Congress must be consistent in application of treaty, war powers

By Robert Moore

President Trump’s meeting with North Korean Supreme Leader Kim Jong-un and the tentative agreement they recently announced caused a stir throughout the global halls of power, including the United States Senate. Leaders from both parties expressed skepticism about any nuclear deal negotiated between the two leaders and declared their intention to review and vote on whatever agreement is finalized. Others rushed to the Senate Floor to file amendments to the annual defense bill to restrict the President’s authority to remove American troops from the Korean Peninsula.

The Senate’s renewed interest in foreign policy and military activities is not only necessary, but refreshing given its recent history of affording the executive branch broad latitude on such issues. However, the inconsistency in which Congress chooses to carry out its constitutionally mandated responsibilities—and the reasons members of Congress decide to do so—is troublesome.

The relationship between the legislative and executive branches over their shared powers on issues of war and agreements with foreign nations has been difficult since the ink dried on the Constitution. The document makes the President the Commander-in-Chief of the armed forces while giving Congress the authority to declare war. Article II gives the executive the power to make treaties with foreign nations, provided that the agreements receive consent from two-thirds of the Senate.  

While confusing and complicated, this conflict was intentionally designed in the best interests of our democracy. Matters of war and peace are perhaps the most difficult and risky endeavors for a nation. The framers of the Constitution understood the need for expediency, secrecy, and clarity of command from the executive branch, while using Congress as a bulwark against presidential overreach and establishing consistency in governance as presidential terms cycled. 

James Wilson, a member of the Continental Congress from Pennsylvania and drafter of the Constitution, stated, “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

Regarding treaties, Alexander Hamilton wrote in The Federalist 75, “The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.”

These statements, and many others made at that time, show that this shared-power structure was the subject of considerable deliberation and calculation, and that the legislative branch was expected to play a significant role in our foreign affairs.

Yet Congress has largely relinquished its war and treaty powers to the executive branch. Since 1941, Congress has not exercised its authority to declare war, instead relying on broad authorizations for the use of military force (AUMFs) or, more frequently, silently following the executive’s decisions with only superficial oversight.

Some of this is caused by congressional careerism and an aversion to going on the record on difficult issues. Voting on authorizing military force or declaring war can be politically damaging, as many members of Congress and presidential candidates found out in 2006 and 2008 over Iraq. Politicians feel safer giving latitude to the executive branch to act, then can sit back and criticize if it becomes unpopular.

At other times, Congressional leaders become concerned that executive actions they support will be jeopardized if Congress actually takes action. President Obama’s supporters strongly opposed bringing agreements like the Joint Comprehensive Plan of Action with Iran (JCPOA) and the Paris climate agreement before a hostile Senate that may have rejected them. Similarly, hawkish legislators have largely resisted necessary efforts to reform the 2001 global terrorism AUMF because it could weaken the programs and authorities already in use.

When it comes to North Korean denuclearization, members of Congress from both sides of the aisle distrust Kim Jong-un and President Trump to create a successful agreement, while others believe the United States should not stop short of removing Jong-un from power. Both are valid reasons for members to have concerns, but are not the justifications they should cite for carrying out their duties.

Whether Republican or Democrat, popular or unpopular, our republic operates as intended when Congress exercises its constitutional powers on wars and treaties as purposed. The inherent political conflict and risks associated in doing so are an integral part of our system of representative government. 

Robert is a public policy advisor at Defense Priorities. Having spent nearly a decade working defense and foreign policy issues on Capitol Hill, Robert has extensive knowledge of, and experience with, the policy-making process, including how Congress shapes U.S. national security. He most recently served as the lead staffer for Sen. Mike Lee on the Senate Armed Services Committee. He also advised Sen. Lee on matters of foreign relations, intelligence, homeland security, and veterans affairs. He previously worked as part of Sen. Jim DeMint's national security team.

This piece was originally published by National Review on June 26, 2018. Read more HERE.