Who runs foreign policy, the president or Congress?

checks and balances 

Separation of powers 

The President and Congress 

How effectively have recent presidents achieved their aims? 

The relationship between the president and the Supreme Court 

 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-

·    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.

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. 

Funding for Ukraine: October 2023 Congress rejected  further funding for Ukraine in order to avert a government shutdown. President Biden sought a separate deal for Ukraine funding, but he was relying on support from Speaker Kevin McCarthy, who was however removed from office by hardline Republicans for agreeing to a budget deal. 

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.