The Imperial Presidency Is Alive and Well

Less than a week after President Donald Trump ordered the killing of Iranian Quds Force commander Qasem Soleimani, the U.S. House of Representatives passed a resolution requiring Trump to seek congressional approval for any further military action against Iran. The Senate will likely pass a similar resolution soon, with several Republicans expected to break ranks to vote to check the president’s war-making power. And Congress is simultaneously deep in an impeachment process born of the president’s dealings with Ukraine.

One might be tempted to conclude from all this activity that the legislature is finally clawing back some of the foreign policy and national security power that it has delegated to the president over the last half century, and especially since 9/11. And to be sure, in the weeks before the Soleimani strike, the House heard testimony from a parade of diplomats and national security officials about their experiences making and defending U.S. policy toward Ukraine. The Senate held hearings on the inspector general’s report on the origins of the FBI investigation into possible links between the Trump campaign and Russian interference in the 2016 election. And Congress passed the annual defense bill as well as a trade deal to replace the North American Free Trade Agreement.

But don’t be fooled by the sudden congressional focus on foreign policy. Congress remains in a weak position to restrain the president overseas. The Democrats believe that Trump’s efforts to withhold aid to Ukraine until its government agreed to investigate former Vice President Joe Biden constituted an abuse of power and necessitated a vote to impeach the president. But the outcome of the Senate trial will reflect domestic politics, not senators’ views about legislative oversight of foreign affairs. Congress’s inability to pass a veto-proof bill to limit the president’s war powers in Iran, moreover, is one more sign that the balance of power on foreign policy isn’t shifting back toward the legislative branch.  

SHACKLES OFF  

In 1973, the historian Arthur Schlesinger, Jr., published The Imperial Presidency, detailing the gradual ascendancy of the president over Congress in the decades after World War II. The Founders assigned Congress numerous foreign policy powers, including the power to declare war and to regulate foreign commerce. But Schlesinger demonstrated that the exigencies of the Cold War, together with the president’s constitutional designation as commander in chief and legislators’ eagerness to delegate power to the executive on foreign affairs, enabled the president to use force around the globe with few constraints. This trend culminated in the 1964 Gulf of Tonkin Resolution, which gave President Lyndon Johnson virtually unlimited power to use force in Southeast Asia and resulted in the historic tragedy in Vietnam.

As the Vietnam War wound down, and the presidency of Richard Nixon entered troubled waters at home, Congress sought to reassert its foreign policy prerogatives. In 1973, it passed the War Powers Resolution (WPR), which required the president to notify Congress upon ordering troops into combat and to seek an authorization for use of military force (AUMF) if those troops remained deployed for more than 60 days (with the possibility of a 30-day withdrawal period). Nixon vetoed the resolution, but Congress overrode his veto. A year later, Nixon’s presidency ended in disgrace, and in 1975, the Senate moved to further constrain the executive by establishing what would become known as the Church Committee, after its chairman, Democratic Senator Frank Church of Idaho, to identify abuses committed by the CIA, FBI, National Security Agency, and Internal Revenue Service. Then in 1978, Congress passed the Foreign Intelligence Surveillance Act, which required the executive branch to seek warrants for wiretaps and other surveillance activities from the newly created FISA Court.

But the White House resisted these congressional efforts in the decades that followed, and federal court decisions further undermined legislative attempts to rein in the executive. A 1983 Supreme Court decision weakened a key provision of the WPR that had empowered Congress to unilaterally force the president to withdraw troops from military conflicts abroad. And when lawmakers sued the administration for alleged violations of the WPR, the courts usually rejected the cases on procedural grounds or determined that the issues were political, not judicable. In doing so, the courts made clear that they had no intention of adjudicating interbranch disagreements over the scope of the WPR. As a result, presidents were free to ignore the law or treat it as unconstitutional, advantages that only increased over time.

The 9/11 terrorist attacks only accelerated the trend toward increasing presidential war power.

If the Cold War led to the rise of the imperial presidency, the end of the Cold War left the office virtually unconstrained overseas. Without great-power competition to focus the public’s attention, Congress turned inward. Constituents no longer seemed to value expertise on foreign affairs, so new members were less likely to develop proficiency. Leading committees such as Senate Foreign Relations and Senate Armed Services held fewer and fewer hearings, thus limiting direct legislative oversight of the executive branch. 

The 9/11 terrorist attacks refocused attention on foreign policy, but they only accelerated the trend toward increasing presidential war power. Congress authorized the use of military force against those responsible for the attacks, but the same AUMF has been used to justify nearly two decades of military or related action in at least 14 countries. (Congress passed a separate AUMF in 2002 authorizing the war in Iraq.) Later, the United States engaged in a new military effort in Iraq and Syria to combat the rise of the Islamic State, also known as ISIS, but there was little congressional appetite to update either AUMF. As a result, both authorizations remain on the books for the president to invoke. Indeed, National Security Adviser Robert O’Brien asserted that the 2002 AUMF gave Trump the authority to kill Soleimani. 

A CONGRESSIONAL AWAKENING?

The 2018 midterm elections signaled a limited resurgence of interest in foreign affairs, sweeping a small group of veterans of both the CIA and the military into Congress. Other members elected in 2018 previously held positions in the executive branch. Together, these new arrivals help to restore some of the foreign policy expertise and experience that have diminished in recent decades. In September, seven of the new members wrote an op-ed in The Washington Post that reportedly helped convince House Speaker Nancy Pelosi to pursue the impeachment inquiry. Indeed, first-term Democratic Representative Elissa Slotkin of Michigan, who held a variety of intelligence and defense posts in the George W. Bush and Obama administrations, sponsored the House resolution to curb Trump’s use of military force in Iran. If this crop of first-term lawmakers secures reelection, it might be able to improve congressional oversight of national security policy in the future.

But many of the new members are from swing districts that supported Trump in 2016, and whether they will stay in Congress remains to be seen. Perhaps some will mature into national security stalwarts whose views future presidents will have to consider before making major foreign policy decisions or whose oversight will be crucial to a policy’s successful execution. Johnson co-opted Democratic Senator William Fulbright of Arkansas to get the Gulf of Tonkin Resolution passed, but as the longest-serving chairman of the Senate Foreign Relations Committee, Fulbright later held hearings that began to unwind the consensus in favor of the war. In today’s intensely partisan environment, it is difficult to imagine a senior member of the president’s party challenging the administration’s conduct in a foreign war.

Trump has demonstrated just how much power the executive has accrued.

Lawmakers still occasionally step up and act in a bipartisan fashion to constrain the president. In 2012, for example, Congress passed legislation to hold Russian officials accountable for the death of the tax law expert Sergei Magnitsky, despite the Obama administration’s concern that the bill would damage its “reset” with Moscow. Congress also adopted stricter sanctions against Russia after the 2016 election, even though Trump insisted that Moscow hadn’t interfered, and it rebuked the president over his administration’s handling of the killing of the Saudi journalist Jamal Khashoggi.

Even so, Trump has demonstrated just how much power the executive has accrued. He unilaterally imposed tariffs on adversaries and allies alike, gave Turkey a green light to invade Syria, and authorized the assassination of Iran’s most important general. After the Soleimani strike, Trump sent out a tweet that he said served “as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back.” He added that “such legal notice is not required, but is given nevertheless!”

WEAK AND DIVIDED

The last time Congress sought to reclaim power over foreign policy from the executive branch was after Watergate—and those reforms ultimately faltered. This Congress is roiled by intense partisanship and unlikely to have any more success reining in the president. The old adage that “politics stops at the water’s edge” hasn’t applied to Congress in decades—if it ever did. Party-line reactions to the president’s order to kill Soleimani illustrate the dilemma: rather than rally around the president, as members of both parties did initially after 9/11, Democrats, led by Pelosi, reacted critically to Trump’s move. In addition to asking why the president didn’t abide by the WPR requirement to notify certain lawmakers in both chambers in advance of the strike, Democrats wanted to know why the president’s formal notification after the fact was classified, preventing lawmakers from discussing the evidence publicly. Most Republicans, by contrast, quickly lined up to support the administration. Senator Mike Lee, a Republican from Utah, stood out for his criticism of the quality of the administration’s briefing on the strike. He also agreed to cosponsor the Senate resolution requiring the president to seek authorization for any further military action against Iran, but he was careful to emphasize that he was not criticizing Trump.

It is not just partisanship preventing Congress from taking more responsibility for foreign policy. Lawmakers regardless of party status are loath to leave their fingerprints on measures that limit presidential discretion in committing troops abroad, for fear of having those measures held against them down the road. Legislators also benefit from the status quo: they can lodge procedural complaints against presidents who ignore Congress when conducting military action, while still proclaiming support for U.S. troops. There have been exceptions, of course. Democratic Senator Tim Kaine of Virginia, his former Senate colleague Bob Corker, a Republican from Tennessee, and, most recently, the bipartisan group of seven House members have all pushed for a new assertion of congressional war powers. But those are the exceptions that prove the rule. And as long as lawmakers avoid these risks, the president will have a free hand to stretch existing authorities—such as the 2001 and 2002 AUMFs—beyond recognition.

During the Senate impeachment trial, Democrats will remind the American people that Trump sought to hold up congressionally legislated aid to Ukraine for his own political gain, an act that the nonpartisan Government Accountability Office argued broke the Impoundment Control Act, another law enacted in response to Nixon’s power grab in the early 1970s. But the same intensely partisan forces that have dominated Trump’s presidency will shape lawmakers’ views about removing him from office—or even restraining his scope of action. Much as we might wish them to, lawmakers are unlikely to seize this opportunity to reassert the powers entrusted to them by the framers of the Constitution.