the War Powers Resolution, Congress has inserted legislative vetoes into a wide range of foreign policy legislation, including arms sales and the export of nuclear fuel and facilities.10 Presidents have maintained that only Congressional action approved by the president or passed by Congress over a presidential veto is legally binding. On January 23, 1983, in a landmark case, the Supreme Court agreed with the presidential interpretation in making its ruling in U.S. v. Chadha. The closest that the legislative veto came to being used was with the transfer 143of nuclear material to India in 1980 and the sale of an AWACS and F-15 enhancement package to Saudi Arabia in 1981.

Another sore point with presidents is the sixty-day time limit imposed by the War Powers Resolution. Presidents have challenged the time limit on constitutional grounds and ignored it in practice. In 1999, for example, U.S. military operations in Kosovo passed the sixtieth day. Bill Clinton did not seek a thirty-day extension. Thirty-two members of Congress and others brought the case to court to try to block continued military action. The court ruled that they did not have legal standing and dismissed the case. A more recent controversy over the sixty-day limit came during the Obama administration; it argued that no report back to Congress was necessary since the operations being conducted in Libya did not qualify as “engaging in hostilities.”

The War Powers Resolution is not the only legislative document that presidents have at their disposal related to the use of military force. Another is the Authorization for Use of Military Force (AUMF). By February 2018, AUMFs had been cited by presidents as the justification for forty-one military operations in nineteen countries, beginning with Operation Desert Storm against Iraq in 1991. An excerpt of the most recent AUMF authorization, made in 2002 during the Iraq War, appears in Box 6.1. Presidents do not see a universal need for AUMFs. When questioned about military deaths in Niger in 2017, the Trump administration’s position was that an AUMF was not necessary since the presence of U.S. forces was permitted by separate legislation related to training and assistance missions. The most frequently invoked AUMF was issued after the 9/11 attacks. It gave presidents the authority to “use all necessary and appropriate force against anyone who committed or aided the attacks of September 11, 2001 or harbored such an organization or person in order to prevent a future attack.” As passed, it is of unlimited geographic scope and duration.

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Excerpt: House Resolution Authorizing the Use of Military Force against Iraq, October 2, 2002

Section 1

This joint resolution may be cited as the “Authorization for the Use of Military Force Against Iraq.”

Section 2: Support for United States Diplomatic Efforts

The Congress of the United States supports the efforts by the president to:

a. strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq and encourages him in those efforts; and

b. obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.

Section 3: Authorization for Use of United States Armed Forces

a. Authorization. The president is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

1. defend the national security of the United States against the continuing threat posed by Iraq; and

2. enforce all relevant United Nations Security Council Resolutions regarding Iraq.

b. Presidential determination. In connection with the exercise of the authority granted in subsection (a) to use force the president shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the president pro tempore of the Senate his determination that

1. reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and

2. acting pursuant to this resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001.

c. War powers resolution requirements:

1. Specific statutory authorization. Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

2. Applicability of other requirements. Nothing in this resolution supersedes any requirement of the War Powers Resolution.

Section 4: Reports to Congress

a. The president shall, at least once every 60 days, submit to the Congress a report on matters relevant to this joint resolution, including actions taken pursuant to the exercise of authority granted in section 2 and the status of planning for efforts that are expected to be required after such actions are completed, including those actions described in section 7 of Public Law 105338 (the Iraq Liberation Act of 1998).

b. To the extent that the submission of any report described in subsection (a) coincides with the submission of any other report on matters relevant to this joint resolution otherwise required to be submitted to Congress pursuant to the reporting requirements of Public Law 93–148 (the War Powers Resolution), all such reports may be submitted as a single consolidated report to the Congress.

c. To the extent that the information required by section 3 of Public Law 102-1 is included in the report required by this section, such report shall be considered as meeting the requirements of section 3 of Public Law 102-1.

There is nothing automatic about receiving an AUMF from Congress. In February 2015, Obama formally requested an AUMF to send troops to fight ISIS. He made it clear that, in his view, he already possessed the constitutional authority to conduct military operations against ISIS. The AUMF was sought to add further legitimacy to the actions he would take as commander in chief. It never reached the House or Senate floor for a vote.

Commerce Powers

The Constitution gives Congress the power to regulate commerce with foreign nations. In theory, this power belongs exclusively to Congress. In practice, power sharing between the two branches has been necessary. Congress may have the power to regulate foreign commerce, but only the president has the power to negotiate treaties.

Power sharing in the area of commerce has produced cooperation as well as conflict. The first innovative power-sharing arrangement was the 1934 Trade Agreements Act, by which Congress delegated to the president the authority to “implement into domestic law the results of trade agreements as they relate to tariffs.” This authority greatly enhanced the president’s power position in multilateral trade negotiations; it removed the threat of Congressional obstructionism in the formal approval and implementation of the negotiated agreement. Congress periodically renewed this grant of authority for a succession of presidents, changing only the time frame and permitted value of the reduction and inserting legislative veto provisions.

The Trade Reform Act of 1974 introduced the second major innovative power-sharing arrangement when it created a fast-track reporting procedure; Congress was required to vote “yes” or “no” on trade legislation that came before it within ninety days, and was prohibited from adding any amendments. Presidents often have found it difficult to obtain this negotiating authority, now renamed trade promotional authority. Proponents of fast-track authority argue that, without it, countries are unwilling to enter into agreements with the United States, since Congress may reject or 146amend the agreements. Fast-track authority also is seen as valuable because it protects Congress from domestic trade protectionist pressures. Critics are concerned that presidents will sacrifice environmental protection, food safety, intellectual property rights, and labor standards in the name of furthering free trade.

Bill Clinton was forced to allow his fast-track authority to lapse as part of the political price for Senate ratification of the treaty establishing the World Trade Organization. In December 2001, the House of Representatives passed a bill restoring fast-track authority to George W. Bush by a vote of 215–214. In 2015, Obama succeeded in obtaining fast-track authority for a three-year period, which was seen as necessary to gain approval of the Trans-Pacific Partnership (TPP) then being negotiated. Soon after becoming president, Donald Trump announced his intention to withdraw from the TPP, and initially showed little interest in gaining fast-track authority. This changed when a successor agreement to NAFTA, the U.S.–Mexico–Canada Trade Agreement, was under negotiation. In July 2018, Congress approved a three-year extension with little controversy.

The new agreement, signed on November 30, 2018, faces an uncertain future. Democrats have indicated that they might not permit a vote without stronger enforcement provisions for labor rights. Some Republicans have called for removal of steel and aluminum tariffs.

Congressional Structure and Foreign Policy

The four constitutionally based powers are brought to bear on foreign policy problems through Congress’s internal structure and its standard operating procedures. This section highlights four important by-products of these features: reliance on blunt foreign policy tools, absence of a single voice that can speak for Congress, presence of policy entrepreneurs, and significant power possessed by staff aides.

Blunt Foreign Policy Tools

Foremost among the tools for influencing policy on which Congress relies are its general legislative, budgetary, and oversight powers. Although these are formidable, Congress often finds itself frustrated in its efforts to fine-tune U.S. foreign policy or give it a new sense of direction, because of their bluntness and essentially negative character.

 

General Legislative Powers Four basic forms of congressional action exist:

· simple resolution, a statement made by one house

· concurrent resolution, a statement passed by both houses

· joint resolution, a statement made by both houses that if signed by the president becomes law.

· legislative bill, passed by both houses and signed by the president.

Congress can override the president’s veto of joint resolutions and legislative bills. This occurred just prior to the 2016 presidential election, when the Senate voted 97–1 and the House voted 348–77 to override Obama’s veto of a bill that would allow families of those killed in the 9/11 attack to sue Saudi Arabia if it were found to have aided al-Qaeda. Obama had opposed the bill for setting a possibly dangerous precedent that other countries might use against the United States in response to military or intelligence activities. Congress failed to override Trump’s presidential veto of joint resolutions to block $8.1 billion in arms sales to Saudi Arabia and the United Arab Emirates that he authorized by using emergency powers in the Arms Export Control Act.

An early post–World War II study of Congress found that, while presidential policy proposals were primarily presented as bills, congressionally initiated actions tended to be expressed as simple resolutions.11 The challenges facing legislation originating in Congress is illustrated by the fate of comprehensive immigration reform. The foundational law governing U.S. immigration and citizenship policy is the 1952 McCarren-Walter Act. It was vetoed by President Truman for being un-American and discriminatory, and then passed over his veto. The last comprehensive immigration reform legislation passed by Congress occurred in 1986 during the Reagan administration. Both George W. Bush and Barack Obama identified comprehensive immigration reform as high-priority items and failed.

 

Barnacles is the term often used to describe the amendments that Congress attaches to foreign policy legislation sought by the president.12 One type of barnacle is earmarking, or designating funds contained within a piece of legislation for a specific country. Foreign aid earmarks for Israel are among the most prominent and recurring examples of funds designated for specific purposes. For example, the December 2010 budget resolution directed that $205 million be given to Israel to help construct a missile defense system. A different type of barnacle can be found in the House 2014 budget bill. It forbade the Obama administration from spending funds to transfer detainees at Guantanamo Bay to the United States, and from U.S. military involvement in Syria unless approved by Congress.

 

Budgetary Powers In the fall of 2017, press reports observed that “rank and file senators are eyeing the annual defense bill . . . as a chance to challenge President Trump’s recent controversial moves on national security.” When the budget was passed in March 2018, it was described as a “broad rebuke” to Trump’s policy agenda. While providing him with a sizable increase in funding for the military, Trump was prohibited from building a concrete wall along the Mexican border. Instead, money was provided for 33 miles of fencing, which had already been authorized under previous legislation. The budget bill also rejected Trump’s proposed 30 percent cut in State Department funding and the administration’s request to start a new round of base closures, as well as more money for specific pieces of military hardware.

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Undercutting the perception that Congress can use its budgetary powers to influence policy is the reality that these powers are difficult to use because of how the budget is constructed. Authorization decisions are made separately by the committees with legislative jurisdiction over the relevant policy area. Appropriations decisions are made by the House and Senate Appropriations Committees and their subcommittees. The omnibus spending bill passed by the House in January 2014 comprised funds found in twelve different spending bills.

Three problems for foreign and defense policy stand out:

1. Coherence. In 2015, the Senate passed a $600 billion defense policy bill authorizing the sale of lethal offensive weapons to Ukraine. It then voted down a bill authorizing the government to spend money to pay for it.

2. Inconsistency in application. Foreign aid allocated by the State Department comes under far more scrutiny than aid distributed by the Pentagon. In Afghanistan, the State Department had to verify, among other things, that the programs were sustainable and transparent, and that the Afghan government was taking steps to reduce corruption, empower women, and protect human rights before releasing its funds. The Pentagon faced no such constraints.

3. End runs. The primary vehicle for end runs, the Overseas Contingency Operations (OCO) account, was created to fund temporary war-related costs in frontline states, most notably Afghanistan, Pakistan, and Iraq. However, it has been used to fund war-related operations in places such as Yemen, the Horn of Africa, and the Philippines to circumvent serious objections that might be encountered if the expenditures surfaced in other spending bills.

A second problem with using the budget as an instrument to shape the direction of U.S. foreign policy is that programs cost money, but “policies” may not. Policies are able to raise expectations, place U.S. prestige on the line, or commit the United States to a course of action in the eyes of other states. Congress tends to find that it has little choice but to support—fund—policy initiatives, at least on the surface. Senator John Kerry spoke to this point in expressing his opposition to the congressional resolution supporting the Persian Gulf War: “I hear it from one person after another—I do not want the President to look bad. . .. The President got us in this position. I am uncomfortable—but I cannot go against him.”13

A third problem with Congress’s ability to influence foreign policy lies with the implementation of congressional budgetary decisions. In 1971 Congress appropriated $700 million for a new manned bomber. The funds went unspent because the Nixon administration opposed the project. The reconstruction of Iraq provides another example of the limited ability of Congress’s budgetary powers to influence the implementation of American foreign policy. In 2003, the Bush administration called for a quick infusion 149of money into Iraq to speed its recovery and transformation in the aftermath of the war. Yet in June 2004, just days before power was transferred to a new Iraqi government, none of the $500 million for health care, $400 million for roads and bridges, or $4.2 billion for water and sanitation improvements had been spent.

Oversight The term oversight refers to the actions of Congress regarding the bureaucratic implementation of policies. It is no easy matter. For political and bureaucratic reasons, getting presidents to reverse policies is difficult. Two general approaches exist: firefighting and police patrolling. Firefighting oversight occurs after the fact,14 as in congressional efforts to find out key details of the 2017 attack on U.S. soldiers in Niger: why they were attacked, by whom, and why they were surprised. Firefighting investigations often take on a highly charged political atmosphere, such as those into the 2012 attack on the U.S. government buildings in Benghazi and into Russian interference in the 2016 presidential election. The latter case is discussed in box 6.2. Police patrolling is oversight carried out on a regular basis to keep informed about an ongoing situation and to anticipate problems. It can be carried out in public sessions, such as one by the Senate Armed Services Committee in 2017 on foreign cyber threats, or closed-door briefings, such as those on Syria’s civil war and North Korea’s nuclear program.

Box 6.2

Investigating Russia’s Involvement in the 2016 Presidential Election

Oversight is one of Congress’ most fundamental powers in exercising its voice in foreign policy. One of the most difficult challenges in using that power is getting members of Congress to agree about what to investigate and what conclusions to draw. This was quite evident in the House Intelligence Committee hearings into Russian involvements in the 2016 presidential election. For Democrats, the main issue was Russian meddling through social media and interactions with the Trump campaign. For Republicans, the primary concern was the behavior of the FBI and intelligence agencies in carrying out its investigation of Russian links to the Trump campaign. Particularly controversial during this investigation were the actions of committee chair Daniel Nunes (R-Calif.); he collaborated with White House officials to secretly examine classified intelligence files, which revealed that Trump and his campaign had been caught up in the FBI surveillance operations. Nunes then briefed Trump on this information and went public with it.

The House report, issued by the Republican majority without Democratic input, found no evidence of collusion or coordination between the Trump campaign and Russian operatives. It also found “significant intelligence tradecraft failings.” The Democratic rebuttal stated that the Department of Justice had provided the Foreign Intelligence Surveillance Court, which approves domestic covert intelligence gathering, with “contemporaneous evidence” of Russia’s interference in the 2016 election, and information related to Russian links and outreach to Trump campaign officials.

The controversy did not end there. It continued after Justice Department special counsel Robert Mueller III finished his two-year investigation into Russian interference in the 2016 presidential election. His report charged 34 people, including seven Russian nationals. He obtained guilty pleas from seven individuals, including several from the Trump administration. The Mueller Report did not find sufficient evidence to charge the Trump presidential campaign with conspiring with Russia to influence the election but did present evidence that Russia spread disinformation in a systematic fashion over social media and stole and disseminated personal emails from Clinton campaign officials. While arguing that sitting presidents cannot be charged with wrongdoing through the criminal justice system, it also presented evidence of the Trump administration’s efforts to block the investigation. In his testimony before the House Judiciary and Intelligence Committees on July 24, 2019, Mueller reaffirmed that his report did not totally exonerate President Trump or say that there was no obstruction. Mueller also warned that Russia was preparing to interfere in the 2020 presidential election.

Mueller’s testimony was reinforced by the release of the first of four volumes of a highly redacted investigative report by the Senate Intelligence Committee. A later volume will examine Russia’s use of social media. The report concluded that all 50 states had been targeted by Russia in the 2016 presidential election in what it termed “an unprecedented level of activity against state election infrastructure.” This included the ability to change or delete voter data in Illinois. The Intelligence Committee report went on to conclude that Russia and other adversaries would seek to interfere in the 2020 elections, and that other countries were working to replicate what Russia had done.

These hearings and reports did not lay an immediate foundation for congressional action. At the time they were released, the Democrat-controlled House had just passed legislation that would provide states with hundreds of millions of dollars in grants to improve election security. Senate Majority Leader Mitch McConnell has blocked Senate consideration of the bill, arguing that it is highly partisan, built around the conspiracy theory of Trump’s collaboration with Russia, and ignores the progress made in correcting the Obama administration’s failure to prevent Russian interference.

In addition to holding briefings, Congress often establishes reporting requirements that must be met. Three major types are used. One standard tool is to require government agencies to provide periodic reports on their activities and events abroad. The 2019 annual State Department report on human trafficking placed twenty-two countries in Tier 3, defined as those 151countries without policies meeting minimum standards that are not making an effort to improve. Included among them were Iran, Russia, Libya, Kuwait, and Venezuela. The United States Commission on International Religious Freedom’s 2019 Annual Report identified twenty-eight countries in which significant religious freedom violations existed, either in terms of persecution or discrimination. Typically, countries identified as not meeting U.S. performance standards in a policy area must be recertified in order to qualify for foreign aid and trade preferences.

A second type of reporting requirement is a onetime report. For example, in the 1986 Anti-Apartheid Act, Congress identified ten issues on which it wanted the president to furnish information. The third type is notification that a particular type of foreign policy action has been or will be taken. Most of these reports do not concern politically charged issues or involve changes in the distribution of foreign aid funds, arms sales, and arms control initiatives, but on occasion they do. Recently, reporting issues have arisen around military operations. The National Defense Authorization Act for Fiscal Year 2018 (Defense bill for short) required the Secretary of Defense to promptly submit written notices to congressional defense committees of any sensitive military cyber operations, no later than forty-eight hours after they are carried out.

One long-standing sensitive reporting policy area involves covert action. Initially, there was little if any meaningful Congressional control over the CIA. When asked if the committee he chaired had approved funding for a 36,000-man “secret” army in Laos, Senator Allen Ellender, chairperson of the Senate Appropriations CIA subcommittee, replied, “I did not know anything about it . . . I never asked. . .. It never dawned on me to ask about it. I did see it published in the newspaper some time ago.”15

Beginning in 1974, Congress’s attitude toward the intelligence community began to change.16 One factor prompting the new outlook was a series of revelations about CIA wrongdoing and excess. The two most publicized events were one implicating the CIA in a destabilization campaign directed at bringing down the socialist government of Salvador Allende in Chile, and another including allegations that the CIA had violated its charter by undertaking surveillance of U.S. citizens inside the United States. In their aftermath, Congress passed the Hughes-Ryan Amendment to the 1974 Foreign Assistance Act. The amendment required that, except under exceptional circumstances, the CIA must inform members of six congressional committees “in a timely fashion of the nature and scope of any CIA operation conducted for purposes other than obtaining information.”

According to the terms of the Hughes-Ryan Amendment, the president was also required to make a “finding” that each covert operation is important to national security. Presidential findings have included such information as the time and duration of the activity, the risks involved, funding restrictions, their relationship to prior National Security Council (NSC) decisions, policy considerations, and proposal origin.17 This has 152not always meant that Congress has been well informed. The presidential finding for the Iran arms transfers carried out by the NSC was signed after the operation began, and Director of Central Intelligence William Casey was instructed not to inform Congress. The 1975 presidential finding supporting U.S. activities in Angola was so vague that the entire continent of Africa was identified as the location of the operation.18

The Absence of a Single Voice

Traditionally, the work of Congress has been done in committees. It is here that political deals are made, and the technical details of legislation worked out. Congress, as a whole, was expected to give its consent quietly and expeditiously to committee decisions; more often than not, it did. Beginning in the early 1970s, the focus of decision-making shifted from the full committee to the subcommittee. The result has been an even greater decentralization of Congress in a number of different ways.

First, the executive branch must give increased attention to the foreign policy views of all members of Congress, because foreign-policy-relevant legislation now springs from a greater variety of sources. As one State Department official put it, “It used to be that all one had to do was contact the chairman and a few ranking members of a committee, now all 435 members plus 100 senators have to be contacted.”19 In 2000, legislation allowing the sale of food to Cuba was part of an agricultural spending bill. A prohibition on spending funds for planning related to the Kyoto Protocol was inserted as an amendment to an appropriations bill for the Environmental Protection Agency.

Second, there is the growing tendency for prospective pieces of legislation to be referred to more than one committee. Multiple referrals are necessary because of the lack of fit between the jurisdictions of congressional committees and policy areas. At least three Senate committees and seven subcommittees claim jurisdiction over cybersecurity. A dozen Senate committees are involved in foreign economic policy, and nearly fifty subcommittees are involved in foreign policy regarding the Third World.20

Policy Entrepreneurship

A change in attitude has accompanied the trend toward increasing decentralization. Policy individualism has replaced party loyalty as the motivation behind much congressional action. As a result, the long-standing congressional norms of deference and apprenticeship have been replaced by expectations of power sharing and policy input. Entrepreneurship is the label frequently attached to this new outlook. A policy entrepreneur is someone who is looking for opportunities to make political capital out of policy gaps.21 Many saw policy entrepreneurship at play in the establishment of a select committee to investigate the Benghazi attacks six months before the 153midterm elections. This perception was reinforced by comments made by Republican House Majority Leader Kevin McCarthy; he stated that the hearings had achieved the desired result because Hillary Clinton’s positive image in polls had declined.

The entrepreneur is different from the traditional foreign policy gadfly, someone who raises issues to influence the terms of the policy debate and is concerned with long-term policy gains.22 Gadflies are found across the political spectrum. Among the most outspoken gadflies of late have been John McCain and Ron Paul. Before his death, McCain was identified as the “critic in chief” of the Trump administration’s foreign policy. Paul has been a leading congressional critic of the NSA electronic surveillance program and the presidential use of military power without explicit Congressional approval.

Regardless of whether the member of Congress is a gadfly or policy entrepreneur their increased visibility in foreign policy issues has the potential for creating conflict. In 2011 Representative Dana Rohrabacher was visiting Iraq and told its prime minster that the killing of Iraqi dissidents might be a crime against humanity. The entire U.S. delegation was asked to leave Iraq. In 2019, at the urging of President Trump, Prime Minister Netanyahu changed his position and prohibited Reps. Ilhan Omar and Rashida Tlaib from visiting Israel. They were two of four liberal congresswomen who routinely opposed Trump who characterized them as “the Squad.”

Staff Aides

A shortage of information has always been a problem for Congress when it comes to making foreign policy. Few members can hope to acquire the background and expertise to understand the full range of topics that may come before them. They heavily rely on staff aides for information. The number of staff aides has grown dramatically. In 1947, there were roughly five hundred committee staffers and two thousand personal staffers. By the 1990s, the House was employing some eleven thousand staffers and the Senate another six thousand. The major House and Senate foreign policy committees (Armed Services and Foreign Affairs/Foreign Relations) each have over fifty staffers.

The emergence of numerous and well-informed staff aides has given the problem a new focus.23 Concerns have been expressed about (1) whether the staffers are serving Congress, or just leading willing members from issue to issue, and (2) whether an activist staff might be overloading Congress with new issues, robbing it of the time needed for debate and deliberation. Congress as a whole has also increased its information-gathering and information-processing capabilities by establishing or increasing the size of the Congressional Research Service (established in 1914), the Government Accountability Office (which dates back to 1921 under a different name), and the Congressional Budget Office (established in 1974). 154Representatives and senators can also draw on the products of private nonprofit research institutes and think tanks (see chapter 5) such as the Brookings Institution, the Cato Institute, and the Heritage Foundation.24 Until the 1970s, think tanks were relatively few in number. Today, they are prominent fixtures on the Washington, DC, political landscape.

Influence of Party and Region

It is clear that Congress’ difficulty in speaking with one voice on foreign policy greatly complicates its efforts at efficiency. This difficulty is brought into even greater focus by examining the influence of party and region on foreign policy decisions. The overwhelming majority of votes occur along party lines, a tendency that has become more pronounced since the 1980s. One area in which partisanship appears to surpass all other factors in influencing congressional involvement in foreign policy involves control of presidential war powers. The single best predictor of whether Congress will remain quiet or vocally oppose presidential calls for the use of force is its partisan composition. When the opposition party is in control, Congress raises its voice.

Strong as it may be, party affiliation cannot withstand all of the competing pressures facing representatives and senators when they vote. Splits within the Republican and Democratic parties are a recurring problem. In the late 1990s, senior Republican leaders embraced an internationalist outlook rooted in Cold War foreign policy triumphs, while more junior Republicans tended to have a different worldview.25 They opposed supporting loan guarantees to Mexico and expensive new weapons systems, favored privatization of foreign aid, and showed little interest in bipartisan resolutions supporting the president in Bosnia or elsewhere.

The arrival of Tea Party members into Congress after the fall 2010 election accentuated this split. A revolt against Republican leadership by Tea Party members defeated legislation that would have extended the provisions of the Patriot Act for one year. The bill had to be introduced a second time to get it passed. Tea Party members also tend to be budget hawks, who are less willing than the party leadership as a whole to spare the defense budget from cuts. This divide was quite visible as Congress grappled with how to respond to Obama’s call for a vote on military action in Syria. Traditional conservative hawks led by McCain supported it, while noninterventionist Republicans led by Rand Paul opposed it.

The Democratic Party is beset with its own internal struggles on foreign policy, which have split conservatives and liberals. This came through quite clearly in the conflict over revelations that the National Security Agency had engaged in a covert electronic communications collection program that gathered data on Americans. Democratic Senator Dianne Feinstein, chair of the Senate Intelligence Committee, strongly supported the NSA. Democratic committee members Mark Udall and Ron Wyden were vocal opponents of the program, arguing that it violated the Fourth Amendment.

Geographic interests are also a significant influence on congressional votes. Today, as in the past, U.S. involvement in the global economy has an uneven impact on different areas of the country, producing regional conflict over how to define the American national interest.26 U.S. foreign policy can be seen as driven by a coalition of the South and the West, regions that benefit from a foreign policy designed to promote free trade and ensure international stability. Opposed to this view is the Northeast; although it once benefited from such policies, it now sees itself as economically disadvantaged by them and favors protectionism and cuts in defense spending. Geography and economics come together to influence foreign policy votes in other ways as well. Those representing districts negatively affected by foreign imports from oppressive regimes raise human rights issues more often than those whose districts rely more heavily on foreign markets.27 The potential for tension between party and region was very much in evidence in the Congressional Republican reaction to Trump’s efforts to use tariffs as leverage in trade talks with China. Those from states with aging industries supported it; those in farming states, against whom China was retaliating with tariffs of its own, urged caution or were opposed.

Members of Congress are also especially protective of how their constituents fare in receiving government funds. In 2019, House Minority Leader Kevin McCarthy stopped a bipartisan effort to prevent Chinese companies from contracting with U.S. transit systems because one of those firms had a plant in his district. During the cold war, Henry “Scoop” Jackson, who sat on the Armed Services Committee, was known as the “Senator from Boeing” for his ability to steer aircraft contracts to the Boeing Company, which was headquartered in his home state of Washington. This concern for “pork” extends beyond the committee system. At one time, the contract for the B-1 bomber had four hundred subcontracts in more than 400 of the 435 districts of the House.

Outsourcing Foreign Policy

Congress has turned with increasing frequency to another mechanism for overcoming the many forces that impede efficiency in making policy and exercising oversight: the special commission. These may be composed of outside experts, retired government officials, or handpicked members of Congress. Commissions deal with the inefficiency problem in a number of ways. First, the appointment of a commission represents a positive symbolic response to a perceived foreign policy problem. Second, commissions remove political pressure from policy makers by providing them with political cover for making difficult decisions. Third, commissions provide opportunities for educating the public, and for information gathering that extends beyond the closed network of congressional staffers, committee and subcommittee chairs, and executive branch officials.

156

Commissions have been created to deal with several different types of problems. One type is formed to investigate and make recommendations on a particular policy issue or problem. The National Commission on Terrorist Attacks upon the United States (the 9/11 Commission) was this type of committee. A second type is set up to investigate and report back on an ongoing problem. The Commission on Wartime Contracting is an example; of particular concern to this commission have been questions of waste, fraud, and financial abuse stemming from the increased use of private contractors in combat theaters. The third type of committee is created to provide Congress with policy options to deal with a problem. The Defense Base Realignment and Closure (BRAC) Commission was created for this purpose. Closing military bases is a politically unpopular decision, given the economic impact on local communities. Instead of having Congress identify which bases to cut, the BRAC Commission was established. Five BRAC rounds have taken place, in 1988, 1991, 1993, 1995, and 2005. More than 350 military installations have been closed by this process.

There is nothing automatic about action on commission proposals. Many of the recommendations of the 9/11 Commission were ignored. The December 2005 “report card” issued by members of the 9/11 Commission gave the administration five Fs and twelve Ds for its follow-through in implementing its recommendations. It received only one A, for its anti-terrorism finance efforts.28 Commissions can also produce political backlash because of their recommendations. Since 2005, presidents, including Trump, have been unsuccessful in establishing a new BRAC round. Congress has forbidden the Pentagon from spending any funds “to propose, plan or execute” the base closing process.

Not everyone is pleased with the increasingly frequent use of commissions. In addressing the Senate in 2002 on the subject of special commissions, specifically the creation of the 9/11 Commission, Trent Lott observed that, in his opinion, congressional commissions were “an abdication of responsibility.” Why, he wondered, “do we have an Armed Services Committee, an Intelligence Committee, a Government Affairs Committee, or a Foreign Affairs Committee?”29

Congress and the President: The Changing Relationship

The relationship between Congress and the president is not static. One way to capture the changing relationship is by analyzing the degree to which Congress has been assertive and active in its dealings with the president on foreign policy matters.30 Combining these two dimensions produces four patterns. A competitive Congress is both active and assertive in foreign policy and thus quite willing to challenge a president’s lead. A disengaged Congress is neither active nor assertive and tends to readily follow 157a president’s foreign policy preferences. A supportive Congress is active but not aggressive. It cooperates with the president on a broad range of foreign policy initiatives without challenging him. Finally, a strategic Congress is not particularly active, but is willing to and capable of challenging a president on specific issues that conflict with its foreign policy agenda.

From the end of World War II until about 1958, a supportive Congress existed. Relations between the two branches were largely harmonious. Bipartisanship was the order of the day. The president was the acknowledged architect of American foreign policy, and Congress’s role was to reaffirm his policy initiatives and provide him with the means to act. Often its participation took on a plebiscitary character, with the passage of area resolutions such as those on the Middle East, Taiwan, and Latin America. Periods of dissent did occur, such as after the “loss of China” and during the McCarthy hearings, but overall, the Cold War consensus held.

The next decade, 1958–1968, saw the emergence of a strategic Congress. The Cold War principles around which the earlier bipartisan consensus was built began to fray. Congress was not in open revolt against the president; proclamations of support were still present, most notably for the Gulf of Tonkin Resolution, and failures such as the Bay of Pigs invasion did not evoke partisan attacks. However, pockets of resistance formed, and Congress moved to challenge the president selectively. Two key points of confrontation were the Vietnam War and the existence of a missile gap.

From 1968 into the mid-1980s, Congress was both active and assertive. This competitive Congress not only sought to limit the president’s ability to conduct foreign policy by passing such measures as the War Powers Resolution and the Case-Zablocki Act, but it also resisted many of the president’s most important foreign policy initiatives. The Jackson-Vanik Amendment undermined Nixon’s détente policy, and Carter was challenged on the Panama Canal Treaties.

The period from the mid-1980s until September 11, 2001, marked a return to a strategic Congress. Once again, Congress selectively engaged the president on foreign policy issues. In some cases, such as the annual vote on most favored nation status for China, the interactions became almost ritualistic. On other occasions, such as the Comprehensive Nuclear Test Ban Treaty, ratification of NAFTA, and granting of fast-track trade authority, the conflicts were highly partisan and spirited.

The terrorist attacks of 9/11 led to the emergence of a disengaged Congress willing to cede the authority to the president in making crucial foreign policy decisions. Nowhere is this more evident than in George W. Bush’s ability to obtain an AUMF resolution from Congress against Iraq by votes of 77–23 in the Senate and 296–133 in the House. Congress was not totally compliant, but it did not challenge the president directly. Objections to the Bush administration’s proposed language authorizing the president “to use all means that he determined to be appropriate” were addressed in behind-the-scenes meetings and led to mutually acceptable 158language being found. This disengaged Congress did not last long. It soon showed signs of moving back toward a strategic Congress, which by 2005 was firmly in place as Bush and Congress sparred regularly over the Iraq War.

By the end of Obama’s presidency, a competitive Congress had reemerged. Congress often acting in a preemptive manner, as highlighted by two examples from 2015. In March, Israeli Prime Minister Benjamin Netanyahu addressed a joint session of Congress at the invitation of House Speaker John Boehner. Obama was not consulted on the invitation. In his speech, Netanyahu spoke out strongly against a nuclear arms agreement with Iran. In December, after Obama promised world leaders at the Paris climate conference that the United States would be in the lead in responding to global climate change, the House joined the Senate in passing a resolution preventing the Environmental Protection Agency from enforcing tighter standards.

Trump has also faced a competitive Congress. The Dateline feature that opened this chapter highlighted one area of deep competition: the Yemen War. Later in 2019, Trump found it necessary to sign the Hong Kong Human Rights and Democracy Act. It placed economic sanctions on China and required that the State Department annually review Hong Kong’s status as an autonomous region in China. Trump had threatened a veto citing ongoing trade negotiations with China. The Senate unanimously approved the bill and the House voted to adopt it 417–1.

Trump’s ongoing positive assessment of Putin has confounded both Republicans and Democrats in Congress. Prior to their summit meeting in July 2017, Trump indicated that he respected Putin. When reminded that Putin was a killer, Trump responded, “There are a lot of killers.” Trump further angered Congress with his praise of Putin at the Helsinki Summit and failure to confront Putin with the evidence of Russian meddling in the 2016 presidential campaign. Less than one month into his presidency, nine Republican senators wrote to Trump urging him to be tough in Russia, citing Ukraine, Syria, and cybersecurity. In April 2017, the Senate passed sanctions legislation by a 98–2 vote. In July, a House–Senate compromise was reached containing language limiting the president’s power to lift sanctions without congressional consent. The Senate again passed the bill by a 98–2 vote. The House followed with a 419–3 vote. Given the ease with which a veto would have been overridden, Trump signed the bill but included a signing statement to the effect that certain provisions were unconstitutional and might not be enforced.

The competitive relationship between President Trump and Congress reached new heights in October 2019, when the House began to move forward with impeachment hearings over his conduct of foreign policy. The immediate spark was a whistleblower report related to a July 25 phone call between Trump and the president of Ukraine, in which Trump sought to use his presidential powers to advance his re-election. At the center of 159the controversy was the holdup of U.S. arms sales to Ukraine in an effort to push Ukrainian officials to publicly announce the launch of an investigation into the 2016 presidential election and into a Ukrainian energy company that employed the son of 2020 Democratic presidential candidate Joe Biden.

The existence of a competitive Congress does not by definition preclude cooperation between the two branches of government. One example is the innovative way in which Congressional participation was handled in approving the Iranian nuclear accord. Obama had initially claimed the authority to enter into a nuclear agreement with Iran without congressional approval. When this proved to be politically untenable, Obama agreed to a compromise. The legislation was structured in a way that would allow Congress to exercise its voice by voting its disapproval, but at the same time give Obama the upper political hand since his veto would be difficult to overcome.

Over the Horizon: A New War Powers Act?

The fundamental problem facing Congress in exercising its foreign policy voice in the future will continue to be the challenge of managing the contradictory pressures of efficiency and participation. Nowhere does this challenge appear more difficult to resolve than in the exercise of congressional and presidential war powers. The focal points of the debate over how to proceed are the requirements of the War Powers Act and the use of AUMF to justify a wide range of military activities. Efforts to modify or end the use of these grants of presidential authority have become increasingly common in recent years, raising the following question: Are we moving closer to bringing them to an end, or is their failure an indication of their permanence?

In January 2014, Senators Tim Kaine and John McCain put forward the War Powers Consultation Act. They characterized the Act as bipartisan legislation to strengthen the current ineffective consultative process between Congress and the president regarding whether and when to engage in military action. The Act was based upon a 2008 bipartisan National War Powers Commission report,31 with a number of key provisions: consultation between the president and Congress before deploying U.S. troops into significant armed conflict; the creation of a permanent Joint Congressional Consultation Committee; and a congressional yes/no vote on significant armed conflicts within thirty days. For some, this did not go far enough. In November, Senator Rand Paul called for Congress to vote on a declaration to proclaim war against ISIS. His declaration would have limited military action to one year and placed significant restrictions on the use of ground forces.

The following year, Rep. Chris Gibson, along with thirty-four cosponsors, introduced a bill to reform the War Powers Resolution. Among its provisions was the requirement that in every possible instance the president must submit a written report to Congress before introducing U.S. armed forces into hostilities or situations in which involvement in hostilities is imminent. It also prohibited the use of available military forces from being used unless specific legal or operational conditions were met.

In 2017, Senator Paul sought to repeal the 2002 AUMFs used to send military forces to Afghanistan and Iraq, through an amendment to the 2018 National Defense Authorization Act. During Congressional testimony, the Trump administration asserted that it was not interested in Congress passing a new AUMF, and that, if it did, the agreement should be of unlimited duration. The amendment was tabled by a 61-36 vote.

The question of the president’s right to place troops into combat situations came up again in 2019 with the Iranian crisis, which is detailed in the Dateline section at the beginning of chapter 9. As the threat of war faded, Senate Majority Leader Mitch McConnell announced that he would permit a vote on a bipartisan amendment to the Defense Authorization bill currently before Congress to require Congressional approval for any military action against Iran. The amendment required 60 votes to be included in that bill. It failed with a 50–40 vote. Four Republicans voted with the Democratic majority in support of the bill.

As the crisis was unfolding, the Trump administration laid the foundations for military action without the consent of Congress. Among the arguments considered were that ties existed between Iran and al-Qaeda which would permit use under the AUMF. That position was not endorsed by the Pentagon.32

Critical Thinking Questions

1. Is there a need for a new War Powers Act? Why or why not?

2. Is party identification or geography (state or district represented) a more important influence on how members of Congress vote on foreign policy issues? Support your answer.

3. What changes would you make to Congress’s internal structure and operating procedures to make its voice more effective in foreign policy?

Key Terms

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· Authorization for Use of Military Force (AUMF), 143

· barnacles, 147

· gadfly, 153

· legislative veto, 142

· oversight, 149

· policy entrepreneur, 152

· presidential finding, 151

· ratify, 136

· reporting requirement, 150

· trade promotional authority, 145

· War Powers Resolution, 140

Further Reading

Michael Allen, Blinking Red (Washington, DC: Potomac Books, 2013).

This book chronicles the often tense and combative congressional politics that went into the creation of the Office of the Director of National Intelligence following the 9/11 attacks.

Linda Fowler, Watchdogs on the Hill (Princeton, NJ: Princeton University Press, 2015).

This book examines the decline of congressional oversight of U.S. foreign policy. Using case studies, the author attributes this decline to several factors, argues for the importance of oversight in generating information for the public, and proposes reforms.

Michael Hayes, “Congress and War Powers: Symbolism and Nondecisions in the Struggle for Influence,” Congress and the Presidency 45 (2018), 185–207.

This article focuses on four in-depth case studies of foreign policy in the Clinton administration as the basis for testing the theory of non-decision-making, situations in which the mobilization of bias prevents action.

Louis Henkin, Foreign Affairs and the Constitution (Mineola, NY: Foundation Press, 1972).

This classic account looks at American foreign policy making from a constitutional perspective that emphasizes the distribution of powers in the Constitution and the legislative legacy that developed from it.

John Kyl, Douglas Feith, and John Fonte, “War of Law,” Foreign Affairs 92 (July 2013), 115–25.

This article defends the congressional record of rejecting treaties and international agreements on the grounds that international law subverts U.S. sovereignty and lessens accountability of the government to voters.

Douglas Kriner and Eric Schickler, “The Resilience of Separation of Powers? Congress and the Russia Investigation,” Presidential Studies Quarterly 48 (September 2018), 436–55.

This article places the Russia investigation in a larger historical context. The authors argue that it fits with past historical patterns, and that congressional investigations do have the potential to impact politics and policy.

Jordan Tama, “Independent Commissions as Settings for Civil-Military Deliberation,” Armed Forces and Society 42 (April 2016), 407–26.

This article examines the activities and impact of three independent advisory commissions established by Congress to examine issues related to women in the military.