Why is Congress Losing Foreign Policymaking Power?

by Luke Grabowski

Following in the footsteps of his many predecessors, President Donald Trump launched an unconstitutional missile strike in Syria – a declaration of war without congressional consultation or approval. The response to such transgressions prompted Garrett Epps of The Atlantic to remark on “the need to keep turning the conversation back to constitutional questions that people are sick of hearing about – and, even worse, have tacitly agreed to consider irrelevant.” By “people,” Epps is referring to the public and, more importantly, stakeholders who have the responsibility and power to interject, i.e. Congress.

 

The delegation of foreign policymaking power between the president’s executive office and Congress has experienced major shifts in post-WWII administrations, a trend sparked by Franklin D. Roosevelt. Since then, presidents have attained a wide range of foreign policy instruments that theoretically belong to the legislative branch. However, lawmakers themselves have allowed their power to erode, a phenomenon brought on by partisan infighting and the negligence of structural dynamics between branches.

 

The years after 9/11 provide an essential case study of congressional abdication of its foreign policy role. As former Senator Jim Webb writes: “Powers quickly shifted to the presidency as the call went up for centralized decision making in a traumatized nation where quick, decisive action was considered necessary.” The perception of time sensitivity – the need to act immediately and decisively – made the deliberate process of congressional decision-making an easy target. A united America was ready to retaliate and forego the checks usually provided by legislators.

 

That seemingly innocuous abdication of power at a critical time in US politics set off a process of presidential unilateralism in foreign policy, especially abundant in the post-9/11 era. In 2008, for instance, the Bush administration signed a sweeping document titled the Strategic Framework Agreement following “secret negotiations with the Iraqi government.” Congressional leaders were excluded from the policymaking process, but importantly, they did not make much effort to participate in the first place.

 

President Barack Obama continued a similar trend of circumvention. His 2011 military intervention in Libya violated the War Powers Act and engaged the US armed forces in a complex quagmire – all while keeping Congress out of the loop. Unfortunately, legislators from either party failed to call much attention to Obama’s dangerous precedent-affirming and –setting actions. In these two cases and many others, the gift of foreign policy influence appeared largely consensual.

 

The decades-long process of congressional abdication can be traced back to two overarching catalysts: (1) partisan polarization in the legislature and (2) the structural differences between the two branches that create a unique logic of power dynamics.

 

Much has been written about the dismal partisan fissures of recent decades, perhaps best embodied in Congress’s low legislative output. In foreign policymaking, partisanship has more indirect consequences. If the same party occupies the White House and holds a majority in either chamber of Congress (more so the Senate), it is likely that lawmakers will sit back and allow the President to take the lead. Although this may seem natural, given the likelihood of consensus between members of the same party, the bigger implication is the eagerness to take a backseat. In cases where the legislative majority is not aligned with the president, the opposition may be more vocal – but policy responses often remain scant.

 

Foreign policy, perhaps more than any other policy area, requires a careful, multilateral process that considers the interests of a multitude of foreign actors, national security impact, and the long-term reverberations on world order and peace. Handing over the reins of power to the executive signals a lack of concern for the cultivation of such a process.

 

The structure of each branch – and Congress’s lack of awareness to its implications – is perhaps even more complicit in shifting the balance of power. Simply put, the structure of the executive branch makes accruement of power more fluid and sticky. Although agendas, executive orders, memoranda, etc. can be undone by successive presidents (e.g. Trump’s dismantling of Obama-era policies), presidential precedents have stuck around as instruments of executive power. The executive as a vehicle of power can be more easily isolated from the partisan divides between different presidents. This enables the executive to mostly avoid the pitfalls of polarization while continually building its toolkit of foreign policymaking powers.

 

In Congress, the institutional structure is precariously pegged to the partisan preferences of the day, i.e. the majority party (in committees and on the floor). This threatens the continuity Congress has in its foreign policy engagement. By putting partisan agendas above the Congress’s constitutional role, legislators enable the executive to assume a unilateral leadership role in the formation and conduct of foreign policy.

 

To be sure, foreign policy is hardly a non-partisan issue, but successive presidents with different doctrines have seamlessly taken on new powers to use in their own agenda. Hence, the president is less encumbered by the partisan balance in Congress. Congress, meanwhile, is more polarized across all issues, but is also more sensitive to the party of the president in determining whether and how much to act. Foreign policy is not inherently partisan, but inter-branch dynamics illuminate how partisanship in Congress compromises its responsibilities as a branch.

 

Congressional abdication of its role in foreign policy, if persistent, has precarious implications for America’s leadership in global affairs. Beyond individual inadequacies as a global leader, Donald Trump exemplifies the cumulative effect of letting the executive run wild in the foreign policy scape. Despite internal turmoil in the White House, Trump has sucked up power even in his own administration, for instance through the proposed budget cuts to the Department of State. Even so, his executive orders and memoranda, vehicles of unilateral presidential power, have been largely accepted by Congress – an indication of the extent of the shift.

 

The constitutional separation of powers in foreign policymaking would suggest that the executive’s sphere of influence is strictly limited. Yet, Congress has not only allowed for the erosion of its powers; it has handed them to the executive, often knowingly. What results is a murky constitutional crisis and the breakdown of checks and balances. This imbalance does not bode well in the context of America’s past imperialist adventures in Latin America and elsewhere. Concentrating power in the hands of a quasi-authoritarian leader like Donald Trump, whose disregard for legislative protocol and his own advisors’ input furthers thrusts autocratic tendencies into the Oval Office, makes unilateral intervention and democracy-building more probable.

 

Even at a time of historically high polarization, Congress is structurally better equipped to process streams of information and intelligence, and come to prudent plans of action. Legislators with specialized expertise rarely face pressure from constituents in this domain and have no executive to guide and oversee their agenda. They prefer, however, to stomp on these advantages with short-term partisan logic, as most recently apparent in the debate on intervention in the Assad regime. Lindsey Graham, Chairman of the Senate Subcommittee on State, Foreign Operations, and Related Programs, supported Trump’s recent flirtation with direct military intervention – despite the Senate declining to authorize war in besieged Syria. When the majority of lawmakers bind themselves to their partisan peer in the White House, power inevitably leaks out of Congress.

 

The Trump administration can and should be criticized for certain foreign policy stances, including the defunding of the State Department, but having an uninformed and impulsive leader at the helm of foreign policymaking would be much less dangerous if: (1) Partisan loyalty did not override the core constitutional unity of Congress as a branch; and (2) If Congress held presidents accountable for the enormous destabilizing effect of precedent-setting or precedent-affirming executive actions.

 

Fixing polarization at large might prove a near-impossible task, but the main problem here is more fundamental – a power imbalance between branches. Leaders from both parties must regain a pre-9/11 level of control and oversight in foreign policy.

 

 

Following in the footsteps of his many predecessors, President Donald Trump launched an unconstitutional missile strike in Syria – a declaration of war without congressional consultation or approval. The response to such transgressions prompted Garrett Epps of The Atlantic to remark on “the need to keep turning the conversation back to constitutional questions that people are sick of hearing about – and, even worse, have tacitly agreed to consider irrelevant.” By “people,” Epps is referring to the public and, more importantly, stakeholders who have the responsibility and power to interject, i.e. Congress.

The delegation of foreign policymaking power between the president’s executive office and Congress has experienced major shifts in post-WWII administrations, a trend sparked by Franklin D. Roosevelt. Since then, presidents have attained a wide range of foreign policy instruments that theoretically belong to the legislative branch. However, lawmakers themselves have allowed their power to erode, a phenomenon brought on by partisan infighting and the negligence of structural dynamics between branches.

The years after 9/11 provide an essential case study of congressional abdication of its foreign policy role. As former Senator Jim Webb writes: “Powers quickly shifted to the presidency as the call went up for centralized decision making in a traumatized nation where quick, decisive action was considered necessary.” The perception of time sensitivity – the need to act immediately and decisively – made the deliberate process of congressional decision-making an easy target. A united America was ready to retaliate and forego the checks usually provided by legislators.

That seemingly innocuous abdication of power at a critical time in US politics set off a process of presidential unilateralism in foreign policy, especially abundant in the post-9/11 era. In 2008, for instance, the Bush administration signed a sweeping document titled the Strategic Framework Agreement following “secret negotiations with the Iraqi government.” Congressional leaders were excluded from the policymaking process, but importantly, they did not make much effort to participate in the first place.

President Barack Obama continued a similar trend of circumvention. His 2011 military intervention in Libya violated the War Powers Act and engaged the US armed forces in a complex quagmire – all while keeping Congress out of the loop. Unfortunately, legislators from either party failed to call much attention to Obama’s dangerous precedent-affirming and –setting actions. In these two cases and many others, the gift of foreign policy influence appeared largely consensual.

The decades-long process of congressional abdication can be traced back to two overarching catalysts: (1) partisan polarization in the legislature and (2) the structural differences between the two branches that create a unique logic of power dynamics.

Much has been written about the dismal partisan fissures of recent decades, perhaps best embodied in Congress’s low legislative output. In foreign policymaking, partisanship has more indirect consequences. If the same party occupies the White House and holds a majority in either chamber of Congress (more so the Senate), it is likely that lawmakers will sit back and allow the President to take the lead. Although this may seem natural, given the likelihood of consensus between members of the same party, the bigger implication is the eagerness to take a backseat. In cases where the legislative majority is not aligned with the president, the opposition may be more vocal – but policy responses often remain scant.

Foreign policy, perhaps more than any other policy area, requires a careful, multilateral process that considers the interests of a multitude of foreign actors, national security impact, and the long-term reverberations on world order and peace. Handing over the reins of power to the executive signals a lack of concern for the cultivation of such a process.

The structure of each branch – and Congress’s lack of awareness to its implications – is perhaps even more complicit in shifting the balance of power. Simply put, the structure of the executive branch makes accruement of power more fluid and sticky. Although agendas, executive orders, memoranda, etc. can be undone by successive presidents (e.g. Trump’s dismantling of Obama-era policies), presidential precedents have stuck around as instruments of executive power. The executive as a vehicle of power can be more easily isolated from the partisan divides between different presidents. This enables the executive to mostly avoid the pitfalls of polarization while continually building its toolkit of foreign policymaking powers.

In Congress, the institutional structure is precariously pegged to the partisan preferences of the day, i.e. the majority party (in committees and on the floor). This threatens the continuity Congress has in its foreign policy engagement. By putting partisan agendas above the Congress’s constitutional role, legislators enable the executive to assume a unilateral leadership role in the formation and conduct of foreign policy.

To be sure, foreign policy is hardly a non-partisan issue, but successive presidents with different doctrines have seamlessly taken on new powers to use in their own agenda. Hence, the president is less encumbered by the partisan balance in Congress. Congress, meanwhile, is more polarized across all issues, but is also more sensitive to the party of the president in determining whether and how much to act. Foreign policy is not inherently partisan, but inter-branch dynamics illuminate how partisanship in Congress compromises its responsibilities as a branch.

Congressional abdication of its role in foreign policy, if persistent, has precarious implications for America’s leadership in global affairs. Beyond individual inadequacies as a global leader, Donald Trump exemplifies the cumulative effect of letting the executive run wild in the foreign policy world. Despite internal turmoil in the White House, Trump has sucked up power even in his own administration, for instance through the proposed budget cuts to the Department of State. Even so, his executive orders and memoranda, vehicles of unilateral presidential power, have been largely accepted by Congress – an indication of the extent of the shift.

The constitutional separation of powers in foreign policymaking would suggest that the executive’s sphere of influence is strictly limited. Yet, Congress has not only allowed for the erosion of its powers; it has handed them to the executive, often knowingly. What results is a murky constitutional crisis and the breakdown of checks and balances. This imbalance does not bode well in the context of America’s past imperialist adventures in Latin America and elsewhere. Concentrating power in the hands of a quasi-authoritarian leader like Donald Trump, whose disregard for legislative protocol and his own advisors’ input furthers thrusts autocratic tendencies into the Oval Office, makes unilateral intervention and democracy-building more probable.

Even at a time of historically high polarization, Congress is structurally better equipped to process streams of information and intelligence, and come to prudent plans of action. Legislators with specialized expertise rarely face pressure from constituents in this domain and have no executive to guide and oversee their agenda. They prefer, however, to stomp on these advantages with short-term partisan logic, as most recently apparent in the debate on intervention in the Assad regime. Lindsey Graham, Chairman of the Senate Subcommittee on State, Foreign Operations, and Related Programs, supported Trump’s recent flirtation with direct military intervention – despite the Senate declining to authorize war in besieged Syria. When the majority of lawmakers bind themselves to their partisan peer in the White House, power inevitably leaks out of Congress.

The Trump administration can and should be criticized for certain foreign policy stances, including the defunding of the State Department, but having an uninformed and impulsive leader at the helm of foreign policymaking would be much less dangerous if: (1) Partisan loyalty did not override the core constitutional unity of Congress as a branch; and (2) If Congress held presidents accountable for the enormous destabilizing effect of precedent-setting or precedent-affirming executive actions.

Fixing polarization at large might prove a near-impossible task, but the main problem here is more fundamental – a power imbalance between branches. Leaders from both parties must regain a pre-9/11 level of control and oversight in foreign policy.