Who runs foreign policy, the president or Congress?


Who runs foreign policy, the president or Congress?

Foreign policy is arguably an exceptional area in which the president can dominate, evading constitutional limitations. This is an idea developed in the 'dual presidency' or Two Presidencies -theory put forward by Aaron Wildavsky during the Cold War. Wildavsky analyses presidential power by considering that the president has two major concerns: domestic and foreign policy. He argues that presidents prefer to focus on foreign policy because the US political system gives them greater control in this area.

This gives rise to the idea that there are effectively two presidents: a foreign policy president who is powerful, with strong ability to achieve their policy goals, and a domestic policy president who is severely constrained.

Presidents have accumulated foreign policy powers at the expense of Congress in recent years, particularly since the 9/11 attacks. The trend conforms to a historical pattern in which, during times of war or national emergency, the White House has tended to overshadow Capitol Hill.


This film by the Cato Institute (right leaning libertarian) think tank make the case that Congress has abandoned it's responsibility to check the presidents' war making power.


Friction by Design

Aaron Wildavsky proposed in the Two Presidencies thesis in 1960, that there exists a marked difference between the constraints operating on the president in domestic and in foreign policy. The constraints on the president domestically are considerable, whereas he has greater freedom of action in foreign policy. 'invitation to struggle' (Edward S Corwen) between the president and Congress for control of foreign policy has been won by the president who, since the Second World War especially, has assumed control for the overall direction of foreign policy. Congress will usually defer to the president, particularly during periods of perceived threat to the USA. There may be attempts at congressional assertion at other times but, especially in the use of the armed forces, the president's position as commander-in-chief gives him the upper hand. If the president initiates military action, Congress will rarely have the inclination or the ability to offer an effective or even coherent challenge. This is referred to as rallying around the flag-

The President is Commander in Chief and Chief Diplomat. He can command the military, negotiate treaties and appoint ambassadors, but only Congress can declare war, the Senate must ratify treaties and the President's appointments must be approved by the Senate. In this sense, The American constitution divides responsibility for foreign policy between the president and Congress, and hence extends ‘an invitation to struggle’. (Edward Corwin)

However, since the end of World War Two, and the emergence of America as a world superpower, the president has assumed control for the overall direction of foreign policy. Nevertheless, Congress still retains a significant role; the broad pattern in the president’s relationship with Congress has been that, in periods of tension or conflict abroad, Congress will defer to the president, (rally round the flag) but if there is no immediate threat to national security, it will attempt to assert its interests. The federal bureaucracy and public opinion may also restrain the president.

Possible presidential advantages in foreign policy can be examined in constitutional, political and practical terms.

Constitutional

· Presidential advantages The Constitution gives the president significant foreign policy powers that might enable them to dominate policy in this area, especially in overcoming potential checks from Congress. In particular, the Commander-in-Chief role gives the president huge constitutional authority over military policy. Presidents have used this to act unilaterally, initiating military action without a congressional vote. Evidence of this can be seen in Obama's actions in Libya in 2011 as well as strikes in Iraq and Syria in the fight against Islamic State. With legal attempts to limit the president in this area failing, it appears that presidents can initiate military action at will.

The president's position as head of state and Chief Diplomat allows them, rather than Congress, to conduct foreign relations with other countries. International co-operation (or conflict) and formal agreements with other states in the form of treaties are all in the hands of the president. Obama and his team worked with countries such as Iran, China and Cuba without congressional leaders. Again the president appears to be the driving force in these aspects of foreign policy.

Presidents can use executive agreements to bypass traditional constitutional restrictions. In terms of foreign policy, presidents can ignore the requirement for Senate ratification of treaties, often with much anger from Congress. Presidents are, therefore, in a powerful position to achieve foreign policy goals.

Presidents can set the foreign policy agenda for decades

The president has the ability to set the agenda of foreign policy. The president performs this role mainly through set-piece speeches, notably the inaugural address or the State of the Union Address. President Kennedy, in his inaugural address in 1961, promised that America would ‘pay any price, bear any burden, meet any hardship, support any friend, oppose any foe in order to ensure the survival and success of liberty’. Although this set the agenda which led the USA into the Vietnam War he was following an agenda set by Harry Truman in 1948 when he set out on a path to contain communism. (The Truman Doctrine) GW Bush set the war on Terror agenda in 2001 which continued under his successor- although in a more uncertain manner under Trump. When Bush described an ‘axis of evil’ in his 2002 State of the Union Address he announced a new foreign policy doctrine — the Bush Doctrine

Although in his inaugural address on 20 January 2009, Barack Obama clearly set a different tone when he announced that America would return to a reliance on ‘soft power’ — what he described as ‘the ability to get what you want by attraction rather than coercion’. He was later compelled by the legacy of the War on Terror to 'surge' more troops into Afghanistan.

Trump's 'America First' agenda was less coherent but did result in a significant withdrawal of troops from Afghanistan but also missile attacks on Syria and the assassination of Qasem Soleimani as well as economic sactions against Iran.



· Presidential limits Congress holds a number of important constitutional powers that can restrict the president. Firstly the Constitution gives Congress the power to declare war — so there is an apparent constitutional ambiguity, which has led to a major constitutional dispute. Who has the right to initiate military action — president or Congress? In practice, presidents have committed military action without a congressional vote. On the other hand, there are instances when presidents have deferred to congressional authority by putting proposed attacks to a vote of both legislative chambers. This was the case with the Iraq war in 2003 when President George W. Bush requested and was given approval for military action. Congress tried to clarify the situation and assert its constitutional control in 1973, passing the War Powers Resolution, which arguably further restricts the president.


In order to clarify presidential congressional relations and to stop Nixon continuing the war in Vietnam, Laos and Cambodia, Congress passed the war powers resolution in 1973. This became The War Powers Act 1973


War Powers Act 1973 after Nixon's veto was overturned. The Act stated the president can only commit troops in what it describes as 'hostilities' abroad with congressional approval unless there is a national emergency. Congress has the right to withdraw troops, and the president must withdraw troops after 60 days of notifying Congress of the start of hostilities if Congress has not voted to approve military action. Clinton was forced to withdraw troops from Somalia (in a military intervention initiated by the previous President George H.W. Bush, to prevent genocide in a brutal civil war). Congressional pressure from both parties ended US involvement in 1994.

However, the War Powers Act has been largely unsuccessful in preventing presidential action. Presidents have asserted that it has no constitutional authority and restricts the president's constitutional duties. Some have argued that the Act itself means that Congress has ceded ground to the president compared to the intentions of the Founding Fathers, allowing the president 60 days to complete short-term military action without the need to consult Congress. There have also been cases of military action where presidents (and their lawyers) have stated that the War Powers Act does not apply. To the dismay of congressional leaders, Obama denied that his Libya actions could be limited by the Act. The White House sent a 38-page letter to Congress explaining why the Libya actions did not cover the sort of 'hostilities' referred to in the Act, stating: 'US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve US ground troops.' Congress also has funding power, which it can use to control military action. By refusing to fund (or even defunding), Congress could prevent action abroad. When Clinton took executive action in Bosnia despite protests from Congress, the House voted to withdraw funding for the conflict in 1995, a measure that was only narrowly defeated.

Finally the Senate has the power to ratify treaties, which can restrict presidential goals. In 1999 the Senate easily defeated the Comprehensive Test Ban Treaty on nuclear weapons, with Clinton failing to get the two-thirds of votes needed. A UN disability-rights treaty was also rejected by the Senate in 2012, despite Obama signing the treaty in 2009 and campaigning heavily for it.


· Presidential advantages

The president, with a national mandate, is arguably best placed to make decisions for the whole US. As the only nationally elected body, the presidency has more authority than individual members of Congress. As a result of this and of the president's constitutional prowess, US citizens tend to look to the president, not Congress, for foreign-policy initiatives. Congress is, therefore, arguably a more passive institution in this area and at times defers to the president. This might be seen in former Speaker John Boehner's response to Obama's campaign to overthrow Libyan leader Muammar Qadhafi in 2011.

Boehner wrote a strongly worded letter to Obama asking him to answer key questions, stating: `I respect your authority as Commander in Chief and support our troops as they carry out their mission.' This is clearly not a significant attempt to invoke constitutional control over these actions, although later Boehner did propose a resolution to end US involvement.

When Congressional leaders have attempted to take control of foreign policy they have often received widespread criticism for usurping the traditional roles of the president. House Speaker Nancy Pelosi was strongly criticised for her decision to visit President Assad in Syria in 2007. Speaker John Boehner's decision to invite Israeli Prime Minister Netanyahu to speak before a joint session of Congress was seen by many as overstepping his authority, with criticism even from some US Jewish lobby groups.

· Presidential limits

While Congress has traditionally been seen as more concerned with parochial issues (local) which are of more concern to the constitutents- particularly in the House which faces election every two year, this does not mean Congress will not be influenced by popuar opposition to military action. Because Congress is also directly elected it has a legitimate right to determine US foreign policy on behalf of US citizens. Congress has a collective national mandate but, more importantly, the separation of powers encourages individual members of Congress to respond to constituency views. This can be seen in the Democrat attempts to end the Iraq War after the mid-term election of 2006, in which Nancy Pelosi and Harry Reid created legislation that gave a timeline for troop withdrawal. Far from being inactive, Congress can and will challenge presidential policy. This is likely to be particularly in evidence under situations of divided government, where the president faces a hostile majority in Congress. Critics of the Two Presidencies Thesis point out that popular support for isolation in the 1940s and opposition to the Vietnam war both resulted in Congressional limits on presidential action.

Practical

· Presidential advantages

It can be argued that changes in practical considerations have led to a huge surge in the president's control of military policy in recent years. Changes in technology have fundamentally altered the power relationship between president and Congress. As war has become faster and more deadly, in a way that was unimaginable at the start of the 20th century, the public and Congress have put more faith in presidential decision-making.

Nuclear weapons, fighter jets, drone strikes, satellites and computer technology all require decisions to be made with greater speed, secrecy and expertise. The office of the presidency is far more suited to these requirements than Congress. The rise of the EXOP, and especially the National Security Council, gives the president a key advantage over Congress: the president holds critical information that is classified. Congress is often in a position where it has to trust the president. This can be seen with the Iraq war in 2003, in which Bush sought congressional approval while telling them of the imminent dangers of Saddam Hussein's use of 'weapons of mass destruction'. Many members of Congress, including Senator Hillary Clinton, were extremely sceptical of the case for war, but still voted for it.

• Presidential limits

While the president certainly has the freedom to respond to immediate threats and take secret action where public debate would not make se se the president can not always claim the need for speed and secrecy in all cases. Attacks on Libya, Syria, Bosnia or Somalia could be placed in this category, where it is arguably militarily acceptable to consult Congress since there was no immediate threat to the USA. Also when making treaties or trade deals. Furthermore, Congress has its own expertise in foreign affairs, which helps it to question the authority of the president. The Senate foreign relations committee has included many senators with huge experience of foreign policy, such as Joe Biden and John Kerry, who arguably had greater knowledge than the presidents they were checking. Closed sessions of Congress also allow congressional committees to receive sensitive information in which they can challenge executive action. Committees such as the House Intelligence Committee often have such closed sessions.

Evidence which suggests that the president has come to dominate foreign policy includes:

• The Supreme Court in US v Curtiss-Wright, establishing the principle of executive supremacy, and the subsequent reluctance of the courts to take up cases involving foreign policy. The Supreme Court has largely remained silent on waterboarding, the indefinite detention of prisoners and the use of extraordinary rendition.

Presidents have the role of chief diplomat -The use of executive agreements to circumvent the need for Senate approval of treaties- The Iran deal over the development of nuclear weapons 2015. Obama's use of Executive orders and agreements to improve relations with Cuba- despite opposition in Congress. However, he can not end economic sanctions which were put in place by the Helms-Burton Act. Presidents attend international summits and conduct meetings with foreign governments. 2018 Trump decided to attend the Davos World Economic Forum- His status meant he captured the headlines and his comments were used to gauge the direction of American foreign policy.

• As Commander in Chief, the president is the only politician who can take swift military action to meet a 'clear and present danger'. The president's ability to take military action- Obama's use of Drone Strikes- or killing of Osama Bin Laden-• President Johnson’s use of the Gulf of Tonkin resolution to escalate the war in Vietnam • The massing of 500,000 troops in Saudi Arabia before President G.H. Bush sought a congressional vote on the first Gulf War. April 2017 Trump launches Cruise missiles against Syria

Presidents have access to more intelligence information provided by the CIA and NSA- They can also claim a degree of Executive privilege over secret information. It is therefore difficult to challenge the president's right to act on a 'clear and present danger. Bush used 'evidence' of Weapons of mass destruction to convince Congress and public opinion that an attack on Iraq was justified. 'The Patriot Act has given the President enhance powers of surveillance.

Evidence which suggests that Congress has a significant role includes:

The eventual refusal to continue funding brought the war in Vietnam to a close . This was one of the most prominent examples is the Foreign Assistance Act of 1974, which eliminated all military funding for the government of South Vietnam and thereby ended the Vietnam War. Other recent examples include limitations on military funding placed on Ronald Reagan by Congress, which led to the withdrawal of United States Marines from Lebanon.

The power of the purse in military affairs was famously subverted during the Iran-Contra scandal in the 1980s

Congress blocked Obama's plan to close Guantanamo

•In the aftermath of Vietnam, there have been a number of Congressional restrictions placed on the president-. the War Powers Act, The Case Act • The sanctions on South Africa passed over President Reagan’s veto in 1986. • The legislation passed by the Republican Congress despite presidential reluctance, e,g, the Helms-Burton Act 1995 and the Iraq Liberation Act 1997 ( Iraq Liberation Act of 1998 - Declares that it should be the policy of the United States to seek to remove the Saddam Hussein regime from power in Iraq and to replace it with a democratic government.)• The refusal to renew fast-track trade authority for President Clinton in 1994 and President G.W. Bush in 2007. • The rejection of the Comprehensive Test Ban Treaty in 1999. 2012 Convention on the Rights of Persons with Disabilities rejected by the Senate

2013 Congress rejected Obama's request for approval for air strikes on Syria.

However the War Powers Act has proved largely ineffective- since there are difficulties defining war, 60 day gives plenty of time for operations to be completed and the tendency to rally round the flag

• There have been attempts by congressional leaders to run an alternative foreign policy to the president’s, e.g. Nancy Pelosi’s visit to Syria in 2007.The invitation to Israel's PM-Netanyahu to address Congress. 2015. These will occur when the President is faced by a Congress in which his party does not have a majority. This will also mean a considerable increase in oversight of the president's foreign policy. After the Republicans lost control of both chambers in 2016

In the 114th, Congress (2015–2017) passed laws on topics ranging from electronic surveillance to North Korea sanctions to border security to wildlife trafficking. In one noteworthy instance, lawmakers overrode President Barack Obama’s veto to enact a law allowing victims of international terrorist attacks to sue foreign governments.

There are other restraints: • Public opinion The mood of isolationism after WW1 and– post-Vietnam, presidents have been cautious about committing ground troops to conflict, and policy may reflect an anticipation of an unfavourable public reaction. In 2013 Congress voted against the bombing of the Assad regime in Syria- after clear evidence that it has been using chemical weapons on civilians.

. • Federal bureaucracy – the two federal departments most concerned with foreign policy, Defense and State, will have their own agenda, which may be inconsistent with the president’s. The Pentagon has is subject to lobbying from the 'Military Industrial Complex' Additionally, the conflict between departments may hamper him. The State Department and Defence Department (Louis Bono 'Defence is from Mars. State is from Venus)

• Supreme Court – in a series of cases,- Rasul, Hamdi and Boumediene- the court ruled against G.W.Bush administration’s policy on the detention of terrorist suspects in Guantanamo.

SO who controls foreign policy- ? While the president certainly has the lead role in determining the direction of foreign policy he cannot be said to 'dominate'. Periods of Presidential dominance will be limited and to a great or lesser extent it will be an 'invitation to struggle'. Likewise, Congress does not dominate and does not have the lead in directing policy but will always have a significant influence which will wax and wane depending on a range of factors.