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Yes, the U.S. Congress Has a Role in Foreign

Affairs
Posted by Kevin Kosar on May 14, 2015
As the U.S. Congress this week continues to debate legislation to address President Barack
Obama's proposed nuclear deal with Iran, some critics howl that the bill would usurp presidential
authority. They are very wrong.
The Iran Nuclear Review Agreement Act, or S.615, is modest. The measure, introduced by Sen.
Bob Corker, R-Tenn., sets no negotiating terms, nor does it force the president to define the deal
as a treaty subject to approval by two-thirds of the Senate. Instead, it asks the president to submit
the proposed agreement and a report to Congress, and then to permit a vote. If the legislature
approves the deal, it is done and Obama wins. If it disapproves, Obama can veto the resolution,
and Congress likely does not have the votes to override that veto. Again, Obama wins. If
Congress fails to vote within 60 days, the agreement, yet again, is approved. Once more, Obama
wins.
So what is the big deal? Some observers have gotten it into their heads that the president should
have an unfettered hand in foreign affairs.
Steve Coll of the New Yorker recently vented about a 1936 decision in which the Supreme Court
endorsed the president's prerogative to lead foreign policy. The court opined that the president
alone "has the power to speak or listen as a representative of the nation." According to Coll, the
case, U.S. v. Curtiss-Wright Export Corp., "has influenced law and the conduct of foreign policy
for almost eight decades," and modern Republicans ignore this history. "They have meddled in
unprecedented fashion to undermine President Obama's nuclear diplomacy with Iran," Coll
writes.
In fact, the president never has been the sole organ of foreign policy. The U.S. Constitution
assigns the president limited powers in foreign affairs. He may receive foreign nations'
ambassadors and ministers. He is commander in chief of the Armed Forces, but only when the
military is called into service. He also may make treaties "by and with the advice and consent of
the Senate."
By contrast, Article I grants Congress the authority to raise and support armies, to provide and
maintain a navy, and to declare war. Congress established the Department of State and the
Department of War (now the Department of Defense) in 1789. Congress funds these foreign
policy agencies, and per the Constitution it has the power to make rules for their operation. The
Senate also must approve those the president selects to head these departments and to serve in
top diplomatic positions.

The tradition of congressional involvement in foreign policy dates to the start of the republic.
George Washington came to the Senate in August 1789. He wanted, as Charlene Bickford
recounts in the latest Federal History journal, to discuss with the legislators how to proceed in
his dealings with the Cherokees, Chickasaws, Choctaws and Creeks. Washington wanted money
and specific instructions on the conditions for negotiating with the tribes. The Senate fell into
debate, and the president left, as did Secretary of War Henry Knox. A couple of days later,
Washington returned, and a mutually satisfactory arrangement was concluded.
This early instance of consultation in foreign affairs set the template for the future: Foreign
affairs was to be a collaborative effort. Both chambers of Congress have foreign affairs
committees, and the Senate's dates back to 1816. Members of Congress have been involved in
many foreign negotiations. President James Madison appointed congressmen to help negotiate
the Treaty of Ghent in 1814. Congressmen participated in the 1945 gathering that produced the
United Nations charter.
Presidents and Congress, unsurprisingly, often have found themselves at loggerheads over
foreign affairs. In the latter half of the 19th century, the Senate rejected 10 treaties. Sen. Robert
Byrd, , D-W.Va., went to Russia in 1979 while the SALT II negotiations were ongoing.
Rep. David Bonior, D-Mich., traveled along with two other congressmen to Iraq in 2002 to
denounce the Bush administration's move to war. That is the nature of things in a system where
separate branches share power.
The proposition that the president leads on foreign affairs, and that Congress should not meddle,
has matters exactly backward. The Constitution gives all lawmaking authority to Congress and
demands the president "take care the law be faithfully executed." Treaties and other diplomatic
agreements have the force of law, so Congress has every right to vote to approve their enactment.
Let it be remembered, when President Franklin Roosevelt imposed an arms embargo in 1934 that
the Curtiss-Wright Export Co. violated, he was drawing upon authority granted to him by an act
of Congress.
Kevin R. Kosar is the Director of the Governance Project at the R Street Institute, a free-market
think tank.