James M. Lindsay, senior vice president, director of studies, and Maurice R. Greenberg chair at CFR, discusses Congress's role in American foreign policy.
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Senior Vice President, Director of Studies, Maurice R. Greenberg Chair, Council on Foreign Relations
FASKIANOS: Good afternoon from New York, and welcome to the CFR Academic Conference Call Series. I’m Irina Faskianos, vice president for the National Program and Outreach here at CFR.
Today’s call is on the record. And the audio and transcript will be available on our website, CFR.org.
We’re delighted to have Jim Lindsay with us to talk about the role of Congress in foreign policy. Dr. Lindsay is CFR’s senior vice president, director of studies, and Maurice R. Greenberg Chair, where he oversees the work of more than six dozen fellows in the David Rockefeller Studies Program. Previously he was the inaugural director of the Robert Strauss Center for International Security and Law at the University of Texas at Austin, where he held the Tom Slick chair for international affairs at the Lyndon Johnson School of Public Affairs. He also served as deputy director and senior fellow in the foreign policy studies program at the Brookings Institution, and was a professor of political science at the University of Iowa. From 1996 to 1997, Dr. Lindsay was director for global issues and multilateral affairs on the staff of the National Security Council, where he was—as an international affairs fellow from the Council on Foreign Relations. He has written widely on various aspects of American foreign policy and international relations. And I commend to you his most recent book, co-authored with Ivo Daalder, entitled Empty Throne: America’s Abdication of Global Leadership.
Dr. Lindsay, thank you very much for being with us today. I thought you could begin by talking a little bit about Congress’s role in foreign policy, and what you have seen as—during your studies, and what you see going forward.
LINDSAY: Well, thank you, Irina, for that introduction. I hope everyone is having a great semester, and thanks for joining us on this Academic Conference Call. Perhaps what I should do to kick things off is make three broad points about Congress’s role in foreign policy.
And the first point I would make is that both Congress and the president have ample powers in foreign affairs. And that is rooted in the Constitution. If you read Article I, it lays out the powers of Congress. Those powers include the power to declare war; the power to regulate foreign commerce—that is, trade; the appropriations power; the power to regulate the Army and the Navy; and likewise, the Senate has the specific power to provide advice and consent to all treaties, which are regarded as the supreme law of the land. Likewise, the president holds the executive power. The president by custom, based on the Constitution, is seen as the sole representative of the United States. So when we think about some of the systems set up by the Constitution, while we often talk about our political system as being one of a separation of powers, it’s more properly described—as the great political scientist Richard Neustadt put it a number of years ago—as separated institutions sharing power.
Now, I want to be clear here: These powers overlap, but that doesn’t mean they overlap perfectly. In some instances the branches hold what are called plenary powers; that is, the sole holder of that power. Most obviously in the case of the president the ability to negotiate on behalf of the United States is a plenary power; that is, it belongs solely to the president, not to Congress.
But besides the issue of what the Constitution says about the allocation of powers, we also have statutory powers; that is, Congress over the years has written a number of laws that delegate some of its authority to the president for the conduct of foreign policy. We see this perhaps most commonly in trade policy. It’s been a big factor behind President Trump’s tariffs on countries like China, but also on America’s friends and allies in the area of steel and aluminum tariffs. And likewise, the issue of the power that Congress has delegated to the president has figured in the most recent controversy over the president’s invocation of the so-called emergency power. During the question and answer if people wish we can talk about that more specifically.
I would also note that when we talk about the allocation of power there’s also in some sense a practical power, and that is the president has certain inherent advantages over Congress in the area of foreign policy. Alexander Hamilton famously wrote in Federalist No. 70 that those inherent advantages include “decision, activity, secrecy, and despatch.” That is, the president has a great power to be able to set the political agenda—to in a sense present Congress with a fait accompli and then leave it up to Congress to decide whether it wants to react.
So that’s sort of the sketch of the claims to power of both the executive and the legislative branch.
Second point I would make is that the balance of power between the president and Congress has waxed and waned, ebbed and flowed over the years. As a broad point, it’s the case that presidents today are more powerful—substantially more powerful—than early American presidents were. Just to give you one example, James Madison, one of the authors of the Constitution, when he was president declared that a resolution passed by the House of Representatives empowering him to use military force was unconstitutional because, in his view, the United States Congress could not delegate its war power to the president. Contrast that with Harry Truman in 1950 deciding without going to Congress that the United States would join what became the Korean War.
Generally speaking, if we look at the period since the end of World War II presidents have been more powerful, and that has really been governed by the sense that the United States faced great threats and as a result it needed strong presidential leadership. Public expectations about that leadership grew, so much so that there was talk in the 1970s of a so-called imperial presidency. That was a term that was popularized by the great Harvard historian Arthur Schlesinger, who wrote a book on the imperial presidency. After Vietnam power tended to go back to Congress. And as events have ebbed and flowed, that pendulum has swung back and forth between the two ends of Pennsylvania Avenue.
And I would say with the Trump presidency we are seeing a president who is trying to maximize presidential power, and I can discuss some specific details. You can see where Congress is trying to bring power back to its end of Pennsylvania Avenue.
Third point I would make is that Congress can influence foreign policy both directly and indirectly. When I talk about Congress’s ability to influence foreign policy directly, we’re talking about Congress as using its legislative powers to specify either the substance of foreign policy or how the executive branch conducts foreign policy. Now, there’s an important point to keep in mind here, which is that Congress can impose its preferences by actually passing legislation, but it can also in many instances impose its preferences by refusing to pass legislation. Again, keep in mind if you look at the constitutional structure that the Constitution gives Congress certain powers, one of the most notable being the appropriation power, and as a general rule—I’ll note that there are exceptions—presidents can’t spend money that Congress has not appropriated.
So we’ve seen this over the wall on the southern border. The Congress of the United States, both when it was controlled by Republicans in the last session of Congress and currently today where power is split with the Democrats controlling the House and Republicans the Senate, Congress has declined to provide those funds.
So presidents in the battle with Congress are at their weakest where presidents need congressional assent to go forward. So, again, think, for example, if the president wants to sign a treaty and the Senate doesn’t go along, the president’s limited.
But in many cases it is practice that the president can act until Congress declines or Congress affirmatively acts to restrict presidential power. And here presidential power tends to be at its greatest because, number one, it can be very difficult for Congress to pass legislation. And even if Congress does pass legislation, it is subject to a veto by the president. And as you know, in the American constitutional system to override a veto requires a two-thirds-plus-one vote in both houses of Congress. I will note that historically only one in ten presidential vetoes have been overridden by Congress. And the numbers are even smaller when you look at foreign policy. Since 1985, Congress has overridden exactly one presidential veto of foreign policy legislation. That’s why you may note that yesterday there was a vote in the House—I believe it was by 245 to 182—to block President Trump’s declaration of an emergency on the southern border. And I will note that the president—assuming the Senate follow suit, which it may or may not do—the president almost certainly will veto the motion. And the House would need to mount at least 290 votes to be able to override. And, again, the legislation passed with only 245.
But besides from influencing policy directly through legislation or declining to pass legislation, Congress can also influence foreign policy indirectly by conducting hearings, launching investigations, and the like. And essentially what happens here is what Congress is doing is trying to change the public conversation about an issue, perhaps to raise it up in the public consciousness, to try to embarrass the president, to mobilize interest groups in the broader public with a different position than the White House, or to call on the White House to take specific actions.
And generally here, the ability of Congress to frame an issue, to influence politics indirectly, essentially rests on how sensitive the president is to public opinion. It may be the case that in the face of congressional criticism, a president may decide to change the policy substantively. They may decide they want to keep the policy more or less the same substantively, but they’re going to change how they talk about the policy. Or in some cases, and I think you’ve seen this recently with President Trump, they end up doubling down in the face of congressional criticism, because they judge either the policy is really important and they need to stick with it, or they judge it to be in their political interest to stick with that policy.
So I think I’ll end my introductory remarks there, and we can discuss whatever people on the call want to discuss.
FASKIANOS: Jim, thanks very much for those insights. Let’s open it up to the group for questions.
OPERATOR: Thank you.
(Gives queuing instructions.)
We will pause for just a moment to allow everyone an opportunity to signal. OK, we’ll take our first question. And that is from Penn College. Please go ahead.
Q: This is Craig Miller from Penn College at Pennsylvania College of Technology.
Our students—our class, rather, has been working a lot around this question of delegation, particularly of one branch delegating powers to another. We’ve talked a lot about delegation from the trade deals that you were talking about, we talked about it in terms of the AUMFs for Iraq and Afghanistan. We even looked at a historical case, the NRA in the ’30s. We were wondering if you could kind of delve more deeply into if there is, or where there is a line in terms of when it is OK for one branch to delegate powers, and when it’s not OK.
LINDSAY: That is an excellent question. It is one that has deep constitutional roots. It is one that lawyers and justices have disagreed about over time. Again, as I began my remarks I noted that President James Madison had used the decision of the House of Representatives to delegate to him the authority to use military force as unconstitutional. My sense is most early American presidents felt the same way. It is not a position that American presidents have adopted or embraced since the end of World War II.
I will note that in legal circles this raises some issues. You’re probably familiar with the so-called non-delegation doctrine. There is no clearly established limit as to how much power Congress can delegate to the president. There’s actually a case in the federal courts right now that may—let me emphasize, may—address this issue, which has to do with the delegation Congress made in the Trade Act, allowing the president to impose tariffs for national security reasons. We’ll see whether the court actually addresses the core constitutional issue or not, and if it does how it decides. Likewise, President Trump’s recent invocation of emergency powers to proceed with building at least parts of a wall on the border with Mexico will raise the issue of whether the congressional delegation of authority was too broad or excessive. And we’ll see what happens in the courts on that.
What I will note is that I think everyone in this conversation recognizes that some degree of delegation authority is necessary for the government to function. The Congress of the United States cannot act as an executive body. The president has to have some empowerment. The question really comes down to the question of how much delegation is too much delegation. I think that’s really the legal rub.
FASKIANOS: Thank you. Next question.
OPERATOR: (Gives queuing instructions.)
And we’ll take our next question from Louis University. Please go ahead.
Q: Hello. My name is Zeferino Aguirre from Lewis University in Illinois.
And my question is: Because of the possibility for the majority opinion of Congress to change after every election year, is it realistic in today’s polarized political climate that the U.S. Congress has the ability to maintain a consistent stance on U.S. foreign policy issues to address long-term goals?
LINDSAY: That’s an excellent question. And my, I guess, big-picture answer to it is yes. Indeed, if you look at the post-World War II era, on a broad level the United States pursued a fairly consistent foreign policy that enjoyed substantial congressional support. It was a policy that my colleague, Ivo Daalder and I, lay out in our book, The Empty Throne. A gentleman by the name of Bob Kagan, who’s a senior fellow at the Brookings Institution has written an excellent book on the topic, called The World America Made. It was a foreign policy that emphasized alliance structures, collective security. It emphasized open markets, increasing trade, and enhancing or promoting democracy, human rights, and rule of law. And that overarching foreign policy approach—sometimes referred to as the rules-based order or the liberal international order—enjoyed a great deal of congressional support.
Now, that comes with a big asterisk. As you drill down, as you get deeper into very specific policies, obviously there were—even among people who agreed with that liberal order could disagree on the specifics. You know, was an agreement with Russia on nuclear weapons a good deal or a bad deal? Was the Vietnam War a wise choice or not? There’s, on specifics, a great deal of disagreement, often political confrontation. But on sort of what you might call the big building blocks of policy, a fair amount of agreement. I think what’s really interesting right now is that we sort of opened up the debate in the public about whether or not we still want to adhere to this rules-based or liberal international order that Americans created and led for the past seventy years.
FASKIANOS: Thank you. Next question.
OPERATOR: We’ll take our next question from King Fahd University of Petroleum and Minerals. Please go ahead. If you phone is on mute, please unmute it at this time.
Q: Hi. My name is Hamza Sharif (sp).
And my question is: Given that the power of Congress tends to be collective in nature, meaning that the general consensus of Congress members is required, are there any cases in which individual members of Congress can have an impact on foreign policy? And if yes, is this a good thing?
LINDSAY: It’s an excellent question. And the most immediate answer would be yes. And individuals can play an important role in a variety of ways, OK? Obviously an individual senator or an individual member of the House can’t influence policy by passing legislation. As you point out, it’s a collective endeavor. However, as you look at—particularly at senior people on Capitol Hill, but not only senior people—individuals can play an important role in changing the conversation that occurs in the United States on the issue.
Now, some members, by dint of their experience, their career, the work they’ve done, have an outsized influence on the conversation. Someone like that most recently would have been the late Senator John McCain of Arizona, who by virtue of both his biography, and his long service on Capitol Hill in the United States Senate, as someone who was an expert on foreign policy and defense issues, he could change the conversation. He could help the administration; he could hurt the administration.
Likewise, if you think of younger members—Alexandria Cortez—Ocasio-Cortez has become a national figure here in the United States. Now, most of her work hasn’t been on foreign policy specifically, but—and she has clearly shown with her social media savvy how an individual member can really change the conversation. And then you also have the heads of various committees. Whether it’s the Senate Foreign Relations Committee, the House Foreign Affairs Committee, the Senate Intelligence Committee, looking at the Armed Services Committees, those various chairs of the committees, and also chairs of the subcommittees, by virtue of their ability to investigate government, to oversee the activities of government, to subpoena either individuals or government officials, and change, shape, and direct the public conversation on foreign policy.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We will take our next question from UCLA. Please go ahead.
Q: Hi. I’m wondering how the American legal system plays into this, into foreign policy in the United States historically.
LINDSAY: OK. Well, you have—you have asked abroad question of someone who is a political scientist by training rather than a lawyer. So you might get a different answer if you were to ask a lawyer. I would say most broadly that most disputes between Congress and the president on foreign policy are about politics and policy than about the rule of law. There are certainly some cases where there are real questions about whether presidents or Congress are acting within or beyond their constitutional or statutory remit. The current controversy over the president’s declaration of an emergency on the southern border is a case in point. But a lot of the other tussles over, for example, should the United States stay in or leave the INF treaty? Should the United States extend the New START Treaty? Should the United States sanction governments for misdeeds? How much the United States should spend on foreign aid? What the United States do to combat climate change? Those are generally speaking disputes or conflicts over the substance or the politics of an issue, not over who has a legal right to do one thing or another.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We will take our next question, and that is from—we’ll go with King Fahd. Please go ahead.
Q: Here we go. Yes, this is—this is Hassan Gafani (ph) from King Fahd University.
Today public opinion does not agree with the—both the Congress and the president. What should be done in this situation?
LINDSAY: Wow, another excellent question, which really raises really deep-seated, fundamental questions about the nature of democracy or, more accurately in the American case, a representative democracy. And there are deep philosophical debates over the extent to which members of Congress should be responsive to their constituents, as doing what they think their constituents want them to do, often called the delegate theory approach to representation, versus the question to which members should be, in essence, trustees. That is, they’re elected by their constituents, but they should exercise their own good judgement because they may be privy to more information or can put issues in a broader context. So that’s a very rich question about political philosophy.
What I will note in terms of practical politics is that some members pay very close attention to their constituents or pay very close attention to their constituents on some issues because they believe those issues are very important to their constituents and, hence, important to their own chances of winning reelection. I will note that there are cases in which members of Congress have voted against their constituents interest because they judge either that they won’t be punished for doing so or they believe that the constituent view is fundamentally wrong, and so acting simply as a transition belt for public opinion would lead to bad outcomes.
The way most democracies handle the issue of a disagreement between the public and its leaders is that that is ultimately settled at election time. And that if the public is not happy with incumbents are doing in a democratic system, voters get to send those incumbents packing. And so that’s where you really see the biggest impact on the public opinion on a government body who the public chooses to lead it.
FASKIANOS: Thank you. Next question.
OPERATOR: We will take our next question from Washington & Jefferson College. Please go ahead.
Q: Hi. Cameron Lumley from Washington & Jefferson College.
Regarding U.S. aid being provided to the Saudi Arabian-led coalition against the Houthis in Yemen, what direction do you think tensions between the executive branch and Congress will take, since there is a clear difference in opinion between President Trump’s support for the Saudis and Congress’ desire to reexamine the providing of American military aid?
LINDSAY: What you are seeing play out is a specific example of a broader challenge for Congress, which is that it can generally rein presidents in only by passing legislation. That legislation is subject to a presidential veto, which means that Congress has to, in those circumstances, assemble a supermajority of voters in order to overturn the president’s decision. On the specific issue of Saudi Arabia, we had a vote in the United States Senate demanding an end to the U.S. support for the Saudi-led intervention in Yemen. It passed the Republican-controlled Senate. But it did not pass by a supermajority.
Now, under the American system, that Congress came to an end on January 3rd. So a new Congress was seated on January 3rd. And the House had its own vote. It passed, again not by a veto-proof majority. The Senate is going to vote sometime in the next several weeks. It’s unclear whether the Senate will pass the legislation again, because some of the members who voted for that legislation back in December are no longer in the United States Senate.
But even if the Senate does pass the bill, that is in essence have a law going up to the White House, the expectations are that President Trump will veto that bill. So in essence, the effort of Capitol Hill won’t change policy, unless the president calculates that the political costs to himself of maintaining that policy are simply too high. And to this point, President Trump’s actions have indicated that he doesn’t believe that it is politically damaging to him to change what we take to be his policy preferences, which has been the support for the government in Riyadh.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. Our next question will come from the University of Notre Dame.
Q: Yes. My question is about what success can Congress find in somewhat bypassing the executive branch and directly engaging with foreign leaders? I’m thinking of the example of Congress inviting Netanyahu to speak during the JCPOA negotiations, without Obama’s agreement there. Thanks.
LINDSAY: Another excellent question. The invitation to Prime Minister Netanyahu stood out because it went against what we might call sort of established norms, to do inviting a foreign leader in clear defiance of what an administration is trying to do. It highlights the difference between norms and rules. And it can be very difficult also to sort of draw a dividing line between what Congress is constitutionally allowed to do and where those run up against presidential powers. And I guess it’s a great opportunity to really block on the broader issue, which is that you have powers between the branches that overlap or can bump up against each other. That was inherent in the document the framers wrote.
And indeed, within four years of the formation of the United States under the United States Constitution, James Madison and Alexander Hamilton—two of the most influential voices in writing the Constitution—disagreed bitterly over who should prevail when the powers of Congress bump up against the powers of the presidency—the so-called Pacificus-Helvidius debate of 1793. And in essence, Hamilton position, to boil it down and oversimplify it, is that presidents should push their powers. And if Congress wants to push back, fine. But a president shouldn’t proceed from the assumption of they can’t use their powers if it somehow challenges congressional powers. James Madison made the opposing point, an opposing argument. And I think historically Hamilton’s position has prevailed as a matter of actual political practice.
And, again, if you were to go back to the House Republicans, who voted to invite Prime Minister Netanyahu, they would say they were carrying out and executing their constitutional authorities to conduct foreign policy and to contribute to the common good. Obviously folks in the Obama administration had a different point of view.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We will take our next question from Johns Hopkins. Please go ahead. Questioner, if your line is on mute, please unmute it now.
Q: Hi. This is Jonathan (sp) from Johns Hopkins SAIS in Washington, D.C.
Over the past year, the U.S. has imposed unilateral tariffs on friends and rivals alike—China, Canada, Mexico, and the EU, and Turkey. But we’ve seen little from Congress in the way of slowing this down or hitting the brakes. Would you—is it more accurate to say that Congress is unable to, or unwilling to hit the brakes on the trade wars?
LINDSAY: Thank you for the question. I would put the emphasis on unable as opposed to unwilling. And I will note that there is currently an effort in the United States Senate to pass legislation to claim back the authority that previous Congresses had delegated to the White House. And, again, the problem with that challenge—or, actually, two of them. One is that the sponsors of legislation have to come up with a bill that a lot of senators, and eventually a lot of House members, will agree with. And that’s where you get into the legitimate differences over what replacement legislation should look like. Always keep in mind that the fact that people agree on what they’re against doesn’t mean they agree on what they’re for.
So number one is you have to overcome divisions within the Senate and get agreement on what’s a good bill. And then ultimately you have to pass that. And, again, to change things, you have to overcome a presidential veto. And, again, there’s a reason why so few presidential vetoes get overridden. If a president can maintain the support of just 34 senators, it doesn’t matter what the other 501 people on Capitol Hill do. And for most presidents most of the time, they can look to their fellow party members in the United States Senate, on Capitol Hill, and expect party loyalty. Because, again, the legislators, as they vote, don’t vote on issues in isolation. They understand their own political stakes, interests are stake, their party’s interests are at stake. It’s part of a much broader web of issues that they have to calculate in dealing with things.
And I will note that—again, this takes us back to the first question about delegation. And Congress cannot run the federal government. It needs to delegate authority. And if you look at the trade legislation, which you pointed out, Congress years ago had a provision that said that emergencies might arise. And if the president thinks that national security is at risk, he can impose these taxes. Now, in writing that legislation, there was an expectation that presidents would have what we might call reasonable interpretation of what national security actually means. Congress did not define or provide objective criteria for establishing what constitutes a national emergency. And when you think about it, it is easy to see why.
You know, if you were to sit down and try to define, OK, what objectively constitutes a national security crisis or a national emergency I think we’d all be hard-pressed to come up with a workable definition. So in essence, Congress in passing this legislation said to the president: You know, I guess our expectation is that you’re going to interpret this in a fair way. Obviously with the way President Trump has used it, his critics would argue that he has stretched the meaning of the national security exception beyond the breaking point—again, on the issue of tariffs on NATO friends and allies, America’s military allies. Would note that the secretary of defense did not agree that the national security exception should have been invoked in order to place tariffs on imported steel from Canada, or from Germany, or from Britain.
But, again, these are bigger questions about how Congress can delegate in way that doesn’t give too much power to the president, because you got to think of the flipside. That is, would you want to be in a situation in which a crisis arose, the president needed to act, but the president couldn’t act because law clearly forbid the president from taking necessary steps? And that’s a tradeoff that Congress has always dealt with. And, again, keep in mind, many of these laws were passed during the Cold War, when members of Congress reasonably worried about a potential military confrontation between the United States and the Soviet Union that would require quick action by the president of the United States.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We will take our next question from St. Edward’s University Please go ahead.
Q: Hello. My question relates to mutual defense agreements and NATO. So a couple weeks ago, Nancy Pelosi went to Brussels and reaffirmed—with a congressional delegation—reaffirmed U.S. commitment to NATO and presented the resolution—or, House Resolution 676, stating that—supports NATO and Article 5. Given the potential threat that the administration has made several times that it’s dissatisfied with the allies in NATO, how can Congress ensure such an agreement when potentially the president has the prerogative to pull the United States out of NATO? Would that require Senate advice and consent on that issue? Or would the president not need that potentially in removing himself—or, removing the nation from the agreement? Thank you.
LINDSAY: That’s a wonderful question. Let me make three points in response. The first point is that the speaker of the House, other American officials, can talk about America’s commitment to the NATO alliance or to any treaty, and express their hopes that the president feels the same way. But it’s obviously the case that the president does have a plenary power to speak for the country, and that presidents can and have taken the country out of treaties that the Senate by definition has previously approved.
Second point I would make is that you asked what seemed to be a straightforward question: Who gets to decide when treaties should be cast to the curb? And particularly, who gets to decide when the United States leaves a mutual defense treaty or a military alliance? And I’m glad you asked it, because we actually have a case of this. It came in 1979 when President Jimmy Carter announced that the United States was going to leave the mutual defense treaty with Taiwan. The president did that, President Carter did that, because he hoped to, and succeeded in, establishing formal diplomatic relationships with mainland China. And it is clear that the price for doing that would be to end the formal U.S. military guarantee for Taiwan.
Opponents of the decision on Capitol Hill mobilized. Senator Barry Goldwater—who you might recall was the Republican presidential nominee in 1964. By the late 1970s he was the chairman, I believe, of the Armed Services Committee. And—or, I guess, ranking member of the Armed Services Committee. Filed suit in federal court arguing that President Carter had exceeded his constitutional authority in taking the United States out of the mutual defense treaty with Taiwan. Now, you might think this was a straight-up legal case of the Senate—excuse me—of the Supreme Court essentially calling balls and strikes and telling us what the Constitution says about who gets to make that decision.
What happened was that the court rules by seven to two that President Carter was entitled to make the decisions he did. Or perhaps, maybe more accurately, the Supreme Court ruled it wouldn’t stop him from doing so. The justices themselves actually disagreed over their legal reasoning for the decision, with some of them saying that this was really a political question, not a legal one. And I should note that the courts have what they call the political question doctrine, which says we really shouldn’t be hearing court cases that aren’t about legal issues. And it’s up to—the court gets to decide what’s a legal issue and what’s a political issue. Others arguing questions about standing.
And so that decision was handed down. In the parlance of the legal world, there was no central holding, because they justices couldn’t agree on the reasoning for why they ruled for President Carter. And as a result, it’s still an open question as to whether presidents can take the United States out of any treaty they wish, assuming there’s nothing in the treaty itself stipulating about withdrawal is handled.
Third point I would make it’s important to keep in mind that thinking about mutual defense agreements, treaties, alliances, that a formal withdrawal from an alliance is not the only way to essentially undercut that alliance. When a country that is a member of an alliance, particularly the country that founded and led that alliance, begins to doubt the value of that alliance, it effectively undercut the weight of that alliance, because alliances at their core rest on the assumption, held both within the alliance by members of the alliance and by countries outside the alliance that might become opponents or adversaries in the future, that at the moment the alliance is needed the countries that belong to it will in fact live up to the all for one and one for all principle. If countries begin to believe that members of the alliance—particularly the important member—may not be there, that really does undermine the value of that alliance. Because, again, alliances are fundamentally about deterrence.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We’ll take our next question, and that is from Lewis University. Please go ahead.
Q: Hi. My name’s Shawn (sp). I’m from Lewis University.
My question is, what are some kinds of steps that new and old House Democrats could make in terms of congressional committees and hearings to check the Trump administration’s national policy acts, such as the national emergency on the southern border?
LINDSAY: I have to apologize. I didn’t catch the first part of your question. The line broke up or I got some static. So if I could ask you to kindly repeat the question, I would appreciate it.
Q: What are potential steps new and old House Democrats could make in terms of congressional committees and hearings to check the Trump administration’s national policy acts, such as the national emergency on the southern border, with the Senate still being controlled by the Republicans?
LINDSAY: OK. My immediate response to your question is I wouldn’t focus solely on Democrats reacting the president’s decision, because there are a number of Republicans who have said publicly that they oppose the steps the president has taken because they believe he is exceeding the bounds of what either the Constitution or statute enables the president to do. Again, in—the challenge, or the avenues Congress has open to it to rein in a president that members of Congress believe have gone too far come down to direct avenues and indirect avenues. And I might also, besides indirect avenues, say hoping for somebody else to step up to the plate.
In terms of direct avenues, one way to address it—one way to address it is to pass legislation. And, again, in the case of the emergency measures, Congress could revoke that provision. The obvious problem with that is that the president almost assuredly will veto any such legislation. The second thing Congress can do is hold hearings and hope that this will mobilize public opinion and that the public will be so unhappy that the president will decide it’s in his best interests not to pursue the policy. That would be the indirect way of going about it. and the final way of going about it would be for the courts. If the courts take up legal challenges to the president’s action, and they almost certainly will, is that the courts find that what the president has done has exceeded his statutory or constitutional authority.
The issue with the courts, of course, is that it could take a while before a court case works its way up to the Supreme Court. And then the important issue will be what case makes it to the Supreme Court, and what are the issues at stake. You should not assume that because we’re talking about these issues or these potential legal challenges in the context of big questions about presidential constitutional authority or statutory authority that the courts will necessarily decide the issue one way or another on those big constitutional questions. One of the things that tends to guide the Supreme Court is to decide policy issues or court cases on narrow grounds, where they can decide on the narrow grounds. So there’s a lot we don’t know how about how the court cases will work out, since they can raise very different legal issues depending upon the specific facts of the case and who’s filed it.
FASKIANOS: Thank you. Next question.
OPERATOR: Thank you. We will take our next question from Cal State East Bay. Please go ahead.
Q: My question was—you know, we know the executive branch currently has control over the nuclear arsenal. But I was just curious about your outlook on the future evolution of the congressional control and use of nuclear weapons, especially given the context of North Korea. Thank you.
LINDSAY: OK. Excellent question. Before I answer it, just a little coda, a little add-on to my previous answer. There is one famous Supreme Court case that involved the question of whether the president had gone too far in terms of exercising his powers in foreign affairs. And that’s the so-called steel seizure case, which involved President Harry Truman back during the Korean War. President Truman had seized—ordered federal seizure of steel mills because the war was being fought. It made it to the Supreme Court. And the Supreme Court, in a very famous case, ruled against Harry Truman. So there’s a legal case. If you want to go read it, read the background, see some of the issues that were raised in that case.
In terms of congress and its relationship to nuclear weapons—I actually read a book with that title, Congress and Nuclear Weapons—the issue is that Congress has a say by virtue of its clear constitutional authority to regulate the army, navy and land forces. Congress can decide what weapons we buy, how many we buy, if we buy any at all. So Congress clearly has well-established constitutional authority to determine what the nuclear stockpile would look like.
As a practical matter, Congress is not in a position to take unto itself the ability to decide what is done with the nuclear arsenal. Now, clearly Congress has the constitutional power to declare war and issue letters of mark and reprisal. The letters of mark and reprisal refer to an old-fashioned practice in which you—a government would, in essence, authorize private individuals to go out and conduct essentially military operations, privateer operations, on its behalf. And it’s generally read by legal scholars as saying: Congress gets to decide the big wars, as well as smaller wars.
But the problem you have with Congress—and it’s struggled with this throughout the nuclear age—is that decisions about using nuclear weapons are going to be decisions in which you will have to make them in a matter of minutes. And it is impractical for Congress to insert itself in that process. And I would note that someone may say, well, we should decide or create a procedure in which the president has to consult with perhaps the leadership of Congress, even if it can’t get a congressional vote. But then you have to think through the consequences of such a change.
And if your adversaries believed that the United States couldn’t respond to a nuclear attack until Congress met or the president spoke with the speaker of the House, how would that affect the way America’s adversaries would behave? Because ultimately you wouldn’t want to create incentive for an adversary to attack, thinking, well, we can get in the first punch, a sucker punch, so to speak, and then because the United States system requires a number of steps to be taken by essentially engaging in what’s referred to in the trade as nuclear decapitation, prevent the United States from responding.
So these are really complicated issues in which sort of constitutional visions run into practical considerations and strategic calculations about how accurate—how countries will interact and behave depending on how they think other countries are going to behave.
FASKIANOS: I think we have time to squeeze in one last question. And my apologize to those who are still remaining on the line with questions.
OPERATOR: We’ll take our next question. And that is from Bowling Green. Please go ahead.
Q: Hello. My name is Zhu Forshi (ph).
And my question is about the next president after Trump. Should they attempt to retain the liberal order, or should they start a different path from the one that’s right now?
LINDSAY: Well, that’s an easy question for me to answer, because I wrote a whole book on his with Ivo Daalder called The Empty Throne. And I think that the liberal international order, even if it has been showing its age after seventy years, serves America’s economic interests, security interests, and advances its values. Now, whether or not the next president of the United States will be able to sustain, reinvigorate, what I would call build back broader and better, the literal international order is very hard to say, because, number one, I don’t know how long President Trump will be president. He may be president till 2021. He may be president till 2025. I don’t know what events will happen either inside the United States or outside of the United States. So I don’t know who the president is going to be and what the world looks like, or will look like, when the next person moves into the Oval Office.
I do think that if we see further erosion and even the collapse of the liberal international order, what I really would call the American-led order, that that is likely to be bad news for America’s security and for America’s prosperity. And if you want more on that, you can read my book, where I go on at much greater length.
FASKIANOS: Jim Lindsay, thank you very much. I think you have demonstrated why you are the leading authority on Congress and foreign policymaking in the country. So thank you very much for being with us today, and to all of you for your great questions.
I encourage you to follow Jim on Twitter at @JamesMLindsay. He also writes a blog, The Water’s Edge, which you can find on CFR.org. And he also—if he doesn’t do enough—produces or is the host of two podcasts, the President’s Inbox and the World Next Week. And, again, you can sign up for both of those on the Council’s website, at CFR.org. So I really hope that you will follow him there and tune in for his weekly analysis on various topics. He is really a wonderful analyst and writer. So I hope you will take advantage of that.
Our next call will be on Wednesday March 13at 1:00 p.m. Eastern time, with Charles Kupchan, senior fellow at CFR and professor of international affairs at Georgetown University, on the future of the European Union. So thank you, Jim, again.
LINDSAY: Well, thank you very much for having me on, Irina. Thank you for the very kind words. And I wish everybody a great rest of the semester.
FASKIANOS: Wonderful. I also hope you all follow us on CFR.org/Campus, and Twitter @CFR_Campus for information on new CFR resources, Foreign Affairs articles, and upcoming events. So thank you all again, and we look forward to your continued participation.