What 115th Congress Needs to Do

By Daniel DePetris

With the election now over, it’s time to get to work.

While much of the coverage is understandably devoted to the agenda that President-elect Donald Trump would like to accomplish, the 115th Congress also has a fresh start to push through its own legislative priorities. At the top of that list is getting back into the game on U.S. foreign policy and participating in the process as a full and equal branch of the U.S. Government.

Over the past 15 years, the Executive branch has been able to grab an ever-greater amount of power on issues pertaining to foreign policy and national security. Although the President of the United States is indeed the Commander-in-Chief and largely sets the direction of America’s policy around the world, Congress also has an indispensible role in the formation and implementation of the country’s foreign policy under the U.S. Constitution.

Recent history has seen a Congress overly deferential to the Executive branch, but the next Congress has a perfect opportunity to reform the process. Here are three things the incoming class of lawmakers can do to increase some of their leverage:

1) Debate War and Peace: The Constitution couldn’t be clearer on which branch of government has the ultimate authority on matters of war and peace. Article I, Section 8 provides Congress with the power to declare war or authorize the Commander-in-Chief to use U.S. military force. Unfortunately, members of Congress have interpreted this clause over the past decade to be an optional function rather than the duty that the framers of the Constitution intended it to be.  The counter-ISIL effort, a war that has expanded beyond the Iraq and Syria theater, has been based on questionable legal authority under the 2001 Authorization for the Use of Military Force (AUMF), a document that permitted the president to use military force against the Al-Qaeda network responsible for the 9/11 attacks. 

The fact that the Obama administration has used the 2001 AUMF as statutory authority for the counter-ISIS campaign, despite ISIS not even being in existence at the time the resolution was passed, has been disregarded if not ignored by many lawmakers. It’s essential for our Republic that the legislative branch take back its power -- lawmakers must finally craft a new war resolution pertaining exclusively to the current conflict against the Islamic State.

2) Pass a State Department Authorization Bill: The Congress has passed an authorization act for the Pentagon every single year for over a half-century.  Indeed, the National Defense Authorization Act (NDAA) is one of the only pieces of legislation that Republicans and Democrats have been able to cooperate on every single year.  Not so for the State Department; the last time Congress passed an authorization package, Saddam Hussein was still the president of Iraq, Osama bin-Laden was still alive, and Barack Obama was a junior-level Senator from Illinois. 

The Senate Foreign Relations Committee recognizes the problem and has attempted to break this precedent. Over the past two years, the committee has passed a version of the State Department authorization act to the full Senate, only for the Senate to run out of time or fail to schedule a vote on it.  This is incredibly unfortunate, because without an authorization bill, Congress is unable to dictate terms and require reports that would make the State Department more transparent and accountable to the American people. 

Like its counterpart at the Pentagon, an authorization bill for the State Department would allow Congress to place conditions on the career public officials running the nation’s foreign policy, including through the mandating of reports on how the U.S. allocates federal dollars at the United Nations. Passing such a bill into law would open up the process, provide more clarity to what U.S. foreign policy officials are doing, and ensure that any concerns that Congress may have are addressed during the year.

3) Monitor Select Areas of Foreign Policy through Select or Special Commissions: With the exception of holding the purse strings for federal government operations, the most effective power that Congress has is overseeing the activities of federal departments. Unfortunately, lawmakers have increasingly used congressional hearings as a way to take political potshots at administration officials rather than providing legitimate oversight, probing whether policies are actually working, and determining whether allocated funds have been spent wisely.

The establishment of bipartisan commissions on specific foreign policy issues would go a long way towards re-establishing its critical oversight role.  Hidden from the cameras, a select commission would allow lawmakers to monitor progress on diplomatic relations between the United States and other nations, ensure that multilateral agreements like the Iranian nuclear deal are being implemented in strict accordance with the terms of the accord, and provide executive branch officials and fellow members of Congress with assessments to be reviewed and legislative fixes to be acted upon.

These three items may not seem like much, but they could potentially be transformational for a Congress that has outsourced foreign policy to the executive and has been a marginal player for far too long.  The balance of power between the executive and legislative branches is out of whack, and it will be the job of the next Congress to bring it back in balance.

Daniel DePetris is a fellow at Defense Priorities. 

This piece was originally published by The Daily Caller on November 18, 2016. Read more HERE