Carroll County Times Opinion

Stephen Carter: Congress right to weigh in on policy

Put aside the overheated spat about the wisdom of inviting Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress this week. The deeper constitutional issue involves the insistence by President Barack Obama that the House and Senate have no business floating sanctions bills that might upset the administration's negotiations over Iran's nuclear program.

The truth is that there's nothing remotely unusual going on. Congress has pressured presidents to change their approaches to foreign policy for as long as the country has existed. This sort of interplay among the branches is exactly what the Framers expected.


Let's start with a trio of examples in just the past four decades. In December 1978, a brouhaha erupted in Washington after President Jimmy Carter broke diplomatic relations with what was then known as the Republic of China and instead recognized the People's Republic of China. As part of the switch, Carter unilaterally ended the mutual defense pact between the U.S. and Taiwan. He subsequently submitted legislation to Congress that would preserve certain cultural and commercial ties with the Taiwan regime. He made no mention of military assistance.

Unimpressed, Congress instead enacted the Taiwan Relations Act, which bound the U.S. to provide defensive weapons to Taiwan, and provided that the U.S. itself would maintain sufficient military capacity "to resist any resort to force or other forms of coercion that would jeopardize the security, or the social and economic system, of the people on Taiwan."


The Carter administration opposed the bill as an interference with executive prerogative that was bound to upset the delicate negotiations with the People's Republic. Carter finally caved as it became clear that the alternative would be a statute binding the U.S. in less ambiguous terms to defend Taiwan -- exactly what the president had just abrogated. The Taiwan Relations Act remains on the books today.

In the mid-1980s, dissatisfied with President Ronald Reagan's policy of "constructive engagement" with the South Africa, members of Congress began pressing for tough economic sanctions. The Reagan administration objected that the proposed legislation would only disrupt negotiations and cause the apartheid regime to dig in its heels. After a protracted fight, Congress passed the sanctions over Reagan's veto.

During the presidency of George H.W. Bush, the U.S. supported the claim of Cambodia's government in exile to be the legitimate government of that country, even though Vietnam had invaded and installed its own regime. As part of rapprochement with China, the U.S. and its allies insisted that the government in exile hold Cambodia's seat at the United Nations. Congress was furious, because the coalition included representatives of the Khmer Rouge. After considerable pressure, including hearings and threats of legislation, the administration backed down.

Sometimes congressional pressure has taken a more formal path. President Abraham Lincoln chafed at interference from Congress's Joint Committee on the Conduct of the War, and indeed the committee did more harm than good. On the other hand, the Joint Committee on Atomic Energy, during its three decades in existence, was ahead of several presidents in urging improved safety devices for nuclear weapons, particularly those stored abroad, where they might potentially fall out of U.S. hands.

One can go back earlier, and find struggles between the legislative and executive branches in the early 19th century over how to deal with everything from attacks on U.S. ships by the Barbary states to Russian expansionism in North America.

This unambiguous history makes it all the more remarkable that members of the Obama administration continue to insist that there is something constitutionally troubling about, for example, the proposed Iran Nuclear Review Act of 2015, which would require the president to submit for congressional approval whatever agreement he reaches with Tehran. "I don't think there ought to be a formal approval process," Secretary of State John Kerry said in congressional testimony last month. "I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy."

The authors of the Constitution would have disagreed. Alexander Hamilton, in Federalist No. 75, defended against skeptics the Senate's role in approving or disapproving any agreement that would bind the nation abroad: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."

To be sure, the nation hasn't always abided by the wisdom of the Founders, and presidents have often undertaken to bind the U.S. without seeking a formal vote. The fact that Congress has too frequently acquiesced in such efforts doesn't mean that the legislative branch lacks the authority to put up a fight when it chooses.


We can argue long and hard over the proper contours of the final deal with Tehran. But it's wrong to suggest that Congress is misbehaving when it insists on protecting its prerogatives. Battles between the executive and legislative branches over foreign policy are as old as the republic. If the outcome of the current fight is a restriction on the freedom of this or a future president to go his own way, that's a feature, not a bug.

Stephen L. Carter is a Bloomberg View columnist and a law professor at Yale.