What lessons should Congress draw from its recent efforts to win greater control over the conduct of foreign policy?

“In the areas of defense and foreign affairs, the nation must speak with one voice, and only the president is capable of providing that voice.” (President Ronald Reagan, 1984)

“... the American system of government disintegrates the leadership of Congress, and then largely stakes the fate of itself and the world of nations with which it is merged by physical oneness, upon the character and ability of one solitary man in the White House: that is, upon an accident... ruin as well as bliss is risked upon a single throw.” (Professor Herman Finer, 1951)

The American Constitution has placed immense power, prestige and influence in the hands of a single individual. Yet, the President, as seen by the men of 1787 who drafted the Articles that created the presidency, was to be official Head of State, mostly an honourable position, and an officer above the level of parties or factions who would carry out the will of Congress. His chief powers were to be confined to conducting foreign relations and administering federal laws. Both these fields were expected to be small with America so remote from the rest of the world and with the then prevailing view that all government should, in any case, be kept to a minimum.

This view of the President as a dignified statesman and servant of the Union was also coloured in part by the fact that George Washington was bound to be the first man chosen to fill the office. The Founding Fathers, however, were cognisant of the dangers of power being left in the hands of one man only and hence tried to constrain that endowment by placing some limitations on the presidency.

It was thus stipulated that the method of electing the President should be indirect and that the term of office should be fixed at four years. Since 1951 the very longest that one man can serve is ten years (half a term as a succeeding Vice-President and two full terms on his own account). What any President can achieve, is therefore limited by the time available to him.

A further restriction on presidential powers, and probably the greatest, is Congress. According to Constitution, in international affairs Congress is entitled to more powers than those attributed to the President. It authorises Congress to deal with international commerce, the punishment of piracies and felonies committed on the high seas and offences against the law of nations. It gives Congress control over declarations of war and the power to appropriate funds from the treasury and to tax and spend from the common defence and the general welfare. The “powers of the purse” continually imprint the conduct of foreign affairs.

The President, on the other hand, “shall be commander in chief of the army and the navy of the United States, and of the militia of the several states”. And shall have the power to make treaties, appoint ambassadors, other public ministers and consuls, judges of the supreme court, and other officers of the United States, “by and with the advice and consent of the senate.”

The Constitution was so framed that no President could ever be a dictator without first destroying the Constitution, which he had sworn to defend. If then, “the specific grants of authority to the executive in foreign policy were trivial compared with the authority specifically granted to Congress”, why is the President the pre-eminent figure in foreign policy making?

As Commander in Chief of the nation’s Armed Forces, the American President commands the ability to unleash hell and unprecedented destruction, a capacity unequalled by any other politician in the US government.

Besides the powers conferred upon him by constitutional provisions, authority also derives from the historical relationship between the two separate powers. Since the Great Depression in the early 1930s, Congress has passed about 500 statutes that give the President extraordinary powers, such as the capability of declaring a state of emergency for example.

During the critical atmosphere of the post World War II period and the Cold War with the Soviet Union, America’s emergence as the sole protector of the international community and the presidential ability to act assertively and decisively, contributed to the rise of a widely shared consensus that a strong presidential leadership was necessary. The period following 1945 then witnessed a series of resolutions that fostered presidential supremacy. The Vandenberg Resolution (1949), in which Congress supported a permanent American alliance with European nations (currently NATO), and the Formosa Straits (1955), Middle East (1957), Cuban (1962), Berlin (1962), and Gulf of Tonkin (1964) resolutions, in which Congress gave the President broad powers to deal with external conflictive situations.

The Constitution’s provisions combined with practise, ensured over time, a presidential prevalence over Congress in the formulation as well as the execution of American foreign policy.

Congress itself as an institution, on the other hand, is also poorly equipped to compete effectively against the President over control of foreign affairs. Three interrelated factors explain this: parochialism, organisational weaknesses and lack of expertise.

Members of Congress are up for re-election every two years (all 435 members of the House and a third of the Senate) and hence constant preoccupation with re-election creates pressure to concentrate more on domestic issues than on international concerns. The President faces re-election only every four years, giving him more time to focus on foreign policy matters. The President is also elected on a national basis, whereas members of Congress are limited to smaller constituencies and thus are more likely to fall prey to pressures from certain interest groups, which might influence and direct their policies.

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Decision making process within Congress is also undermined by the fact that there are 535 members and each has to cast a vote on particular strategies. This can attribute to the frequent stalemate in passing bills and new legislation. At a time of crisis, however, decisions have to be made swiftly. As G. T. Allison argued in his book “Essence of Decision”, it was President Kennedy’s ability and that of his advisers to move rationally and promptly during the Cuban Missile Crisis that prevented the world from entering a Third World War.

The executive also has a much better control over the flow of information and is therefore more prepared than Congress, and is more likely to come up with better strategies at time of crises. As an anonymous member of Congress observed in 1976, “the actions of the United States are not secret to other nations, only to Congress and the American people.” Furthermore, the vast number of agencies and personnel at the President’s disposition, such as the National Security Council and the National Security Adviser, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI) and several others, ensures that the executive branch has the required expertise to formulate foreign policy.

In essence, “the foreign policy of the United States is what the president says it is.” As a Supreme Court ruling in a seminal case, United States v. Curtiss-Wright Export Corporation (1936) had declared: the president acts “as the sole organ of the federal government in the field of international relations.”

By the end of the sixties, however, presidential power had become so expanded that it gave rise to what historian Arthur M. Schlesinger described as “The Imperial Presidency”. Schlesinger suggested that Presidents were abusing and misusing the authority conferred upon them and that in some cases it even “threatened our constitutional system”.

As the President’s power and pre-eminence grew to seemingly excessive proportions, Congress became uneasy and began to make attempts to win greater control over the conduct of foreign policy. The first signs of discontent were apparent as early as 1968 when President Lyndon Johnson’s credibility was so undermined by his failure to end the war in Vietnam that he could not run for re-election for a second term. The victory of Richard Nixon obscured the omens for a time but as the war in Vietnam continued, and the Watergate scandal surfaced, the seventies saw the end of the era of the ’imperial presidency’. Both the American people and the United States Congress, like Dr. Frankenstein, slowly awoke to the realisation of the monster they had created. As a result, a series of legislative efforts by Congress followed: the repeal of the Gulf of Tonkin Resolution (1970), the Case Act (1972), the War Powers Resolution (1973), the Hughes-Ryan Amendment (1974), the Congressional Budget and Impoundment Act (1974) and the National Emergencies Act (1976), to name a few.

They all tried to make it more difficult for President’s to initiate war single-handedly and otherwise increase congressional power over foreign policy making. “None removed the president from his pivotal position in the foreign affairs government, however.”

In the first Article of the Constitution it is clearly and unequivocally stated that “The Congress shall have the power... to declare war”. Yet, during the period after the Second World War, Presidents sent American troops into action in Korea, in Lebanon, in the Congo, in the Dominican Republic, in South Vietnam, in Laos and in Cambodia, on each occasion without any declaration of war. In each case, the President was using the authority, conferred by the Constitution, of Commander-in-Chief, which enables him to deploy the armed forces as he wishes. In some of the cases, American involvement was brief and limited and, in every case, except Korea, the President subsequently obtained a congressional resolution to support his action.

Nonetheless, the concept developed of the ‘presidential war’ which was not declared by Congress but in which American soldiers were killed just as surely as if Congress had done so. So long as the President was conducting limited operations or acting, as Truman did in Korea, with the broad consensus of public opinion behind him, concern about the constitutionality of the President’s actions was confined to constitutional lawyers and minority opposition groups. The war in Vietnam, however, which started with public and congressional approval turned into a bombshell and marked the turning point in congressional attitudes towards the pre-eminence of the presidency. It was the first televised war and moreover, the United States lost it.

President Johnson sent combat troops into Vietnam to bolster their collapsing allies and over the following years, more and more forces were committed to the war, still undeclared by Congress, as more and more desperate efforts were made to defeat an enemy who refused to be beaten and whose guerrilla tactics were admirably suited to the jungle terrain. Those, indeed, proved invincible.

As more and more American soldiers died, so disillusionment spread at home. With the aid of television and modern high-speed communications, the full horror of modern warfare, the ugliness of slaughter and the plight of the Vietnamese population caught up in the conflict were all brought into the homes of every American in full colour. Many found it increasingly hard to stomach what they saw being done in the cause of liberty, especially when it seemed that nothing was to be gained.

President Johnson, who had sent in American troops to ensure a speedy victory and had sent in more and more when victory eluded him, suddenly found that he had lost all credibility. Accepting the inevitable, he declined to run for re-election in 1968.

The newly elected President, Richard Nixon, was left with the task of extrication, and pursued the policy of ‘Vietnamisation’. The plan was to provide the South Vietnamese with such overwhelming military resources that they could fight and win their own war. Unfortunately they could not and, while pressure at home was eased as some troops were pulled out, the situation in Vietnam grew worse. In 1970, Nixon decided to bomb the North Vietnamese bases in the neighbouring neutral state of Cambodia, under a cover of secrecy. When this failed to solve the problems, the President announced that he was sending troops into Cambodia as a sharp offensive to save the situation.

It did not and the response in America was dramatic. Nation-wide outrage against the President’s action led to student demonstrations, protests marches and renewed demands to end the war. Congress, slowly awakening to the unconstitutional nature of presidential wars, repealed the Gulf of Tonkin Resolution and tried to withhold funds for further operations. The President used his veto in an attempt to stave off congressional restraint and send his Vietnamese allies into Laos as yet another desperate throw for victory. This, too, failed and Nixon looked all set to follow his predecessor to electoral oblivion.

Richard Nixon’s diplomatic activity, however, directed by Henry Kissinger, led to the reopening of American relations with China, which had been frozen since the Communist take-over in 1948, and to the negotiation of an arms control treaty with the Soviet Union. Nixon was thus able to present himself to the electorate in 1972 as a man of peace and diplomatic skill, a reputation which was underlined when he announced the imminence of a cease-fire in Vietnam only a week before the election.

Nixon’s triumph was total, but then came Watergate. “It was a subversion and corruption of the political process”, marked with presidential deceptions, lying and transgressions against cherished notions of separations of powers. Investigation by the Senate, which requested documents, tapes and testimony revealed as well as fraud and immorality a series of ‘executive agreements’, that had been secretly carried out during the sixties.

According to Article II, section 2 of the constitution, the President has the power to make treaties, but these are only valid once ratified by the Senate. Executive agreements, however, permit a President to enter into secret arrangements with a foreign nation without congressional approval. After Watergate, many members of Congress argued that this was an insult and that the subversion of the treaty ratification process of the Constitution was a serious violation. Thus in 1972, The Case Act was enacted. Senator Clifford Case of New Jersey sponsored a bill that requires the executive branch to submit to the Senate, within sixty days, the final text of any executive agreement.

Even though Congress gained a significant inroad, it remained at the President’s own discretion to submit only to the Senate Foreign Relations Committee and the House International Relations Committee on a classified basis, those executive agreements he judged to possess “sensitive national security implications”. Presidents still negotiate executive agreements and sometimes fail to comply with the Act.

A year later, in 1973, Congress enacted the War Powers Resolution. Nixon attempted to veto it, claiming the resolution was an intrusion in the presidency’s constitutional authority and a hindrance to effective decision making at a time of crisis. Congress overrode the veto and by law declared that henceforth the president could commit the armed forces of the United States in three circumstances only: (a) a declaration of war; (b) a statutory authorisation; (c) a national emergency created by an attack on the US or its armed forces. After committing the armed forces under the third condition, the President must immediately inform Congress; and unless war has been declared, commitment is to be terminated within sixty days, with the proviso that the president may be allowed another thirty days if Congress is certified that continued use is vital to the security of the United States. A President must also consult Congress in every possible instance before sending troops abroad.

The War Powers Resolution, is not a “severe encroachment on the president’s authority”, however. No President has ever acknowledged the constitutionality of the legislation.

To cite an example, on the morning of 25 October 1983, US Marines and Army Rangers were sent to Grenada “to protect the nearly 1,000 American citizens... whose lives had been allegedly jeopardized by actions of a military junta that had gained control of the island after a bloody coup a few days earlier; to forestall further chaos; and to help in the restoration of democratic institutions in Grenada.”

The War Powers Resolution clearly stipulates that “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by circumstances.” There is no evidence of ‘consultation’ by the Reagan administration, however. As Speaker Thomas P. O’Neill later admitted, “we weren’t asked for advice... we were informed what was taking place.”

Thus, the invasion of Grenada can be said to teach Congress the lesson that in some situations, the political power of Congress to constrain the President through the War Powers Resolution is severely limited if it is not non-existent.

As a civilian agency, the CIA is not included in the jurisdiction of the War Powers Resolution; it does not require the President to inform Congress of covert CIA operations. But abuse of intelligence and spying agencies also became a matter of congressional concern. Consequently, in 1974, Congress enacted the Hughes-Ryan Amendment placing some restrictions on covert operations by the CIA. The amendment requires the executive to advise eight congressional committees of its plans for clandestine operations. With the exception of “necessary intelligence” gathering, it also forbids the use of funds by the CIA for such secret operations, “unless and until”, they are considered by the President as necessary to the national security, and each is reported, “in a timely fashion”, to the “appropriate committees”, the Senate Foreign Relations Committee and the House International Relations Committee inclusive.

However, written reports are not required, and oral briefings are accepted. Also, a report, is not a prerequisite for a covert operation, so “prior notification is not a precondition to implementing the activity.” It is still not certain that Congress is able to fully control CIA operations, though. Moreover, Congress had already devised committees in the past to oversee the intelligence agencies, but those simply did not accomplish their tasks.

Another area in which Congress tried to reassert its authority was the budget. According to Edmund s. Muskie (1974), “Congress has seen its control over the federal pursestrings ebb away over the past fifty years because of its inability to get a grip on the overall budget, while... the executive branch has increased its power and influence.” In 1974, the Congressional Budget and Impoundment Control Act was designed to increase Congress’ participation in fiscal policy making for “he who controls the stream of budget making controls policymaking.” but this only represented a slight increase in the ‘power of the purse’, which Congress already had control over.

Finally, The National Emergencies Act of 1976 tried to terminate the President’s former unlimited discretion to declare a state of emergency. The act obliges the President to inform Congress in advance and specify the laws he plans to impose; and Congress will review such a declaration every six months. An emergency will terminate within a year, “unless the president informs Congress within ninety days before the end of the year that the emergency is to continue.” Even though emergencies last much less than they used to, the legal restrictions on the President’s authority were very vast.

By all accounts, Congress’ behaviour changed dramatically following the Vietnam War. It moved from supporting and sometimes expanding presidential powers to profoundly restricting it. In an attempt to gain greater control of the conduct over foreign policy, Congress devised a series of acts, amendments and resolutions, but all these measures failed to meet the legislators’ high expectations.

Even though some of them, such as the Hughes-Ryan Amendment and the National Emergencies Act did increase Congress’ ability to participate in foreign affairs, such an increase was somewhat minimal. Others, such as the repeal of the Gulf of Tonkin resolution were important as it represented the first of a set of congressional efforts to restore its position granted by the Constitution and the legislative veto was successfully imposed. But that was related to a single incident only and had no further effect in curbing future presidential actions. Furthermore, congressional attempts to use the veto in later incidents were restrained by the Supreme Court. The Congressional Budget and Impoundment Control Act only reasserted an existing power, whilst the War Powers Resolution, as the invasion of Grenada clearly demonstrated, seems to be completely disregarded by most presidents.

Due to its own limitations, Congress has proved far more successful in handling domestic affairs and should have learnt the lesson that the conduct of foreign policy shall, at least for the time being remain, in the hands of the executive. Perhaps, congressional influence will grow substantially in the following years, as domestic and international affairs become more interdependent as a result of globalisation. The American approach to Foreign Policy making will have to readapt and “Congress will play a key role in redefining America’s interests and strategies.” The question that will then be posed is how well will Congressmen handle the coming challenges, for their performance will help “shape the future of both the country and the world.”