Meeting

Virtual Meeting: CFR Master Class Series With James M. Lindsay

Thursday, June 18, 2020
Lamarque/REUTERS
Speaker

Senior Vice President, Director of Studies, and Maurice R. Greenberg Chair, Council on Foreign Relations; @JamesMLindsay

Presider

Vice President, Deputy Director of Studies, and Nelson and David Rockefeller Senior Fellow for Latin America Studies, Council on Foreign Relations; @shannonkoneil

In CFR's first inaugural Master Class Series virtual meeting, James M. Lindsay discusses the role of Congress in shaping U.S. foreign policy, relationships with other countries, and America’s standing in the world.

The CFR Master Class Series is a weekly 45-minute session hosted by Vice President and Deputy Director for Studies Shannon O’Neil in which a CFR fellow takes a step back from the news and discusses the fundamentals essential to understanding a given country, region of the world, or issue pertaining to U.S. foreign policy or international relations.

O’NEIL: Great. Well, thank you. Welcome, everybody. Thank you for joining us today. And this is the first of what’s going to be a series—a CFR series that we’re calling the Master Class Series. And the idea here is throughout the summer and perhaps beyond I’m going to be joined each week by one of our senior fellows. And they are going to endeavor to get beyond the current news and really get to the fundamentals and bigger issues facing a particular country, a region, a particular issue, or a topic, and what this all means for the United States. So I hope you will be able to join us as we begin this series. Now, while obviously today is indeed a Thursday—I don’t know about you all, but I lose track of days—this series is going to be generally on Tuesday afternoons. So Tuesday afternoons 4:00-4:45 we’re going to have these each week going forward. So I hope you all will be able to join us for the whole group of them.

Now today, our inaugural meeting, we welcome and we’re very fortunate to have Jim Lindsay. Most of you know Jim Lindsay. He’s a senior vice president here at CFR. He is the director of the Studies Program. And he’s the Maurice R. Greenberg Chair. You all probably have read or I hope you’ve read—that’ll be the homework after today—this latest book that came out last year. It’s called The Empty Throne: America’s Abdication of Global Leadership. And if you haven’t yet gotten to the book, which you’re going to get to it tonight, I hope too, as you’re taking your long walks to get your exercise during our COVID times, you join him as he’s the host of not one, but two CFR podcasts that come out every week, The President’s Inbox, as well as The World Next Week.

So I am going to turn it over to him. Today’s topic is going to be the U.S. Congress and its role in foreign policy. I’m going to turn it over to him for about ten minutes to make opening remarks and thoughts, set the stage. And then we will open it up to our broader conversation. So, please, Jim, go ahead.

LINDSAY: Thank you very much, Shannon, for that kind introduction. And thanks to all of you for joining us for this conversation. I should say it’s perhaps fitting to be talking about Congress and foreign policy today. This is the 208th anniversary of Congress’ decision to declare war on Great Britain, signaling the important role Congress can play in foreign policy.

Now, Shannon noted she’s going to give me ten minutes. She’s a very strict taskmaster. So I’m going to obey that injunction. So let me just say upfront, I’m going to be skipping over many important remarks or points in my initial remarks. I’m not going to be discussing Congress’ internal operations or the incentives that members have to become involved in foreign policy. I’m instead going to focus my remarks on Congress as an institution. And even here I’m not going to lay out every caveat and exception. You can go both broader and deeper during our discussion time.

Now that I’ve given you my disclaimer, let me make five points I think everyone should know about Congress and foreign policy. The first point is perhaps obvious, but I think it’s worth making, nonetheless. And that is that the Constitution gives Congress broad powers in foreign policy. Among other things, the Constitution empowers Congress to provide for the common defense, regulate commerce with foreign nations, and declare war. And of course, the Senate must approve all treaties and ambassadorial appointments. Now, the president also has ample foreign policy powers.

I know we were all taught in our high school civics classes our system of government is based on the idea of a separation of powers, which implies a neat division of the powers among the branches. But what the framers actually created was a system of separated institutions with overlapping powers. Each branch does possess some powers the others cannot invade. Only Congress can appropriate funds, for example, and only presidents can recognize foreign governments. But on most issues both branches can claim constitutional authority to act.

Now, these overlapping or concurrent powers means that Congress creates, as one scholar famously put it, an invitation to struggle for the privilege of directing American foreign policy. Those struggles have ebbed and flowed over the course of history, a point I’ll return to in a moment. The critical point here is that while these struggles are often cast in constitutional terms, with each branch insisting the other is making a grab for power, they’re typically more of about policy and politics than about the Constitution.

Now, I’ll just mention politics. Here’s where I want to make my second point. And that is politics rarely stops at the water’s edge. And that is true today, and it has been true throughout U.S. history. The first political parties, the Federalists and the Republicans, formed during President Washington’s administration in good part because of differences over foreign policy. The intensity and venom of those political debates match or exceed anything that we have witnessed in our lifetime. And little has changed in the more than two-plus centuries since.

You might get a sense of that from something that Dean Acheson, the secretary of state who helped create what we now call the rules-based international order, once told a reviewer. And let me quote the secretary: “Bipartisan foreign policy is ideal for the executive because you cannot run the damn country under the Constitution any other way. Now, the way to do that is to say politics stops and the seaboard. And anybody who denies that postulate is a son of a blank and a crook and not a true patriot. Now, if people will swallow that, then you’re off to the races.” So I think when we look at the operation of Congress and foreign policy expecting it to be devoid of politics it’s sort of like asking a dog to purr.

Third point. Congress can influence foreign policy both directly or indirectly. And I think all of us are familiar with the way that Congress, or the Senate in the case of treaties, directly influences foreign policy. It passes laws or consents to treaties, or just as important it refuses to pass laws or to consent to treaties. So Congress over the years has imposed sanctions on the Russian government for its interference in the 2016 election, it’s restored foreign aid funding that the administration wanted to cut, and it’s funded some weapons systems and not others. Likewise, the Senate has consented to some treaties—think, New START—it’s voted down others, perhaps most famously with the Treaty of Versailles. And it has given the cold shoulder to yet other treaties. Think the Law of the Sea.

But besides sort of tackling foreign policy directly, Congress can do so indirectly. One way is by passing legislation that specifies how the executive branch is to make policy. A classic example would be the 1986 Goldwater-Nichols Act, which revamped the command structure of the U.S. military. Likewise, Congress has created a variety of offices in the State Department, think on human rights and counterterrorism. It’s specified which groups must be consulted during trade negotiations. And it’s reorganized the entire apparatus for Homeland Security.

Now, the assumption underlying all of these initiatives is the basic belief that if you change the process you’re going to change the outcomes of the process, i.e., policy. But there are also efforts by Congress to influence policy that don’t rely on the law at all but are instead focused on trying to change how issues are discussed in the broader public conversation. Now, some of these efforts might be formal institutional ones.

For example, the House or the Senate can pass their building resolutions. Individual committees can hold oversight hearings. But you also have efforts by individual legislators to try change the conversation. They do so by speeches, going on TV, leaking information—which is an old tradition in the U.S. Congress. And as Senator Tom Cotton taught us back in 2015, we can even write to foreign heads of state. And again, the assumption here on the part of members of Congress is that if you can move public opinion, whether at home or abroad, then you can also move an administration.

My fourth point is also not surprising, and that is Congress has long been losing ground to the president in having a say over foreign policy. Now, I mentioned earlier that the Constitution was an invitation to struggle—or, provided an invitation to struggle. And there certainly have been periods where Congress has held the upper hand. The second of the nineteenth century is what historians like to refer to as an era of congressional supremacy. In the 1930s Congress hamstrung FDR with neutrality legislation. And in the 1970s, Congress rebelled against what it saw as the imperial presidency.

But on balance, through all of these struggles the locus of power has continually shifted toward the White House over the past two decades, and particularly over the last three-quarters of a century. Presidents don’t always get their way, but they do so far often—far more often than not. Now there are many reasons for this. I’ll just offer up two. One is America’s rise to global power. Congressional influence on foreign policy has tended to speak when the country has wanted to distance itself from the world. In those instances, preserving presidential freedom of action matters less because presidential initiative is seen more as a threat than as a benefit.

But that dynamic reverses when the consensus is the United States should be engaged abroad. Congress needs to provide presence and both the means and the authorities to succeed. But that creates a challenge that Congress has never quite solved. How do you give presidents enough power to handle a task at hand, but not so much power that he can foil the wishes of Congress? Now, Congress can certainly impose limits on what the executive branch can do. But in an ever-changing world there are usually very good reasons to give the White House flexibility. But obviously, flexibility gives presidents room to defy congressional wishes or to act in ways Congress never intended.

President Trump’s use of national security waivers in the U.S. trade war to impose tariffs on aluminum and steel producers, and his use of emergency authorities to provide funding for the Mexican border wall are perhaps extreme examples of how presidents can rig statutes to allow them to act as they wish. But they’re not the first and they’re not the only examples of presidents looking to get around, successfully, congressional restraints.

Now, the second reason why presidents have really held the upper hand in this struggle over foreign policy is that the very presidential conception of what their constitutional powers are have vastly expanded over the course of American history. And I’ll offer two contrasting examples to make the point. If we go back to 1810, two years before the War of 1812 began, the House of Representatives passed a resolution that would have delegated the decision to go to war with England to President James Madison. He dismissed the move as unconstitutional, arguing that only Congress could take the country from a state of peace to a state of war. Now, let’s fast-forward 104 years in the wake of the North Korean invasion of South Korea. President Harry Truman decided to take the country to war without seeking Congress’ authorization.

The willingness of presidents to interpret their constitutional and their statutory authorities broadly effectively shifts the burden to Congress to stop policies that it opposes. And meeting that burden is actually easier said than done. Congress can only overrule a president by passing legislation. But as we all know, presidents can veto legislation. That effectively means the president wins the battle if he can hang on to thirty-four votes in the Senate. And again, President Trump’s veto earlier this year, a bill that would have ended U.S. involvement in the Yemen war, offers a case in point. And I will note that Congress has overwritten a presidential veto on foreign policy only twice over the last forty years.

My final point, and this is where I’ll end, is that Congress is most likely to be able to make its mark on foreign policy when the president clearly needs its consent in order to act. That’s most often the case in terms of appropriations, in terms of trade deals, and in terms of treaties. In such instances, the burden of moving legislation through Congress or the Senate, in the case of treaties, shifts from lawmakers to the president. So if we look back to the debate over the USMCA trade deal, congressional Democrats got a lot of what they wanted in the final deal because the Trump administration understood that if it didn’t make concessions the deal wouldn’t get passed.

In contrast, where presidents are free to act or the need for Congress’ consent is disputed, presidents have the advantage. The latter is clearly the case with decisions on the use of military force, where presidents for three-quarters of a century have claimed an independent constitutional authority to act and insisted that they don’t require congressional approval. Shannon, I’m going to end there. I hope I’ve have spoken neither too long nor said too little.

O’NEIL: It was perfect. And I have so many questions but I’m going to get to all of the members as well. I’m going to throw one out first and then I’m going to turn to the broader one. And just keeping you in the more historical rather than the current, which I’m sure we will get to. In your second point, where you said basically that politics doesn’t stop at the water’s edge, even though we like to say that. And you even have a blog that has that as the title, The Water’s Edge. What is your, I guess, favorite, or infamous, or famous incident where that happened and really shaped history? Is there a time when we took the politics outside and it mattered in a really important way? Which one would you single out?

LINDSAY: Well, Shannon, I have a lot of favorites, but let me talk about the one I’m sort of fixed on right now because I’m going to have a blog post about it next week, and that’s the debate over the Jay Treaty. Now, the Jay Treaty is not a treaty most Americans can recall, but it was pivotal in sort of shaping the early political debate in the United States. I mentioned earlier the divisions that formed between the Federalists and the Republicans—not the antecedents of the modern Republican Party, but the antecedents of what is now the Democratic Party.

And it had to do with a deal that John Jay, one of the authors of the Federalist Papers had negotiated with Great Britain. It was basically settling a bunch of issues both left over from the Revolutionary War, but also issues dealing with commerce and the consequences of the war between England and France. The treaty came back. President Washington didn’t particularly like it, but many people in his administration wanted it to be passed. The Senate approved it, twenty to thirty—basically, the minimum number required. But it was quite clear that the country was divided over it.

Now the Senate debate was in secret. And one of the senators so objected to it that he leaked the text of the treaty to the newspaper—local newspaper in Philadelphia, which was then the national capital. And it led to major protests around the country. And indeed in one famous incident secretary of the treasury—or, former Secretary of the Treasury Alexander Hamilton, took the stage in New York City to defend the Jay Treaty, was actually hit in the head by a rock by one of the people in the audience. And it really sort of then led to what was sort of the real big break between Washington and Hamilton on one side and Thomas Jefferson and James Madison on the other, and really led to the formation of our political structure as factions turning into parties. And it’s a very rich story. And if you read Ron Chernow’s great biography of Alexander Hamilton it goes into the story in some depth.

O’NEIL: Interesting. Great. Well, let us turn to questions from the members.

STAFF: (Gives queuing instructions.)

Our first question will come from Thomas Campbell.

Q: Hi. This is Tom Campbell at Chapman University.

And I would love to hear Dr. Lindsay’s distinction of executive agreement versus treaty, the expansion of executive agreements, it seems to me, have been sort of so broadly as to give the president an opportunity to supplant treaties. And I think perhaps the most prominent example was the recognition of the Soviet Union, the extinguishment of debts owed by the Soviet Union, and extinguishment of American claims to the Soviet Union when President Roosevelt reached an agreement—executive agreement prior to World War II. So what limits, if any, do you see placed on the executive agreement going forward?

LINDSAY: It’s a great question, Tom. And I have to note that you’re a lawyer by trade and you know these issues very, very well. But I think you make a very big point that fits into the general point I made earlier, which is that presidents have reinterpreted their constitutional authorities in ways that have given them more power. And you mentioned executive agreements. And they have proliferated since the end of World War II. Now, I will note that many, perhaps most, executive agreements are really congressional executive agreements, in that these are deals that the president negotiates pursuant to some statutory authorization that Congress has provided. But there’s a narrow set in which presidents are making executive agreements on their own initiative. And again, several of these have been litigated. You mentioned the Soviet case, which led to some significant Supreme Court cases in the 1930s.

And the real factor of an executive agreement is that it can enable a president to not have to do what the Constitution would require—or, a president’s critics would say the Constitution requires—going to the United States senate and getting approval for at treaty—again, because treaties are very difficult to pass because you require two-thirds plus one in the Senate and in many periods in American history, we’re in one now, that has become exceedingly hard to pass a treaty. And again, defenders of presidential power will argue that executive agreements have a long history, they have a great constitutional root, and so can be defended.

Now, of course, you could ask yourself, well, what is the difference between an agreement that requires a treaty, and hence the advice and consent of the Senate, and an executive agreement, which doesn’t? And no one has ever been able to really define quite well what that is. I’m reminded of a conversation that came up in the 1950s involving Senator Gillette of Iowa, who told a story that he had asked the State Department what distinguished a(n) executive agreement from a treaty and vice versa. And the response he got was: An executive agreement doesn’t require the consent of Senate and a treaty does. And Senator Gillette told his fellow senators that reminded him of when he was a boy and he asked someone how to tell a male pigeon from a female pigeon. And the answer was male pigeons are male and female pigeons are female, which wasn’t a terribly helpful answer.

O’NEIL: So, Jim, let me just ask, following on on that, so what is that mean? Because that would seem that both the president and the Congress have reasons to push forward and tell you exactly who’s the male pigeon and who the female pigeon is depending on their own interests. So where have we seen that work well or actually lead us down a path that was probably less helpful.

LINDSAY: Well, this was a major issue, Shannon, right after the end of World War II. And it led to a series of amendments often grouped under the title the Bricker Amendment, named after Senator Bricker of Ohio. And one of the aspects of the Bricker Amendment was to limit the use of executive agreements. But obviously with an executive agreement what it enables the president to do is to do things that he may not be able to persuade Congress or the Senate to do. Again, big caveat here, a lot of executive agreements are pursuant to statutory legislation. And so hence they’re really congressional legislative agreements and—or, excuse me—congressional executive agreements, and the presidents can point to statutory reasons to act.

What response does Congress have? What Congress can do, or the Senate can do in the case of treaties, is to insist that matters that should be treated as treaties are in fact treated as treaties. The problem we have in the United States Senate, of course, is that that’s unlikely to happen if the president has a minimal amount of support in the United States Senate. So Congress in that sense has a real hard time enforcing its powers as it sees it under the Constitution.

And I’ll note on that, Shannon, we used to point out—because I’m often asked, well, why hasn’t the court settled this issue? And courts generally have been reluctant to wade into these questions. I know many people have the vision of the Supreme Court as an umpire that calls balls and strikes, creating this image of the courts sort of patrolling the boundaries of the separation of powers. I think even Justice John Roberts has used the balls and strikes metaphor. But in practice, the court for a lot of reasons has tried to steer clear of these cases. It doesn’t always, but it frequently does, either arguing that there’s no legal case being presented, or the people who are filing don’t have legal standing, or the issues aren’t right for adjudication, or it’s fundamentally a political question.

And again, one great example of that came in 1979 when President Jimmy Carter terminated the mutual defense treaty with Taiwan, Republic of China, in order to recognize the People’s Republic of China. Senator Goldwater and a variety of his colleagues went to court arguing the president could not unilaterally end a treaty. Case eventually made it up. Request was heard by the Supreme Court to take the case. And the court ruled, I think it was, seven to two that it wouldn’t take the case. Now, again, that would seem to be a very question—a very real legal question. But the court didn’t see it that way for reasons having to do with rightness, and standing, and the rest.

O’NEIL: Interesting. Great, Meaghan, let’s turn back to the questions.

STAFF: Sure. Our next question comes from Peter Galbraith.

Q: Thank you for the presentation. I feel I might just say that what actually Senator Gillette said was if you thrown down some corn, and if he picks it up it’s a he and if she picks it up it’s a she.

My question goes to—I think I would argue with you that the Congress had a—continued to have a role into the ’80s, South Africa sanctions, Pressler Amendment, Pakistan. But my question to you goes to the role that members of Congress, and even sometime the staff can play, in the conduct of foreign affairs. I think this is particularly true where you’re dealing with opposition groups that for various reasons the U.S. government doesn’t deal with, whether it’s East Timor, sometimes Afghanistan, places like that, South Africa actually in the Reagan period. I wondered if you would comment on that, and not only historically but even as it might continue today.

LINDSAY: Thank you very much, Peter. And, again, thank you for refreshing my memory on the Gillette anecdote. And let me also be clear, my point is not that Congress doesn’t have a say on foreign policy or that it can’t using its tools. It most certainly can. You’re quite right holding up the sanctions that were passed in the mid-1980s on South Africa over the objections of Ronald Reagan. I think that is one of the two cases of the last forty years where a presidential veto has been overridden. But on this broader issue, you’re quite right that there are many informal things that members, and also their staff, can do. And again, this sort of falls under what I would call the indirect ways of trying to influence policy.

And I think, you know, we have a tendency in this discussion—and I’ve been guilty of it—we talk about the executive branch and we talk about Congress. But those its are really theys. And one of the very important things that has historically happened over the years is that there are members and staff on the Hill who have allies and friends in the executive branch, and vice versa. Oftentimes, obviously, if you are a president you can look around and complain: Why is it that it seems like some members of the executive branch that I oversee are very busy trying to help opponents of mine on Capitol Hill? Likewise, members go off on congressional delegations. They go to thinks like the Bilderberg conference. And they—you know, the Munich Security Conference. And they express their views for people to read and what the mood is in Congress and the rest.

So there are a variety of indirect ways. But again, I have to emphasize the indirect aspects because for all of these efforts, at the end of the day more often than not if the president does not want to yield to public pressure, the president’s going to carry the day. A good example of that might be George W. Bush’s reaction to the growing sentiment in the House and the Senate, Republicans and Democrats, back in 2006 that the Iraq War had been a mistake, that led to the Baker-Hamilton Study Group. And there were calls for withdrawing U.S. forces. And President George W. Bush responded with his famous surge. He was willing to pay the political price because he believed that the policy advice he was getting from Congress and members was wrongheaded.

So again, if presidents are able to absorb the political price, they can often override even very loud objections from Capitol Hill. That, of course, puts Congress in the position of its sort of sentiment is being listened to actually compel the president. But, again, as I’ve noted, the way to do that is through legislation. And that is a particularly steep hill to climb.

O’NEIL: Let’s take the next question.

STAFF: The next question will come from Chloe Demrovsky.

Q: Hey. Thanks so much for this.

O’NEIL: Chloe, you’re a little hard to hear. You’re breaking up on us.

Q: My question is, I guess, rather simple. Which is, do you think that the system is functional? And do you propose any sort of changes that might make it so? Thank you. I’m sorry. My question is whether or not you think the system—the structure is still functional.

O’NEIL: Great. Thank you. Go ahead, Jim.

Q: Thank you.

LINDSAY: Well, the system, I think, works. It doesn’t work as well as it could, but I don’t think there are any obvious things one can do to fix it. You know, one of sort of challenging things in Congress is—and it’s not just about foreign policy, it’s about decision making more broadly. What you’ve obviously seen has been the nationalization of both political parties. Much more homogeneity, much more party line votes, the rise of partisanship and polarization. And that in many ways makes it even harder for Congress to challenge a president, because the party members of the presidents that are on Capitol Hill are going to feel pressured to rally around the president. We’ve seen this time and time again with President Trump. We saw elements of it when President Obama was in office.

Whereas, when we had a more flexible party system, let’s say go back to the 1960s even 1970s, you know, if you were Richard Nixon, you had a number of senators up on Capitol Hill, think John Sherman Cooper of Kentucky, who would often break from Republican ranks. And so that, in essence, had important consequences that it created incentives for presidents to want to negotiate with Congress to try to reach some kind of agreement. You move to a system like we have today, where presidents feel like the party is going to sort of fall behind them in rank, it becomes a lot harder to make Congress work on these issues, as we have seen time and time again in recent years, where the House, now controlled by Democrats, takes a policy position, whether it’s on foreign policy or domestic policy, and the Senate refuses to take it up or the bill goes there to die.

Whether that’s good or bad, I’ll be quite honest, is going to lie in the eye of the beholder. I think most people when they assess Congress tend to be results oriented. One of my favorite quotes is from a former Navy secretary who said that, you know, when he was in the administration he was a strong president man. And when he was out of the administration in the opposition party he was a strong Congress man. And so I think there’s a tendency to evaluate it that way. I do think until we can break our partisanship and polarization—and again, this is true for foreign policy as well as domestic policy—it’s going to be much harder for Congress to play the kind of productive role that it can. But it’s not just up to Congress. It’s also up to presidents.

O’NEIL: So does that give presidents more or less leeway, if you have this sort of captive audience in Congress?

LINDSAY: Oh, presidents clearly have more leeway. Let’s look at the example of President Trump’s use of U.S. trade law to impose tariffs on aluminum and steel producers. This is a national security exemption. It existed—it was put in law by members because they were worried that there might be a circumstance—a war breaks out or is about to break out. We may need to be able to preserve and protect our supplies. And so they wrote an exemption. And it was treated in a particular way. And then President Trump came along, and President Trump looked at it. And now his secretary of defense said: This doesn’t meet the standards of the law, but the president doesn’t have to listen to what a Cabinet member says. That’s one of the perks of being president. And decided he was going to oppose them.

If you look over on Capitol Hill, there are clearly many Republican senators who did not like the decision. There was an effort by a number of senators to try to rewrite the rules. And it faltered on two things. One, everyone maybe agreed that they don’t like what the president did, but they can’t agree on what the fix is. But the second thing also more Republican politics, which is a number of Republican senators didn’t want to do anything to challenge the president, either because they agreed with the president or because they believed it would be not in their political interest to do so.

O’NEIL: Great. Meaghan, let’s take the next question.

STAFF: Sure. Our next question is from Josh Harlan.

Q: Hi. Josh Harlan, Harlan Capital.

I’m curious, what do you think could get us back into a place where Congress is actually using its declare war power? We haven’t declared war in a very, very long time. Even the sort of declare war-light of authorizations for the use of military force has become more and more infrequent. And one wonders if we don’t have a kind of alignment or incentives problem, because if the courts are letting Congress off the hook, and if the press is letting Congress off the hook, it’s kind pretty good for someone in Congress to say: I’m just not going to get involved until after the fact. You don’t have to take a tough position. If the war goes poorly, you can criticize. If the war goes well you can kind of pretend you were in favor of it. I mean, it’s cushy right now for people in Congress as far as this issue is concerned. How do we get back to a place where they actually have to be accountable for these issues?

LINDSAY: Well, great question, Josh. There are really sort of two elements of it. One is, how does the system really work, and what are the motives of members of Congress as they act on that? I guess I would sort of take this back to a sort of first-order question. And that is what is it that the Constitution says Congress has to do? Now it talks about declare war, but it also talks about what we call letters of mark and reprisal. Now, letters of mark and reprisal are a practice of sort of hiring private people to go out and act on behalf of presidents. Something that was falling out of use even at the time the Constitution was written. But it’s basically been taken as suggesting that the framers understood what we call perfect war or imperfect war. There’s perfect war being full-scale war and imperfect war, things short of that.

And the Constitution says nothing about what a declaration of war has to look like. It seems simply to convey that Congress has to authorize the war. Now this has led to a lot of back and forth among lawyers and historians on these scores, but I would argue that whether you’re talking about the Gulf of Tonkin resolution, or you’re talking about the 2001 AUMF, or you’re talking about the 2002 AUMF, Congress met its constitutional duty. It authorized the president to go to war.

Now, as you look at that, I think there’s a couple things to keep in mind about the actual practice of going to war. One, there’s nothing in American history to suggest that Congress is inherently more peaceful or less averse to going to war than presidents are. Indeed, if you go back through history, think of the War of 1812, which sort of a relatively reluctant James Madison signed onto because of the congressional war hawks. If you look at the Spanish-American War of 1898, which really sort of pushed on McKinley from congressional jingoes. So I don’t think it’s a case that Congress is necessarily sort of less reluctant or more peaceful.

But members of Congress also face a challenge, and that is when Congress authorizes the president to act it gets to that fundamental question: How do you empower the president to do enough, but not too much? It really becomes crystalized. And you see this in the authorizations to use military force, which is we’re going to empower the president to act when he thinks something needs to be done, but there are very good arguments of why you should not put a time limit on it. There are very good arguments that you don’t want to limit geographically. There are very good reasons why you don’t want to limit what forces can be used or what weapons can be used. So that puts Congress really in a difficult spot.

And one way to think of it is it’s really hard to drive from the backseat of a car. And that’s really sort of the challenge that members put up. Now, presidents are often frustrated because of what you pointed out, Josh, which is Congress, like the American public, can change its mind. The Iraq War was popular with the American public, certainly polled over majority in 2003 and certainly after the initial successes. And over time it became unpopular. And Congress also turned against it. But again, this is where we got to be really careful with our language, the Congress that was elected in 2006 was very different than the Congress that had been elected in 2002.

And again, presidents have often had to deal with, as LBJ once phrased it, you want Congress in on the takeoff, so they’ll be around for the crash landing in foreign policy. But the reality is, Congress has the option of a parachute, to change its mind and say: This is not working. Which I think is something that’s always frustrated presidents.

O’NEIL: Let’s take the next question.

STAFF: Our next question will come from Lee Cullum.

Q: Thank you very much. Shannon, I’m so happy you’re doing this. I look forward to tuning into more. And, Jim, so good to hear you.

I tuned in a little late. Have you talked about the War Powers Act? I would love to be reminded about its origins and also its fate.

LINDSAY: Happy to talk about the War Powers resolution. Good to hear your voice, Lee. Hope things are well down in Dallas.

Obviously, the War Powers resolution, which was passed over President Richard Nixon’s veto, reflected sort of the depth of sentiment in the United States Congress that something was out of whack on the war powers front, was an effort to try to sort of make a square circle. On the one hand, it’s a law that tries to empower the president to act to meet the challenges all the members could sort of see out there, but to prevent him from doing things Congress wouldn’t want him to do. And I think the record of the War Powers resolution is that it hasn’t worked terribly well. The historian Arthur Schlesinger dismissed it as a toy handcuff.

It certainly hasn’t limited presidents from using military force, as we’ve seen in a number of occasions. Again, part of the challenge is that presidents and their lawyers will insist, and have insisted, that the president has independent war-making authorities that Congress by statute cannot intrude upon. But even on the simple way the War Powers resolution was set up where presidents can act for sixty days, which can be pushed out to ninety days. You know, presidents can act, that they have statutory authority to act, this is something that’s pre-delegated.

Now, of course, you can get legal arguments going back and forth. And in fact, we have. But reality is the war powers resolution has not really locked down or returned to Congress the war power. But again, I would note that the major uses of military force certainly over the last twenty years have been authorized by Congress. We can argue about whether they were wisely authorized, or they were rushed authorizations, or they were too expansive. But I think you can argue that in fact they had legal bearing in that constitutional burden.

O’NEIL: OK. Let’s take another question.

STAFF: Our next question will come from Anand Toprani.

Q: Professor Lindsay, back during impeachment Garry Wills wrote a really interesting piece for the New Yorker sort of tackling—dismissing the myth of co-equal branches of government, saying that the structure of the Constitution as written and the intention for the founders in the Federalist Papers clearly indicated the Congress was meant to be the dominant branch of government relative to the executive. His argument implies that the reason why Congress has been unable to exercise its—the power that the framers intended it to have is due to political partisanship. I mean, do you see political partisanship and the hardening of partisan identities and boundaries in ways that are sort of heretofore unseen in American history, do you see that as an un-insuperable barrier to Congress serving as an effective check to the president, precisely because they would require a two-thirds majority to overcome any veto?

LINDSAY: That is an excellent and rich question, Anand. And I would just say that I share overall Garry Wills’ assessment of what the framers thought they were creating when they met in Philadelphia in 1787. I would also note that does not end the discussion, because it became quite clear very early on that the framers didn’t actually agree on what this handiwork was that they created. The end of this month will be the 227th anniversary of the famed Pacificus-Helvidius debate that was between Pacificus, Alexander Hamilton, and Helvidius, James Madison, over the very simple question of whether the President of the United States could declare the country neutral in a war that had broken out between France and England.

What I will note is Hamilton, and the positions he took as Pacificus, often were in direct opposition to what he wrote in the Federalist Papers. Now, you may say, pshaw, why is Hamilton a hypocrite? I will also note that James Madison the following year, particularly in the debate over the Jay Treaty, also reversed his position on some fundamental issues of constitutional structure. And then of course you have two-hundred-plus years of historical practice. And you can—unless you are a strict originalist who believes everything was settled in the summer of 1787 or in subsequent amendments, you know, life to some extent has put a gloss on the Constitution and changed our understanding of what powers are.

And that’s why, again, lawyers and legal historians can get into a lot of arguments over this. But I do think, you know, on the issue of partisanship, yes, partisanship makes it harder for Congress to operate—whether it’s domestic politics or foreign policy. Congress for many years succeeded because the parties themselves weren’t nationalized, they weren’t homogenized. They were more sort of aggregates of parties. And I think possibly, you know, for most of the post-World War II era, up until the twenty-first century, you really had northern Democrats and southern Democrats. You had the Republican Party. You had northeast liberal Republicans—so-called Rockefeller Republicans in opposition, let’s say, to Goldwater.

When you get into a situation in which in essence parties are unified—now, this is actually something a lot of political scientists in the ’50s and ’60s thought would be a really good idea—what you end up with is it doesn’t really work in this system because in essence it prevents any real flexibility. And I think, again, the brilliance of the American system is the ability to reach compromise. And if parties dig in and don’t wish to compromise, you’re going to get what we currently have, which is frequently gridlocked and a lot of partisan rancor.

O’NEIL: Great. Well, Jim, we’re going to ask you to indulge us with two more minutes. We’re going to take one more short question here. So go ahead, last question.

STAFF: Sure. Our last question will be from Brendan Shields.

Q: Hey. This is Brendan from the House Foreign Affairs Committee.

First of all, thanks for your podcasts. Really enjoy those. But one of the issues we haven’t really talked about is the—I guess awakening in America the true threat and understanding of the Chinese Communist Party and their kind of global malign influence. You know, whether it’s—a conversation we’d had two years ago would be quite different, but with Hong Kong, Uighurs, NBA, and COVID coverup, I think there’s a different reality and hopefully a good bipartisan one at that. Thinking about that, what do you think maybe is the top one or two things Congress or the administration can do to try and best address this challenge?

LINDSAY: That’s an excellent question, Brendan. Let me simply note that when you talk about sort of the mood on Capitol Hill vis-à-vis China, and I would say also congressional attitudes toward Russia, here’s where you see a place where the—where the Congress can actually act because whereas in most other issues you have very deep political divides that inhibit the ability to work together on China and on Russia, there has been a consensus. So for example, I mentioned earlier that Congress had passed resolution—or, had passed legislation imposing sanctions on the Russians for their interference in 2016.

When we talk specifically about, you know, what advice for Congress on China—and I think here’s—you get to the fundamental challenge Congress faces. To a great extent much of what needs to be done in terms of dealing with Beijing has to, by necessity, be handled by a president. There’s obviously going to be diplomacy that has to be conducted. Congress cannot conduct diplomacy. I think the challenges or issues that Congress can play a role and has to think about is, number one, what is our strategy, particularly our military strategy but not only military strategy, in East Asia? What kind of military do we need for that war? Likewise, I think Congress has to think long and hard about what does our foreign economic policy look like?

As you know, Brendan, the Obama administration negotiated the Trans-Pacific Partnership, probably more so as a strategic initiative and less as an economic one, on the theory that if you can find countries to the United States through this new trade deal, which would have taken up 40 percent of the global economy, they would have created this great counterweight that the Chinese would have to respect and adapt to. So I think those are the big issues where Congress can usefully weigh in. And what I hope Congress would do is use its oversight hearings to thresh through these issues, because they’re actually very big ones.

And we often have a tendency in our political debate to want to come down to have simple answers. And I hate to say it, but foreign policy is complex. You should read my boss’ book, Richard Haass’ book, The World: A Brief Introduction. He introduces a lot of that complexity. But I think Congress has to recognize and deal with that complexity.

Finally, let me just say, Brendan, thanks for the shoutout on the podcast.

O’NEIL: (Laughs.) Well, Jim, thank you from all of us for giving a definitive master class. I know much more about the U.S. Congress, its history, and where we’re going in foreign policy. I’m not sure all that makes me feel better, but I feel more informed. (Laughs.) I hope all of you’ve enjoyed it.

If you have, we’re going to have our next one next Tuesday at 4:00 p.m. Alice Hill will be joining us to talk about climate change issues. So please come back. And all of you please virtually join me in thanking Jim today. (Applauds.)

LINDSAY: Thank you, Shannon. (Applauds.)

(END)

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