Congress and the President need to consult

Congress has developed a fondness for open letters when it comes to Iran. First came the warning shot signed by 47 Republican senators that touched off a storm of criticism. Not to be outdone, the House checked in with its own bipartisan and more diplomatically stated letter to the President, warning that its members must be satisfied with any agreement before they’ll vote to reduce sanctions. What lies behind these moves? I think Congress feels left out of foreign policy-making.

I have considerable sympathy for this impulse. Over the decades, too much power has drifted to the President when it comes to foreign affairs. The Congress has been deferential, even timid, in allowing this to happen.

Moreover, the administration has not done an especially good job of consulting with Congress. The President is the chief actor in foreign policy, and it’s his obligation to reach out and develop a sustained dialogue with Congress on foreign policy matters. As far as I can tell, he has not done that sufficiently.

Yet much as I want to see Congress speak up on foreign policy, how it does so matters. The Senate’s letter to Iran was ill-considered and unhelpful. Its purpose was to defeat the nuclear negotiations, and it undercut the President while he was trying to negotiate a deal with another world leader. It raised questions about America’s reliability, invited doubt about the President’s ability to negotiate a deal, and created a major distraction at a crucial moment. The letter undermined not only this President’s credibility, but undermines future presidents’ as well. It suggests that no one in the U.S. government is empowered to strike a deal.

The letter did focus appropriately on presidential use of executive orders to conduct foreign policy, but it wrongly implied that presidents are hamstrung in the conduct of policy. The senators suggested that an executive order on Iran is likely to be reversed by a future president, which is not true. Presidential deals with other countries are rarely overturned by their successors.

In part, this is because once an agreement is in place it becomes very difficult to undo — especially if it’s working. Also, presidents are reluctant to reverse their predecessors’ work because they don’t want to undercut the same tool they themselves rely on to pursue their foreign policy goals.

As a nation we’ve gotten into the bad habit of using executive orders for the most important foreign policy initiatives — including such watershed moments as Richard Nixon’s opening toward China and President Obama’s accord with Syria banning the use of chemical weapons. In recent decades, 94 percent of pacts between the U.S. and other countries have been under executive orders; just 6 percent are done by treaty. This is because treaties require a two-thirds vote of the Senate before they can be ratified, and that has become a near-impossible milestone to reach.

Yet the fact that a president can act on his own does not mean that he should do so. The reliance on executive orders means we have no clear mechanism, or even requirement, for the President to consult and work with Congress on foreign policy. So Congress feels left out of the action, and in an effort to deal itself back in it behaves clumsily, as the Senate did with the Iran letter.

The way past these bitter battles is meaningful consultation. The President and the Congress need to consult regularly and in depth before problems come to a head. Sustained and respectful consultation would go a long way toward avoiding the acrimonious contention over foreign policy that we’ve seen of late.

Edward S. Corwin, a professor of jurisprudence at Princeton in the first half of the 20th century, once called the Constitution an “invitation to struggle for the privilege of directing American foreign policy” — a line that is far better known than Corwin himself. Over the last half-century, the contest has largely been decided in favor of the President.

Congress’s bid to reopen the question is not, in and of itself, a bad thing. But if the President and the Congress want to avoid these flare-ups and strengthen the nation’s foreign policy, they should exercise in-depth, sustained consultation.

Lee Hamilton is Distinguished Scholar, Indiana University School of Global and International Studies; Professor of Practice, IU School of Public and Environmental Affairs; and Chairman, Center on Congress at Indiana University. He served as U.S. Representative from Indiana’s 9th Congressional District from 1965-1999.

 

**********

Published: April 9, 2015 - Volume 13 - Issue 52