Implementing foreign policy has always been a serious issue, as evidenced both by today’s debates over free trade and the Iranian nuclear deal, as well as by conflicts with Britain and France in the earliest days of the Republic. Yet the way foreign policy is implemented and the people who control the process have radically changed over the past two centuries—and perhaps, not for the better. Regardless of the merits of agreements like the Iran deal, the constitutional issues behind the approval process are troubling, due to Congress’ relegation to a superficial role.
The White House and Congress have always sparred over who should have more control. Currently, the president’s authority is on the upswing, as exemplified by the increasing use of executive agreements and consequently, the erosion of the Senate’s authority to ratify treaties. This change has produced undesirable effects: not only has foreign policy power been increasingly concentrated in the executive office, but Congress’ ability to oversee and review the president’s actions has also been diminished. In other words, the executive branch has gained enough leverage to keep Congress in the dark. To prevent the White House from gaining too much power, Congress must be able to gain access to, understand, and evaluate the president’s plan for implementing foreign policy. If the negotiations involve making a change to domestic law, Congress must also be allowed to reject the changes they see as undesirable.
The framers of the Constitution clearly did not wish any branch of government to be the only voice in directing foreign policy. They delegated most of that authority to the executive branch, with a few reservations. Section 2 of Article II of the Constitution directs that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The Constitution also gives Congress alone the power to declare war and to “regulate Commerce with foreign Nations.” In this way, Congress retains a check upon the most drastic actions an executive could otherwise unilaterally take, that of making treaties and declaring war. The Senate was given an exclusive purpose: to carefully consider treaties and prevent the president from taking too much control. The high two-thirds majority required for ratifying a treaty showed that the framers did not want something so serious to be rammed through by half of the Senate, as is possible with ordinary legislation. Giving only the Senate the power to ratify was no accident either. Alexander Hamilton explained why he distrusted the House of Representatives: “Accurate and comprehensive knowledge of foreign politics…decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous.” To Hamilton, members of the House elected every two years by popular vote were capricious and unqualified to lead foreign policy compared to Senators, who at the time were appointed by state legislatures and thus shielded from ever-changing public opinion.
Tension has always existed between the White House and the Senate, but for a time the White House did give the Senate its due consideration on treaties, even controversial ones. Even though he knew his proposed treaty with Britain would be highly unpopular, John Jay, serving as ambassador to Britain under George Washington, submitted his treaty believing that the Senate had the authority to decide whether or not to ratify it. The Jay Treaty did subsequently pass, but without a vote to spare. Historian Robert Caro wrote in The Years of Lyndon Johnson: Master of the Senate that the Senate’s power reached its height in the late nineteenth and early twentieth centuries, owing to a string of weak presidents and the influence of powerful industrialists who manipulated the Senate to guard their own interests. The Senate expected presidents to follow its lead on foreign policy, and zealously guarded its power to ratify treaties. In 1919, Foreign Relations Committee chairman Henry Cabot Lodge was furious that President Wilson negotiated the Treaty of Versailles without any senatorial input. When Wilson refused to accept any of Lodge’s amendments, the powerful senator led the Senate to reject the treaty, and along with it, the League of Nations.
Today, treaties are rare compared to the nineteenth century. Presidents increasingly rely upon “executive agreements”—a mutual handshake with another foreign leader that does not require Senate ratification. Some executive agreements are classified as “congressional-executive agreements,” in which both houses of Congress can give or withhold their approval. On the other hand, “sole executive agreements” leave Congress out entirely. International law does not recognize a difference between executive agreements and treaties, and both are by default legally binding, though some executive agreements opt out of this condition. Proponents of executive agreements argue they bring “flexibility,” letting the president fill in the gaps. They argue that Congress has usually signalled what it wants in general, but does not have time to debate specifics, so that duty falls to the president. Critics disagree: they believe that "major international agreements" are too important, should never be approved by one person, and should thus remain treaties. Nevertheless, presidents have tired of dealing with intransigent legislators. An analysis by the University of Michigan found that executive agreements made up 94.3 percent of foreign pacts negotiated between 1939 and 1989, but only 52.9 percent of pacts negotiated a century earlier, from 1839 to 1889.
Furthermore, the president gets to choose whether to term negotiations “treaties” or “executive agreements,” so selections are made depending on political circumstances back at home. But while ratified treaties carry the binding force of U.S. law, executive agreements are flimsier. Even though an executive agreement may be legally binding in the eyes of foreign nations, the Constitution permits a president to undo an executive agreement as he or she wishes, which could easily happen when the White House switches parties. Theoretically, reneging on such an agreement could violate international law, but the United States has had a long history of ignoring what the international community wants. Executive agreements are being overused for huge, game-changing foreign policy decisions that should have been treaties. The ability to cancel a foreign policy pact should not rest in the hands of one person alone.
This brings us to the recent executive agreement—not a treaty—that President Obama negotiated with Iran. Originally, there was to be no Congressional input on the deal at all. This changed when Congress passed a law giving itself the power to review and potentially reject the deal. As the bill passed 98-1 in the Senate and unanimously in the House, the president was powerless to stop it. But this doesn’t mean Congress will be able to exercise its authority to disapprove the deal. Many Congressional Democrats were willing to defy Obama by voting to review the Iran deal, but they may not be willing to deal him a huge defeat by voting to actually overturn it when Congress’ time for review expires. This means that Obama can safely veto a resolution of disapproval. The Iran nuclear deal exposes the absurdity of this legal about-face. A treaty requires a two-thirds vote of the Senate for approval, whereas if Obama can persuade one-third of either the House or Senate to sustain his veto, the Iran deal will be approved by default.
The most concerning aspect of Congress’ eroding role in overseeing foreign policy is the executive branch’s refusal to give it meaningful oversight. Ordinary bills are debated for many weeks or months and can be amended throughout the legislative process. The text of regular legislation is quickly made available for members of Congress, their staff, experts, and the general public to scrutinize. Congress begrudgingly granted President Obama fast track authority to negotiate a trade deal with several Asian-Pacific countries. Congress will give the deal an expedited review upon receiving it, with no amendments or filibusters. Yet senators and representatives were barely allowed to view the proposed trade deal before giving the president the future power to ram the deal, once finalized, through Congress. Senators who read the top secret deal were not allowed to discuss it with legal experts or the public. Worse, they were not allowed to take notes away from the reading. By passing fast track, Congress ceded nearly all of its leverage to meaningfully review this piece of foreign policy. Senators and representatives tried to control the final outcome: the approved fast track law lists specific and overall directives for Obama’s trade negotiators to follow. However, if legislators were unable to transcribe, let alone understand the trade deal’s draft, it must have been very difficult to choose which directives to issue in the first place. Chances are that when the Trans-Pacific Partnership (TPP) is made public, Congress will be very unhappy with many of its provisions. TPP could easily become a trojan horse for unpopular provisions therein, such as investor-state dispute settlement, laws allowing corporations to sue the federal and state governments in an international court. But by relinquishing the power to amend TPP, Congress will be too politically intimidated to reject the whole package.
This isn’t the only example of President Obama cloaking his initiatives in secrecy, hoping that Congress quietly cooperates. During his first term, the president’s Anti-Counterfeiting Trade Agreement (ACTA) also came under fire. The purpose of ACTA was to suppress copyright piracy, though U.S. trade negotiators backed down on some of their more draconian proposals. Like the Trans-Pacific Partnership, it was crafted behind closed doors. Worse, it was deemed a sole executive agreement, so Congress could not even vote on it.
But President Obama is not the only president to have held Congress to such secrecy. When Congress wanted to review NSA wiretaps, briefings under the Bush administration had the same rules—with no outside discussion with experts permitted, they could only rely upon the White House’s own explanation. This pattern persists because Congress has lost its source of leverage, namely, the Senate’s two-thirds ratification of treaties. Overuse of executive agreements, especially sole executive agreements, allows the president to erode Congressional oversight authority, and history shows that concentrating foreign policy power in either body, the Gilded Age Senate or the twenty-first century White House, gives rise to an unhealthy level of secrecy. Regardless of whether the president is right or wrong when it comes to making foreign policy, the American people deserve a degree of transparency. We need an equilibrium between the legislative and executive branches. Congress must be able to exercise “advice and consent.”
Make no mistake: the White House should have the authority to set foreign policy and Congress should not try to micromanage the president. Just last month, the Supreme Court disallowed an attempt by Congress to wrest away this power. In the case of Zivotofsky v. Kerry, the court overturned a law which said that a U.S. passport holder born in the disputed city of Jerusalem must have Israel listed as his or her country of birth if he or she asked the State Department to do so. In the court’s eyes, the authority to pick a position on territorial disputes belongs only to the executive branch—Congress overstepped its powers by trying to tie the president’s hands. The Senate’s rejection of the Treaty of Versailles in 1920 and an international treaty to protect people with disabilities just three years ago shows the legislative branch does not always get it right. But at the same time, the executive branch should not be sidelining Congress by replacing almost every treaty with an executive agreement. The framers of the Constitution intended for Congress to be a check on the executive branch. That delicate balance is now dangerously close to falling apart.
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