So This Is What Congress’ Getting Involved in Foreign Affairs Looks Like

Analysts and scholars have long wondered what it would look like if Congress reasserted itself in foreign affairs.  It’s a role that Just Security Founding Editor (and my former professor) Harold Hongju Koh called for, as an institutional matter, in his landmark book, The National Security Constitution.  And it’s a role that Ben Rhodes and Jake Sullivan, in the pages of the New York Times, urged the newly Democratic-led House to assume more specifically as a check on President Donald Trump.

I applauded Rhodes and Sullivan’s call, but I wasn’t sure if it would come to fruition—let alone, if it did, what effects a rediscovered congressional voice in foreign affairs might produce.  Whether for the House alone or for the Congress more broadly, it was possible to imagine several different orientations on matters of foreign policy and national security.  Perhaps Congress might serve as something of a check or brake on the sometimes-hawkish tendencies of the executive branch, injecting greater deliberation and debate before the use of military force.  Or perhaps Congress might, in its approach to foreign affairs, reflect various constituencies in the House and Senate, prioritizing the economic needs of particular states, regions, or even narrower special interests.

We’re now six weeks into the 116th Congress; and already, at least on certain foreign affairs matters, it seems as if Congress is indeed back in action. On Wednesday alone, the House passed a measure intended to halt U.S. military support for Saudi Arabia’s campaign in Yemen, while on the Senate side a bipartisan group proposed a bill to punish Russia more severely than the Trump administration has proven willing to do thus far, among other measures.  Those steps come on the heels of a flurry of other congressional activity on foreign policy, including the introduction of bills that would impose restrictions on troop drawdowns in Syria and South Korea; the requirement—still unmet by the executive branch—of an assessment as to whether Saudi Arabia’s crown prince was personally responsible for ordering the murder of journalist Jamal Khashoggi; and the demand for tougher sanctions against Russia.

So what’s the common theme among these signs of Congress’ reasserting itself in foreign policy?  They generally cut against the instincts of President Donald Trump, but that isn’t surprising: it’s precisely Congress’ growing frustration with Trump’s foreign policy that appears to be motivating this reemergence. What I find significant is how little of a common theme there is.

On Syria and South Korea, Congress is proving more hawkish (to oversimplify) than the executive branch, encouraging—at least in Syria—the continued use of U.S. military force rather than constraining it. With respect to Saudi Arabia, Congress is in a sense being less hawkish by pulling back on U.S. support—but, at the same time, Congress isn’t acting at the behest of powerful U.S. economic actors with strong interests in continued ties to Saudi Arabia. To the contrary, Congress seems genuinely motivated, in large part if not wholly, by human rights and humanitarian concerns with both Khashoggi’s killing and the widespread suffering in Yemen.  When it comes to Russia, even many Republicans on the Hill who’ve largely supported President Trump as their party’s leader are using their power to force him to take a tougher line against Moscow—despite the fact that doing so seems to hurt his political standing by spotlighting his continued coddling of the Kremlin.

All told, it seems that a Congress reengaging on foreign policy can’t be pigeonholed.  It’s not simply more hawkish or more dovish than the executive branch, or controlled by powerful domestic economic interests, or driven by partisan political considerations. It’s instead . . . complicated.  And that’s probably to its credit, given that it’s a complicated world America faces, with complicated policy tradeoffs, and with a decidedly complicated President at the helm.

To be clear, Congress isn’t suddenly assuming foreign affairs responsibility in all of the ways that some hoped. Perhaps most notably, Congress still seems to prefer to rely on the 2001 Authorization for Use of Military Force, however much the threat from al-Qaeda and the Taliban has evolved in almost two decades, rather than crafting a successor statute to address evolutions in terrorist threats such as the emergence of ISIS. What’s more, there are legal and policy complications associated with even the actions Congress has in fact taken. For example, Ashley Deeks recently explored in brilliant detail the difficult constitutional questions raised by the bills seeking to prevent U.S. troop withdrawals from Syria and South Korea. And as has been noted here at Just Security by my former White House colleagues Tess Bridgeman and Steve Pomper, Congress’s use of the War Powers Resolution to attempt to cut off U.S. support to Saudi activities in Yemen will likely be ineffective in changing the Trump administration’s actions by actually stopping that support.

But my point isn’t to suggest that Congress has lived up to all conceivable foreign policy expectations, or even to praise all of what Congress has done. It’s instead to observe that a Congress reinvigorated on matters of foreign affairs is defying simplistic categorizations or characterizations. And, as these trends continue, that fact alone should yield some important dynamics to watch—both within Congress, where the battle over when and how to check the executive branch will take place, and between Congress and the President.

 

Photo by Mark Wilson/Getty Images

 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@jgeltzer).