Did Congress just trump the President on national security?

Brian Diffell
Jul 28, 2017 · 5 min read

For all the sturm und drang about their knuckling under to President Trump in recent months, you’d never suspect that the U.S. Congress may have just quietly pulled off a significant shift in national security power that has potential long-standing implications.

For decades, presidents of both parties have insisted on the inclusion of broad executive waiver authority in most national security-related legislation and, critically, virtually all sanctions-related legislation. Modern conservatives in particular have taken an expansive view of executive authority inherent in Article II of the Constitution as it relates to foreign policy.

And in recent decades, Congress has almost always assented to the president’s insistence on broad waiver authorities, though sometimes begrudgingly. For example, during the legislative process leading up to the enactment of the Iran Sanctions Act in 2006, early versions of the bill would have required the president, before issuing a waiver, to simply certify that the home country of the entity being considered for the waiver was taking steps to help ensure that Iran was not producing a weapon of mass destruction. At the White House’s insistence, that language was replaced by more generic language granting the president authority to issue such a waiver if it “is vital to the national security interests of the United States.” That language is fairly standard across most legislation imposing sanctions on foreign entities and entities that interact with foreign entities.

Broad language like this has given presidents the ability to use their waiver authority as leverage in negotiations with rogue nations. President George W. Bush waived sanctions after negotiating a deal to eliminate weapons of mass destruction from Libya and showed a willingness to do the same with North Korea. President Obama issued a combination of waivers under the Iran Sanctions Act and other sanctions policies to execute the nuclear deal he cut with Iran in 2015. The Obama Administration also took advantage of waivers in its efforts to open U.S. relations with Cuba. Because these negotiations did not culminate in treaties, Congress lacked any effective mechanism to judge the president’s actions. In the case of the Iran nuclear deal, Congress created a mechanism to reject the president’s action ex post facto, but the disapproval resolution ultimately failed to clear the Senate’s 60-vote hurdle by two votes in September 2015.

President Trump’s political vulnerability on Russia, combined with congressional Republican outrage over Obama’s nuclear pact, created bipartisan momentum for Congress to revisit the legislative mechanism it used to review the Iran deal, but this time to bake it into a new Russia sanctions bill. Under the legislation (which passed both bodies overwhelmingly and looks set to become law regardless of the president’s willingness to sign it) Congress will now possess a permanent procedure for either party to force a vote on overriding the national security waiver related to Russia sanctions. Using what is commonly referred to as statutory rule-making authority, Congress created expedited rules for its members to determine whether a waiver should be rejected. A resolution disapproving of such a waiver would still require 60 votes in the Senate, but the new law would ensure that such a resolution would receive a floor vote in a reasonable period of time and that the president cannot act on a waiver while Congress considers the issue. This procedure reflects a reasonable balance of the prerogative of the president to conduct foreign policy and Congress’s responsibility to judge the president’s use of the authority granted to him by its members.

Sanctions legislation is not the only area where Congress might consider similar procedures. Over successive generations, Congress has delegated significant authority to the Executive Branch to make trade policy (a clear Article I prerogative) using emergency economic powers to raise tariffs. In recent months, as President Trump’s protectionist instincts have vexed members of both parties, they have found themselves almost powerless to block the president from using the authorities delegated by Congress decades ago under arcane sections of code, such as Section 232 of the Trade Expansion Act of 1962 or Section 203 of the International Emergency Economic Powers Act of 1977. The president may have a very defensible reason for the imposition of significant trade barriers in extraordinary circumstances, but Congress should insist on judging this for itself, given the potentially catastrophic consequences of these policies in today’s global economy.

Here’s why this all matters: If Congress begins to give itself the enhanced ability to disapprove of certain waivers or other presidential actions, foreign powers will have to at least consider the views of the U.S. Congress during negotiations with the administration. At any given moment, that prospect could be either helpful or harmful to an administration, based on its relationship with Congress and Congress’s disposition toward a foreign policy problem.

There are surely limits to the desirability of congressional action. Punitive national security policies are not put in place in the hope that rogue nations will remain forever roguish. To the extent foreign nations want to improve their behavior, Congress should empower the administration to provide those incentives. The Framers did not intend for Congress to micromanage the president’s ability to negotiate, but they did intend for Congress to assert its responsibility to oversee the chief executive’s foreign policy actions and act when appropriate. That responsibility must be fulfilled, especially at this moment.

Whether Congress will insist on including a similar mechanism to review the president’s actions on future national security legislation remains to be seen. Senate Foreign Relations Chairman Bob Corker has stated he believes the mechanism to be precedent-setting, and even briefly held up a House-Senate negotiation over the bill in an attempt to add similar language to new sanctions imposed on North Korea. Majority Republicans’ willingness to give each body’s minority leader an equal opportunity to offer a disapproval resolution sets the right tone for future legislation. Experienced observers of the U.S. Government understand that precedents matter a great deal in the interplay between and among its branches.

Congress, in spite of its deep divisions, showed this summer that it can act decisively and in a bipartisan manner when confronted with national security challenges. Leaders in both parties should have the confidence to insist that the Executive Branch subject critical national security decisions to reasonable legislative scrutiny when exercising authorities delegated by the people’s representatives.

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