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Congress and U.S. Foreign Policy

Author: Toni Johnson
January 24, 2013
This publication is now archived.

Introduction

The U.S. Constitution gives Congress extensive powers to shape foreign policy though congressional activism and influence on foreign policy has varied over time. Lawmakers seldom interact directly with other nations on policy, but the laws that Congress passes, or treaties and nominations the Senate approves, can influence U.S. interactions with other countries. Foreign policy has been a source of tension through the years between Capitol Hill and the White House, especially over issues such as sanctions and foreign aid, trade, and human rights. The 113th Congress, which took office in January 2013, has already signaled a continuation of policy push and pull.

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Congress Versus the President

The president, or executive branch, has the power to initiate as well as implement foreign policy through responses to foreign events, proposals for legislation, negotiation of international agreements, nomination of leading foreign policy officials, and statements of policy. Congressional approval is needed for spending, and consent is required for finalizing of trade agreements. More ambiguous are war powers, which are spelled out more clearly for Congress but in practice are dominated by presidential action.

"Generally speaking, Congress does not try to upstage the president on major international issues but likes to keep an oar in the water," says Donald R. Wolfensberger, director of the Congress Project at the Woodrow Wilson International Center. But other experts point to a number of examples in which Congress has openly defied presidents, such as refusing to approve the Treaty of Versailles in 1919 and 1920, the overwhelming defeat of the Comprehensive Test Ban Treaty in 1999, and the ongoing opposition to approving the Convention on the Law of the Sea despite support by successive U.S. presidents.

Congress has historically used its oversight role, issuing subpoenas in event of investigations, to show its disapproval of executive actions or change policy. High-profile investigations in the last half-century include probes into the Iran-Contra Affair and the intelligence problems leading up to the September 11, 2001 attacks. More recent investigations include the Justice Department's conduct in a cross-border gun sting known as the "Fast and the Furious" operation and the scrutiny into circumstances surrounding the September 2011 attacks on a U.S. consulate in Libya.

The Power of the Purse

Congress's funding power influences foreign policy a number of ways. For instance, when President Barack Obama issued an executive order to close the prison at Guantanamo Bay in March of 2011, lawmakers banned the use of federal dollars for the transfer by attaching language to a spending bill that was too critical for Obama to veto. More recently, in the defense authorization bill (WashPost) passed in January 2013 Congress strengthened limits on transferring detainees from Guantanamo Bay and other U.S. facilities to the United States or a third country.

In another example, Rep. Kay Granger (R-TX) in September 2012 used her position as chairwoman of the appropriations subcommittee overseeing foreign aid to prevent an impending USAID transfer (NYT) of $450 million in emergency aid to Egypt, despite Obama's pledge of $1 billion to help ease debts during the transition from military rule.

The move was made in response to the rising influence of Muslim Brotherhood members (RollCall) in Egypt's politics, and some U.S. lawmakers wanted to make the aid conditional upon meeting certain benchmarks. By early 2013, this aid was still held up in Congress.

Foreign Aid

In 2011, roughly 20 percent of the U.S. federal budget was dedicated to defense and security-related international activities and about 1 percent went to non-security international spending or foreign aid. Discretionary national defense spending as a percentage of total federal spending has been steadily decreasing for decades (WashPost), and foreign aid spending was also trending downward until the Iraq war.

Foreign aid funds are often targeted for cuts because these programs don't have a domestic constituency to protect them. And although public opinion surveys regularly show support (PDF) among a majority of Americans for development assistance abroad, legislators also seek to tap into sentiments by many voters that money should be prioritized on fixing problems at home.

Foreign aid funds are often targeted for cuts because these programs don't have a domestic constituency to protect them.

"When you look at the Pentagon and its gargantuan budget, it's likely that every single congressional district in the United States has either a U.S. military installation or a defense contractor," said CFR's Stewart Patrick of targeting foreign aid for cuts in 2011. The 2011 budget cut half a billion dollars (IPS) from foreign aid spending compared to baseline 2010 spending levels.

The version of the 2012 budget that Congress passed in late 2011 cut into President Obama's foreign aid spending request by more than $8 billion.

Even after allocating funds, Congress can change course. Funding for Pakistan, for example, has been under fire. In 2011, Congress voted to withhold funds (WSJ) after the raid that led to the killing of Osama bin Laden in a compound near Abbottabad caused a rift with Pakistan and after Pakistan cut off U.S. supply routes to Afghanistan. Since then, Congress has increased oversight of U.S. funds going to Pakistan (PDF), according to the Congressional Research Service.

Treaties and Trade

The executive branch negotiates treaties, which must be approved by a two-thirds Senate majority before they can be ratified. The Senate Foreign Relations Committee also can delay floor action on a treaty to encourage the White House to negotiate changes before it is willing to recommend approval.

The Senate can refuse to approve treaties, amend them, or attach reservations. In 1919 and 1920, the Senate famously refused to approve the Treaty of Versailles as negotiated by President Woodrow Wilson because of concerns that it would bind the United States to decisions made by the League of Nations and could supersede Congress's power to declare war.

In the last two years of the Bush administration, ninety treaties were approved by the Senate, followed by a steep dropoff during the Obama administration, wrote CFR Adjunct Senior Fellow John B. Bellinger III in the Washington Post. One example is the Law of the Sea Convention, which codifies sovereign rights over marine resources and seeks to protect the world's oceans. It was not approved by the Senate despite support from all military branches, major ocean industries, and many environmental groups.

Congress has also not acted on a number of economic treaties, notes CFR's U.S. Trade and Investment Policy Task Force report from 2011. The report points out that the U.S. president has not had congressional negotiating authority since the Trade Promotion Authority (TPA) expired in 2007. The report adds that under procedures approved in the 1974 Trade Act, "Congress agreed to consider trade agreements on an expedited schedule and to vote those agreements up or down without amendment. In exchange, it has promulgated extensive and often specific instructions for what should be included in those agreements and how it and private interests should be consulted during negotiation."

While the system worked well initially, TPA has become a controversial process linked to the growing public unease over the impact of U.S. free trade policy on domestic jobs and business.

The president has the option of issuing an executive order to carry out treaties without Senate consent. Executive agreements constitute roughly 90 percent of all U.S. international agreements.

Human Rights and Trade

Beginning in the 1970s, congressional assertiveness institutionalized human rights within the U.S. foreign policy establishment. Notable among early legislation was the Jackson-Vanik amendment, attached to the Trade Act of 1974. The amendment specified that the Soviet Union must discontinue the practice of forcing Jews to pay exit fees to emigrate if it wanted favorable trade relations with the United States.

In December 2012, Congress voted to repeal Jackson-Vanik and grant permanent normal trade relations to Russia. But as part of the legislation, known as the Magnitsky Act, Congress attached measures restricting the travel of Russian officials found to have been connected with the death of Sergei Magnitsky, a Russian lawyer, as well as other human rights violations. President Obama signed the legislation into law on December 14, 2012.

Declaring War

War-making powers are divided. Under the U.S. Constitution, Congress has the power to declare war, which it has done four times, the most recent being World War II. In a number of cases, such as Vietnam, the 1991 Gulf War, and the 2003 invasion of Iraq, Congress authorized the fighting.

The president, constitutionally authorized as commander-in-chief, has responsibility for leading the armed forces. Presidents have in numerous instances exercised their own authority to send U.S. troops into combat or into situations where hostilities were imminent.

Amid backlash against U.S. involvement in Vietnam, Congress passed the War Powers Resolution in 1973, overriding President Richard Nixon's veto. Under that law, the president must consult with Congress before sending U.S. troops into hostile situations, report commitment of U.S. forces within twenty-four hours, and end military action within sixty days if Congress does not declare war or authorize the use of force. But in the decades since then, presidents have repeatedly denied the unconstitutionality of the law and exploited ambiguities in it.

The Congressional Research Service says that from 1975 to 2012, presidents submitted more than 130 reports related to deployment of U.S. forces (PDF) as required by the resolution, but just one--the 1975 Mayaguez incident--cited action triggering the time limit.

The 113th Congress

The foreign policy issues expected to create tension between President Obama and Congress in 2013 include tightening sanctions on Iran and monetary aid to Egypt (RollCall). Also on the list will be hearings on nominees for national security posts such as the secretary of state and the director of the CIA.

Besides aid to Egypt, funding for the Defense Department (HuffingtonPost) as well as State Department programs may become points of contention. Republicans on the House Armed Services Committee have voiced opposition (Politico) to any defense spending cuts and House Republicans' vote against increased embassy security funding is likely to come up in relation to the Benghazi hearings.

While neither the House nor the Senate changed hands, there will be a number of [foreign policy] committee leadership changes.

While neither the House nor the Senate changed hands after the 2012 election, there will be a number of committee leadership changes. Josh Rogin writes in Foreign Policy that with influential leaders exiting and a new crop of national security lawmakers incoming, the result "could be a Congress that has less experience and fewer incentives to work across the aisle or cooperate with the executive branch, playing an increasing role of the spoiler in foreign policy."

Congressional gridlock also stalled cybersecurity legislation in 2012. Also raising concern is the inability of Congress to reconcile competing committee jurisdictions on some crucial policy areas, such as homeland security, leading to worries that this is adversely affecting national security (HuffingtonPost).

In November 2012, outgoing Sen. Richard Lugar (R-IN), a longtime influential member of the Foreign Relations Committee, recommended in the National Interest that the president and congressional leaders work to "reestablish a closer working relationship on national security" to help "to undergird national unity in the event of severe crises, such as war with Iran or another catastrophic terrorist attack."

Additional Resources

Congress's inability to tackle tough problems, both domestic and international, has serious national security consequences, in part because it leads the world to question U.S. global leadership, writes Kay King, CFR's former vice president for Washington initiatives, in a 2010 CFR special report on Congress.

Treaties remain "one of the best ways the United States can lead by example" and to "encourage political transformation in closed societies," says CFR's 2011 Independent Task Force Report on U.S. Trade and Investment Policy.

Norman J. Ornstein and Thomas C. Mann explore lapsing congressional oversight of the executive branch on foreign and national security policy, in Foreign Affairs.

Kirsti Itameri, Gayle S. Putrich, and Deborah Jerome contributed to this report.

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