Dangerous Gamesmanship

Illustration by Tom Bachtell

During the early nineteen-thirties, Bolivia and Paraguay fought a war over an arid borderland called Chaco Boreal. Congress passed a resolution permitting President Franklin Roosevelt to impose an embargo on arms shipments to both countries, and he did. Prosecutors later charged the Curtiss-Wright Export Corporation with running guns to Bolivia. The company challenged the resolution, but, in 1936, the Supreme Court issued a thumping endorsement of a President’s prerogative to lead foreign policy. “In this vast external realm, with its important, complicated, delicate and manifold problems,” the majority wrote, only the President “has the power to speak or listen as a representative of the nation. . . . He alone negotiates.” In this respect, the Justices added, Congress is “powerless.”

U.S. v. Curtiss-Wright Export Corp. has influenced law and the conduct of foreign policy for almost eight decades, but its admonitions have made little impression on the Republicans now on Capitol Hill. They have meddled in unprecedented fashion to undermine President Obama’s nuclear diplomacy with Iran, as he seeks—with Britain, France, Germany, Russia, and China—to cap Iran’s nuclear program in exchange for relief from economic sanctions. The most egregious example came in March, when forty-seven Senate Republicans signed an open letter to Iranian leaders, which contained a dubious analysis of the Constitution and warned the mullahs not to rely on any deal that Congress failed to approve.

Now a framework for a deal is in place, and many Democrats, such as House Minority Leader Nancy Pelosi, support Obama’s policy. Others, like Senators Tim Kaine and Michael Bennet, have pressed the call for a congressional review of a final agreement—due on June 30th—essentially on the ground that Congress should be heard. Last week, after reaching a compromise with the White House, the Senate Foreign Relations Committee voted unanimously for an act that sets prospective terms for such a review.

Is Congress within its rights to insist on a vote? The Constitution states that the Senate must approve treaties, but the Iran deal would not be a treaty; it’s a political agreement. Congress has voted on some political agreements involving nuclear issues as a matter of course. Yet the specifics of the Iran deal make it more closely resemble the scores of diplomatic bargains short of treaties that Congress has ignored, including such important arms-control deals as the one that created the Nuclear Suppliers Group. The Foreign Relations Committee act is a measured one—it may allow only for speechmaking and largely symbolic votes. That’s why the Administration went along with it. Nonetheless, it reflects a large measure of cynical partisanship.

It’s true that America’s faltering strategy in the Middle East could benefit from a more open and informed debate, but the increasing willingness of Republicans to entangle foreign policy in political gamesmanship has opened a new chapter in the fragmentation of American power. During the Tea Party era, Republicans in Congress have adapted to unbridled, grassroots-fuelled campaigning on domestic issues like Obamacare and the debt ceiling. This collapse of inhibition is now leaching into the Party’s position on matters of war and peace, from Benghazi and the Islamic State to Iran.

Last month, Senator John McCain said that Secretary of State John Kerry’s explanation of his negotiations with Iran was less trustworthy than that of Iran’s leaders. Kerry and McCain were once friendly Senate colleagues. “That’s an indication of the degree to which partisanship has crossed all boundaries,” President Obama said, of McCain’s remarks. “It needs to stop.” It probably won’t, although that may not matter in the short run. Obama is constrained by his congressional opposition, but, with less than two years left in office and no more elections to win, he is also freer to defy it.

Last Tuesday, the President informed Congress that he intends to remove Cuba from the State Department’s list of state sponsors of terrorism, a further step toward the normalization of U.S.-Cuban relations. According to the State Department, although Cuba harbors some violent fugitives, including a former Black Panther convicted of murdering a New Jersey state trooper, it no longer arms or funds terrorists. Since December, when Obama outlined steps to ease travel restrictions and other aspects of the anachronistic embargo on Cuba, he has outflanked his critics. American businesses want the embargo lifted, and many second-generation Cuban immigrants are open to policy change, as many Republicans well understand.

Obama’s announcement that he was taking Cuba off the list triggered a forty-five-day period during which Congress can vote to reverse his decision. The White House is in a position to prevail: Obama can veto any congressional resolution he doesn’t like, on either Cuba or Iran. If he does issue a veto, the White House would need the votes of only a third plus one of the members of the House or the Senate to uphold it. Still, departures in American foreign policy as momentous as making peace with the Castro regime or resetting nuclear diplomacy with Iran ought not to be constructed on narrow vote margins in Congress. U.S. v. Curtiss-Wright helped to establish what was referred to during the Cold War as the One Voice Doctrine. That is, despite shifting disagreements between Presidents and Congress, the country should seek to project unity abroad, in order to reassure allies and deter enemies. The doctrine has flaws; it can be used to rationalize an imperial Presidency during national crises, among other things. Yet cohesion in foreign policy is surely preferable to senators sending freelance missives to declared enemies of the state.

The collapse of comity and common sense in Congress is not just a fountainhead of divisive politics. It is also a threat to the Constitution. The United States, founded on the hope that its three branches of government would evolve in roughly equal states of health, is not likely to manage successfully risks on the scale of China’s rise or the Middle East’s chaos if members of Congress continue to degrade and paralyze their institution. The Edward Snowden revelations provided only the latest reminder that protecting civil rights and liberty at home requires congressional oversight of the national-security state that is well resourced, expert, and unhindered by partisan opportunism. On the present evidence, it is hard to imagine Congress meeting that burden. ♦