The Unconstrained Presidency: Checks and Balances Eroded Long Before Trump
from U.S. Foreign Policy Program

The Unconstrained Presidency: Checks and Balances Eroded Long Before Trump

August 14, 2018 3:16 pm (EST)

Current political and economic issues succinctly explained.

This article was originally published in Foreign Affairs

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In the age of Donald Trump, it often feels as though one individual has the power to chart the United States’ course in the world all by himself. Since taking office as U.S. president, Trump has made a series of unilateral decisions with enormous consequences. He walked away from the Trans-Pacific Partnership, the Paris agreement on climate change, and the Iran nuclear deal. He imposed tariffs on Canada, China, Mexico, and the European Union. In June, he single-handedly upended the G-7 summit by insulting Canadian Prime Minister Justin Trudeau and withdrawing the United States from the group’s joint communiqué. In July, his European travels produced more diplomatic fireworks, with a NATO summit in Brussels that raised questions about his commitment to the organization—before his deferential press conference with Russian President Vladimir Putin. 

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Each choice has brought howls of outrage—but little real pushback. Congress, for example, has proved unable to block the president from starting a trade war with China and with U.S. allies. For all of Trump’s talk of a shadowy “deep state” bent on undermining his every move, the U.S. government’s vast bureaucracy has watched as the president has dragged his feet on a plan to deter Russian election interference. Even the United States’ closest allies have been unable to talk Trump out of damaging and potentially withdrawing from institutions of the liberal international order that the country has led for decades. How can a political system vaunted for its checks and balances allow one person to act so freely? 

In reality, the problem goes well beyond Trump, and even beyond the well-documented trend of increasing presidential power. Constraints on the president—not just from Congress but also from the bureaucracy, allies, and international institutions—have been eroding for decades. Constraints are like muscles: once atrophied, they require bulking up before the competitor can get back in the game. Trump did not create the freedom of action he is now routinely displaying. He has merely revealed just how difficult it is to prevent it. 

In Congress, the combination of declining foreign policy expertise among members and increasing political polarization has reduced the ability of legislators to supervise the executive branch even if they had the appetite to do so. The bureaucracy, meanwhile, has lost its incentive to cultivate and wield expertise as decision-making has become centralized in the White House and congressional action and oversight on foreign policy have declined. And U.S. allies, for their part, have become less able to check the president’s foreign policies as the alliances have become ensnared in U.S. partisan politics. Similarly, the post–Cold War era has frequently seen presidents circumvent international institutions.

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Going forward, any attempts to stem the growth of presidential power will have to confront not just the damage done by Trump but also the deeper problem that damage has exposed: that the bodies charged with constraining presidential power have been steadily losing both their willingness and their capacity to rein in presidents. Many have written eloquently, particularly since 9/11, about the need for checks on presidential power. But the reality is that Congress is in no shape to reclaim its role in foreign policy—and neither are the other traditional sources of constraint on U.S. presidents. It may take a major shock, such as the rise of China, to reboot the system. 

Legislators Gone AWOL

The Constitution grants Congress the ability to constrain the president on issues such as trade and the use of force. Although formal votes on presidential foreign policy are rare, the legislative branch can act as a check on the president in several other, more informal ways. Senators and representatives can hold hearings that generate debate and expose decisions to public scrutiny. They can also force the president to anticipate congressional reactions to policy, leading him to check himself before Congress checks him—an important, if often invisible, form of oversight. For example, he might shape the details of a controversial international agreement to make sure members of Congress will not balk. 

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But Congress’ oversight of U.S. foreign policy has declined markedly since the early Cold War, and especially since the mid-1990s. As the political scientist Linda Fowler has put it, “Something is amiss in the Senate and its national security committees.” The two Senate committees tasked with oversight of foreign policy and national security—the Foreign Relations Committee and the Armed Services Committee—have held substantially fewer hearings (both public and private) over time, resulting in far less supervision of major foreign policy endeavors, such as the wars in Afghanistan and Iraq, than was the case for Cold War–era military interventions. 

Why this decrease? The rise of partisanship is one important reason. Although foreign policy has never been fully isolated from politics, political polarization began to rise in the 1970s, and it increased sharply in the 1990s. Today, members of Congress reflexively support their own party. In periods of unified government, this means extreme deference to the president. In periods of divided government, it means congressional gridlock. Neither scenario yields much in terms of congressional oversight. 

Polarization also gives presidents reason to simply ignore Congress when making foreign policy. As the political scientist Kenneth Schultz has argued, with members less willing to cross the aisle, it is “more difficult to get bipartisan support for ambitious or risky undertakings, particularly the use of military force and the conclusion of treaties.” And so presidents opt for alternatives such as executive agreements over formal mechanisms such as ratified treaties. Consider the Iran nuclear deal. In 2015, President Barack Obama, concerned that he could not get a treaty with Iran past the Republican-controlled Congress, chose to make an executive agreement (which made it all too easy for Trump to tear up the deal later).

Another trend that has sapped Congress’ influence is the decline of congressional expertise on foreign policy and national security. Simply put, legislators used to know more about foreign policy than they do now. Greater expertise strengthened Congress’ formal and visible role, since committees could engage in greater oversight of the executive branch. Expertise also reinforced Congress’ invisible means of constraining presidential power. Presidents had to think about how a seasoned committee chair or member would assess a policy. During his initial escalation of the Vietnam War, for example, President Lyndon Johnson was careful to maintain the support of powerful committee chairs, such as Senator J. William Fulbright, who led the Senate Foreign Relations Committee from 1959 to 1974. Fulbright shepherded the Gulf of Tonkin Resolution through the Senate in 1964, but two years later, his probative hearings helped shift public opinion against the war. 

Congressional expertise also led to serious, bipartisan policies that could force the president’s hand. A good example is the Cooperative Threat Reduction Program, an initiative for safely securing and dismantling weapons of mass destruction in the former Soviet Union. Senator Sam Nunn, a Democrat from Georgia, and Senator Richard Lugar, a Republican from Indiana—two defense stalwarts who had been deeply involved in arms control agreements during the Cold War—proposed it in 1991 as an amendment to the annual defense bill. The George H. W. Bush administration initially opposed the legislation because it diverted $500 million previously authorized for other purposes, but Nunn and Lugar prevailed, backed up by 86 votes in the Senate. They were able to pass their bill because the existing polarization was still manageable and because both senators were respected experts on defense and foreign policy.

The program was a high-water mark of expertise-informed legislation. In the years since, legislators have become less and less interested in the details of foreign policy. In 1994, a small group of newly elected congressional Republicans even proudly declared that they did not own passports. 

Several factors explain the decline in expertise. Changes in the way senators now divide up committee roles, by increasing the number of committees they sit on, have led to greater breadth at the expense of depth. The media, facing fragmentation and declining budgets, have paid less attention to the crucial committees, especially the Senate Foreign Relations Committee and the House Foreign Affairs Committee, thus diminishing their value as reputation burnishers on Capitol Hill. Increased turnover has led to less seniority, particularly on the Senate Foreign Relations Committee, reducing the number of specialists to whom other senators can look for leadership on complex issues. Add in polarization and gridlock, which, by reducing overall congressional activity, also reduces the incentives to develop specialties, and the result is a Congress with decidedly less expertise. 

An inflection point in the long-term decline of congressional oversight came after 9/11, when Congress passed the Authorization for Use of Military Force, a measure intended to combat terrorism but that presidents ended up interpreting broadly. For nearly 17 years, the AUMF has served as the legal justification for expanding military operations across the Middle East, many of them only tenuously related to the original intent. But legislators have shown little appetite for seeking a new AUMF, which would constrain the president when it comes to the many counterterrorism missions the United States now conducts in places such as Somalia, Syria, and Yemen. That’s because the status quo actually suits many members of Congress. It lets them avoid voting on military operations—always risky, since they can be held accountable for their decision on the campaign trail—and it allows them to fixate on the legality of the operation without having to take a position on its wisdom.

Obama’s decision in August 2013 to seek congressional authorization for the use of force in Syria in response to the regime’s use of chemical weapons may at first glance look like a sign of deference. But it actually exposed how weak legislators’ war-making powers had become. Unable to gain backing even from the United Kingdom, Obama announced that he would seek congressional authorization before launching an attack. Apart from a few Republicans who insisted that the president could not strike Syria without legislative approval (something they would not insist on later when Trump carried out strikes in 2017), most members were visibly eager to avoid being drawn into the debate—thereby proving how much Congress had been sidelined. As Ben Rhodes, Obama’s deputy national security adviser, confirmed in his memoir, the president sought a vote knowing he might lose, which would firmly demonstrate legislators’ lack of support for greater U.S. military involvement in the Middle East. (As events played out, the issue became moot when, at Russia’s prodding, Syria pledged to give up its chemical weapons.) 

Congress is equally reluctant to stand up to the president on trade. Despite misgivings over Trump’s protectionist measures, Democratic and Republican legislators have essentially given up on the issue. In June, Bob Corker, the Tennessee Republican who chairs the Senate Foreign Relations Committee, proposed a bill that would require the president to seek congressional approval for tariffs enacted in the name of national security. But he has not been able to gain sufficient support for the measure from fellow Republicans, who, with midterm elections looming, are reluctant to cross Trump.

There still are some dedicated foreign policy hands willing to fight to give the legislative branch a voice. In 2017, for example, Congress managed to impose additional sanctions on Russia against the president’s wishes. But overall, Congress has relinquished its authority on foreign policy and trade to the executive branch—and would have trouble reclaiming it even if it wanted to. 

The Bureaucracy Sidelined

The United States’ emergence as a global power a century ago required the development of a strong civil and foreign service to manage relations with other nations. Knowledgeable and experienced bureaucrats came to serve as ballast against impulsive changes. Naturally, presidents have found it frustrating that they cannot get the bureaucracy to do their bidding. President Harry Truman, for example, complained that the “striped pants boys” at the State Department were failing to implement his policies. But in recent decades, some of the same forces that have weakened Congress have also undermined the bureaucracy’s ability to check presidential power.

Ever since Truman signed the National Security Act of 1947, which created the National Security Council, presidents have tried to sideline the career bureaucrats at the State Department in favor of a more politically attuned White House cadre on the NSC staff. Building on President John F. Kennedy’s establishment of a more White House–centric foreign policy process, Henry Kissinger, as President Richard Nixon’s national security adviser, cut the bureaucracy out of important initiatives, such as the opening to China and arms control talks with the Soviet Union. His counterpart during the Carter administration, Zbigniew Brzezinski, ensured that White House dominance over foreign policy continued, for example, by keeping the State Department out of negotiations in 1978 over the normalization of relations with China. 

Although President Ronald Reagan reempowered the State Department for a brief period under the leadership of George Shultz—in part by shuffling through six national security advisers in his two terms—the pendulum swung back under President George H. W. Bush. His powerful secretary of state, James Baker, sidelined his own bureaucracy and relied on a handful of political appointees to manage such policies as German reunification and the Israeli-Palestinian peace process. The following three administrations steadily expanded the NSC, whose professional staff doubled in size with each presidency. From just 50 staffers under George H. W. Bush, it grew to 100 under Bill Clinton, 200 under President George W. Bush, and 400 under Obama. No longer was the NSC functioning merely as a coordinator of policy; it was also implementing it, largely at the expense of career officials in the State Department. Even officials at the Pentagon came to feel overpowered. Former Secretary of Defense Robert Gates complained of “White House micromanagement of military affairs.”

Presidents may find a more powerful NSC useful, but it weakens the bureaucracy’s ability to provide strong, independent expertise. Political insiders chosen by the president to run White House operations because of their loyalty may have little experience crafting policy. Clinton, for example, came into office after 12 years of Republican administrations; his relatively inexperienced White House team struggled mightily on policy regarding Bosnia, Haiti, and Somalia. But the more that policies are crafted and implemented by the White House, the less incentive bureaucrats have to use their expertise to fill the void. If bureaucrats aren’t given a hand in crafting and implementing policy, why bother?

Far from stopping presidents from steadily drawing the machinery of foreign policy closer to the Oval Office, Congress has played its own role in the erosion of the bureaucracy as a check. With the increasing importance of quick presidential action during the Cold War, Congress acquiesced in the growth of presidential power, not only over itself but also over the bureaucracy. As the political scientists Sean Gailmard and John Patty have argued, if Congress could not restrain the president, their next best option was “to ensure that the president’s policy choices [were] supported by trustworthy advice that the president [would] heed.” If the president was going to centralize foreign policy and listen mainly to officials in the White House, Congress at least wanted the chief executive to make informed decisions. So it has done little to restrain the growth of the NSC staff.

There is, however, one part of the U.S. government bureaucracy that has seen growth rather than decline: the Pentagon. Especially since 9/11, U.S. foreign policy has been steadily militarized, and Congress has funded the Pentagon at higher and higher levels without increasing oversight concomitantly. The main victim is the State Department. In Africa, Latin America, and the Middle East, regional military commanders can eclipse U.S. ambassadors in bilateral relationships. The military does have an impressive ability to get things done quickly, but the risk is that policy will tilt too much toward using force to solve problems. As Secretary of Defense James Mattis has said, “If you don’t fund the State Department fully, then I need to buy more ammunition.”

Despite these trends, the State Department was able to maintain its deep reservoir of expertise for many years, which gave it some power to shape presidential decision-making. But under Trump’s first secretary of state, Rex Tillerson, the executive branch’s disdain for the State Department reached its apex. Positions at the undersecretary and assistant secretary levels were left vacant. In December 2017, Barbara Stephenson, a former ambassador and president of the American Foreign Service Association, reported that the U.S. Foreign Service officer corps had lost 60 percent of its career ambassadors since January of that year. And despite congressional outcry, Tillerson refused to spend funds that had already been allocated for countering Russian and terrorist propaganda, and he even supported further cuts to his own department’s budget (one thing Congress did not allow). Tillerson’s successor, Mike Pompeo, announced in May that he would lift the State Department’s hiring freeze and bring its “swagger” back, but as of July, it remained to be seen whether he would fulfill that promise. 

No Allies to Lean On

Amid the declining power of Congress and the bureaucracy at home, one important check on presidents’ foreign policies has been consultation with allies. Following World War II, the United States coordinated closely with its allies on major decisions, often acceding to their domestic needs. In part, such deference was driven by the necessity to maintain unity in the face of the Soviet threat. Presidents understood that if the most powerful country in the world flexed its muscle without regard to the concerns of others, it would create a backlash. And so less powerful allies were largely able to act as a check on American power.

In the late 1940s, during negotiations around implementation of the Marshall Plan, Truman allowed the United Kingdom to maintain privileged trading access to its colonies and dominions for the sake of avoiding a rift in the transatlantic alliance. In the late 1970s, the United States reassured Western European allies through NATO’s “dual-track” decision, whereby the United States would deploy long-range theater nuclear forces in Europe while pursuing arms control negotiations with the Soviets. And in the aftermath of Iraq’s 1990 invasion of Kuwait, Baker went around the world meeting with every head of state or foreign minister whose country had a seat on the UN Security Council (as well as with those of many countries that ended up contributing troops to the eventual operation), while George H. W. Bush worked the phones to secure passage of a UN resolution authorizing the use of military force if Iraq did not leave Kuwait. As Baker later acknowledged, Bush’s decision to stop short of capturing Baghdad as the U.S. military was routing Iraqi forces was partly due to concerns that doing so would break apart the international coalition.

But in the 1990s, the United States increasingly came to believe that as the lone superpower, it had both the ability and the duty to shape the world to its liking. By the end of the decade, U.S. allies felt tossed around, as exemplified by French Foreign Minister Hubert Védrine’s bitter reference to the United States as a “hyperpower.” The UN, too, came to constrain U.S. power less and less, in part thanks to the efforts of congressional Republicans who deeply opposed the institution. 

In the run-up to the 1999 war in Kosovo, Clinton bypassed the UN altogether because he knew that China and Russia would veto a resolution, but he still led the U.S. military operation through NATO in order to enhance its legitimacy. The United States willingly ran all target options through a vetting process within the North Atlantic Council, NATO’s political decision-making body, and the French, in particular, slowed down a number of American requests. 

After George W. Bush came into office, he took unilateralism to new heights. But he did seek minimal allied cover for the invasion of Iraq, and he even attempted to secure a second UN resolution, in part to help British Prime Minister Tony Blair domestically. A first resolution had been passed in late 2002 giving Saddam Hussein a final chance to comply with Iraq’s disarmament agreements but not specifically authorizing war against Iraq. And when France and Russia said they would veto a second resolution, Bush declared that he was acting with a “coalition of the willing.” Going it completely alone was a bridge too far. Still, the invasion is rightly seen as a clear example of the United States ignoring some of its closest allies. Part of the resulting fallout was the politicization of U.S. alliances, with American supporters of the war criticizing those countries that stayed out (as when a Republican legislator overseeing the House cafeteria renamed French fries “freedom fries”). 

Obama ran on a platform of repairing the United States’ relationships, and as president, he brought allies and international institutions more squarely back into the conduct of U.S. foreign policy. But the damage had already been done. No longer were alliances basic commitments to be upheld regardless of who occupied the Oval Office; increasingly, they were objects of partisan debate. When Obama decided to intervene in Libya through NATO in 2011, with UN Security Council authorization, Republicans, instead of championing the inclusion of allies, criticized him for “leading from behind,” as one of his advisers characterized the strategy. And later, when he negotiated the nuclear deal with Iran, the support of U.S. allies did little to bring Republicans on board, showing the declining effect of allies as a domestic consensus builder. 

If alliances continue to be viewed in such partisan terms, as the political scientist Daniel Drezner has argued, “the stock of allies will rise or fall depending on the partisanship of who is in the White House.” This would damage not only the visible, legitimizing role of alliances, whereby the public is more likely to support foreign policy initiatives that are backed by allies or multilateral institutions, but also their quiet, consultative function. During crises, allies can serve as both useful checks and valuable resources. But some future presidents may find themselves dangerously unfettered by allies. Others may want to turn to them, only to find that they are unwilling to pick up the phone.

The Future of Checks and Balances

U.S. presidents have long had more leeway in foreign policy than in domestic policy, but their control has never been total. Yet since the end of the Cold War, checks and balances that once limited presidential power in matters of foreign policy have been eroding. Trump’s unconstrained exercise of executive power did not come out of nowhere: it was made possible by the culmination of long-term trends. As a president who seems distinctly uninterested in the views of others, Trump could hardly have asked for a more suitable system. 

Many of the constraints on foreign policy are invisible. Presidents will anticipate pushback from Congress and restrain themselves accordingly. They will worry about generating enough international support and offer concessions to allies in closed-door meetings. The invisibility of these constraints makes them difficult to appreciate until they are needed. What Trump is exposing is that these constraints are already largely unavailable, and they cannot be reconstituted instantaneously. 

Can anything be done? The end of the Cold War unleashed the power of the American presidency. It may take the rise of China as a peer competitor for the American people and their leaders to realize that in order to make better foreign policy, the United States needs the wisdom and restraint offered by a Congress and a bureaucracy that have real power and serious expertise, as well as allies and international institutions whose utility is valued. The rising threat that China poses to U.S. interests could lead to a revival of congressional expertise in foreign policy, support for strengthening the United States’ diplomats, and a realization that allies and international institutions enhance U.S. power in managing the threat.

Short of that, Congress will likely continue to have little knowledge of or interest in foreign policy, the White House will still fail to take full advantage of the talent of the U.S. diplomatic corps, and presidents will go on ignoring the views of even close allies. This is now the unchained, unconstrained presidency. It didn’t start with Trump, but it has exploded since he took office, and Americans will be living with its consequences for a long time to come.

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