No presidential power is beyond Congress

By Kurt Couchman

Senate Foreign Relations Committee Chair Bob Corker (R-Tenn.) made a remarkable statement at a hearing last month, claiming, “Our nation must speak with one voice in diplomatic affairs, and under our Constitution, the President determines U.S. foreign policy.”

He can’t possibly believe that. After all, legislation to impose sanctions on North Korea, Iran, and Russia, despite President Trump’s desire for better relations with Moscow, came through the committee Sen. Corker chairs.

In fact, federal laws are full of provisions that require, authorize, discourage, or prohibit the president and other executive branch officials from taking or withholding action abroad. Reforming and updating many of those laws is the responsibility of the Senate Committee on Foreign Relations along with the House Committee on Foreign Affairs.

Looking to the Constitution, the president’s foreign policy powers are quite limited. He commands the armed forces (although only Congress can authorize war), can demand reports from executive branch officials including at the State and Defense departments, and he can pardon people for offenses against the United States. He can make treaties with other countries, but only if two-thirds of senators agree. He can appoint ambassadors and other officials, although some require Senate approval.

He can propose legislation to Congress but cannot force them to act. He can give Congress reports or require it to convene. He receives ambassadors and other public ministers, and he commissions all the officers of the United States. Otherwise the president is bound to “take Care that the Laws be faithfully executed.”

Some view these powers of the President and more as “inherent” and unlimited, unless the Constitution explicitly limits them, as with “advice and consent” for treaties. A Senate chair might even think that the gaps between these powers are large, perhaps even so vast that “the President determines foreign policy.”

That thinking is wrong.

The reason is the “necessary and proper” clause. Despite much abuse of the “elastic clause,” it is often ignored in its most important use: to make laws for carrying into execution “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” (emphasis added).

The president is an officer of the United States who oversees every department. Almost nothing is outside of Congress’ power to structure, condition, and limit.

Congress’ broad power over executive branch operations is a key reason that the House and the Senate are built differently, besides resolving the standoff between small and large states. It makes reaching a consensus more difficult, especially when the president opposes legislation, as President Nixon did when the War Powers Resolution was passed over his veto. This was intended to keep Congress from entirely dominating the executive and judicial branches.

Sen. Corker is right to observe that the nation must speak with one voice abroad. That doesn’t mean that Congress shouldn’t pass laws. It means only that Congress should leave the practice of diplomacy to executive branch officials, within the constraints and authorities provided by law. Nothing should stop members of Congress from talking to foreign officials, but they shouldn’t presume to speak as the voice of our nation.

Prudence is a greater limit to congressional powers than the Constitution. In many foreign policy situations, it serves the public interest to give executive branch officials broader discretion than is appropriate in domestic matters, as the Supreme Court recognized in United States v. Curtiss-Wright Export Corporation (1936).

Members are not out of practice in legislating in foreign affairs. Both committees have active hearing schedules and routinely produce legislation. In the Senate, treaties and nominations are processed regularly.

But are they focusing on the right things? Roughly 98 percent of spending in the latest State and Foreign Operations Appropriations Act lacked an active authorization. Even the “Administration of Foreign Affairs” account for core diplomatic and consular activities has not be authorized since fiscal year 2003. Small wonder that President Trump, President Obama, and President Bush have all discounted the State Department when Congress can’t be troubled to modernize or even reauthorize the agency.

The president and the rest of the executive branch play crucial roles in the conduct of foreign policy. Yet when it comes to understanding and acting on its own powers, Congress has been timid.

The desires of the American people are best heard through their elected representatives in Congress. The president’s “inherent” powers are much narrower than White House Legal Counsel typically claims and that Congress often pretends.

Chairman Corker and his House counterpart have less than a year before they retire. They would do the American people a great service to reinvigorate Congress’ role in foreign affairs. This involves not only updating programs for the modern world, but also righting the balance between legislative policy-making and those who carry it out.

Kurt Couchman is an economist and the vice president of public policy at Defense Priorities. He previously served as a policy expert in congressional offices, most recently as a legislative director for a Republican member of the House of Representatives. Follow him on Twitter @KurtCouchman.

This piece was originally published by The Hill on January 17, 2018. Read more HERE.