Post #70 – When It Comes to Foreign Policy, Obama Has the Upper Hand

The President and quite a few members of Congress are at a standoff over two important issues of foreign-policy process.  Many in Congress, from both parties, dislike his proposal for Congressional authorization to fight the Islamic State.  Others dislike his negotiations with Iran which, if successful, would end in an executive agreement rather than a treaty.  In the case of the authorization, critics (mostly Republicans) either want a greater US investment in the struggle against the IS, especially in Syria, or (mostly Democrats) are suspicious that the authorization’s limited time frame for US involvement (three years and no “enduring offensive ground combat operations”) will not really bind the next administration.  As for the Iran agreement, forty-seven Republican senators made their position apparent with their unprecedented letter to Iran’s leaders warning that any agreement the Obama administration might reach would have little real meaning, since they have the ability to undermine it.  These senators demand a treaty, which of course they have the votes to scuttle, though their real game is to prevent any agreement at all.  Along with some hardline Democrats, the Republicans demand more sanctions on Iran to prevent it from going nuclear.

From a peace and conflict resolution perspective, how might we view these debates?

The authorization being sought by the administration, while intended as a compromise between endless US involvement and limited intervention, is—as some critics maintain—something of a subterfuge.  We’ve had enough experience with the exercise of presidential war powers to know that when presidents face strategic failure abroad, “national security” consistently wins out and limits on their power are ignored.  No president is going to walk away from the fight against IS, in which the US is already deeply invested, short of at least the appearance of victory.  The Obama administration has said as much by insisting, just as George W. Bush did, that the president really doesn’t need a new authorization from Congress.

All that Obama really wants is an update of the authorization he inherited after 9/11.  But whether he gets it or not, he will still carry around the same blank check Bush got to wage war against terrorism anywhere and in any form.  What Congress should authorize is a very tightly worded law that terminates all US military activities other than training within 18 months, removes any possibility of reentry into the Middle East theater (including Libya, Iraq, and Afghanistan), and calls for using US diplomatic and economic resources to promote a Middle East coalition (which would include Iran) against the IS.

On Iran, the Republican senators made a peevish and amateurish move by writing to the ayatollah.  They became the mirror image of the hardliners in Tehran, inserting themselves into the negotiations in a brazen attempt to disrupt what might be a breakthrough with Iran. They should have addressed the President with something like the following:

Mr. President, as a former US senator you are well aware of the importance of consulting Congress on major foreign-policy issues.  With Iran, we believe the issues are so important as to warrant a treaty which, under our constitution, requires the “advice and consent” of the Senate by a two-thirds vote. Submitting a treaty to the Senate affords full public debate and avoids the harmful consequences of secret diplomacy.  An executive agreement is an end-run around our democratic process, and in this case, where negotiations with Iran affect our friends and allies in the Middle East, we need a full-fledged debate and vote.

Even though the Republican senators really aren’t all that interested in the constitutional issue, they do have a point in raising it.  As readers know, I fully support the nuclear talks with Iran and hope it will lead to deeper engagement.  But the President’s insistence on an executive agreement rather than a treaty is part of a disturbing and longstanding pattern of presidential avoidance of Congressional participation in the foreign policymaking process.  The Vietnam War set that pattern in concrete: use of executive agreements increased dramatically, Congress had little to do but pony up money to support the war, and the “imperial presidency” became part of the language.  That’s why the War Powers Act became law, though it has not proven able to seriously weaken presidential war making power.

And there is where the two cases—the Middle East authorization and the Iran agreement—come together.  For both, the President has the upper hand, by precedent and by the very nature of the foreign-policy process.  He can decide to ask for additional war-making authority from Congress, or not.  He can ask the Senate to “advise and consent,” or not.  As military and diplomatic commander-in-chief, he can deploy his constitutional authority—or not.  It would be no different if a Republican were president, as Bush I and Bush II showed in Iraq and Afghanistan.  Not a pleasant conclusion.

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One Comment

  1. Mel, re your last paragraph: the Foreign Affairs Manual (FAM) issued by the State Department spells out the several procedures available for the conclusion of agreements such as those discussed in your post. 11 FAM 723.2-2(C) titled Agreements Pursuant to the Constitutional Authority of the President is directly relevant to your point that “[A]s military and diplomatic commander-in-chief, he [the President] can deploy his constitutional authority…” Section 723.2-2(C), specifies, however that Congress can block the President’s exercise of power. It states, in relevant part: “The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority” (emphasis provided.) I suspect a more judicious approach to the “peevish and amateurish” missive to the ayatollah might have been to enact a piece of legislation, but then again, how much fun would that have been?

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