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0:07      KS: From the School of International Service at American University in Washington, this is Big World, where we talk about something in the world that really matters. Since the election of Donald Trump in 2016, the role and the powers of the US president have rarely been out of the news, and to say the president's foreign policy agenda has been an item of interest lately is a dramatic understatement. The founders spelled out the role of the US president in Article Two of the Constitution. The presidency also possesses powers granted by Congress, implied powers, and the soft power of the bully pulpit. However, 44 different men, and it has been only men, have held the office and each of them has arguably taken actions to change the office of the presidency.

0:48      KS: The current moment has many wishing for a return to normalcy, which got us thinking, can the modern president do whatever he wants? When the subject is the US presidency, what is normal? Today, we're talking about the role of the US president in foreign policy. I'm Kay Summers and I'm joined by Jordan Tama. Jordan is a professor here in the School of International Service. His expertise includes politics, processes, and institutions of US foreign policymaking, and presidential congressional relations. He's a prolific author with publications including a book entitled, A Creative Tension: The Foreign Policy Roles of the President and Congress. He's currently working on a book called Bipartisanship in a Polarized Age: When Democrats and Republicans Cooperate on US Foreign Policy. Jordan, thanks for joining Big World.

1:35      JT: My pleasure to be with you.

1:37      KS: Jordan, it is a truism that the American president sets foreign policy for the country, and I think a lot of people have simply taken for granted that American presidents would try to follow a set of norms or precedents, and basically that they would just try to color inside the lines on foreign policy and not break anything. But a lot has been thrown into question lately. So to get us started, tell me please, how is the American system supposed to work regarding foreign policy, and what is the difference in authority between the president and Congress in conducting foreign affairs?

2:11      JT: Many people tend to think that the president is meant to control foreign policy in the United States. I think that's a common perception that foreign policy is the domain of the president, but that's not at all how the framers envisioned the balance of powers between the two branches. So just as, in general, they wanted to create a checks and balances system so that the power of the executive, the president, would be constrained, they wanted to also have checks and balances in the area of foreign policy, and it was no different in foreign than in domestic policy. And so under the constitution, actually a lot of powers are given to Congress, more powers in foreign policy are given to Congress than to the president, and other powers are shared between the two branches. So to give some examples, Congress has the power to declare war under the constitution, but the president is commander in chief, so shared power there over war-making.

2:59      JT: The president has the power under the constitution to negotiate treaties, but treaties have to be ratified by the US Senate. Again, shared power. A lot of other powers are just given to Congress. Congress has the power under the constitution to regulate international commerce, trade, to set rules concerning the treatment of detainees. It has the power to appropriate funds. Almost any foreign policy initiative requires funding, and Congress controls the power of the purse. So quite extensive powers to Congress. But in general, I think the constitutional scholar Edward Corwin best captured what the framers envisioned when he described the Constitution as an invitation to struggle for the privilege of directing American foreign policy. Given the way the Constitution creates this system of shared powers, the real delineation of powers between the branches has really been worked out in practice over time, and there are areas where presidents have unilaterally asserted new powers, and thereby established new precedents of the president having certain powers. But in other cases, Congress has pushed back, and so there's been a kind of give-and-take over time during different periods between the two branches.

4:01      KS: I like that, the right to struggle. I think that's a good way of looking at it. The American historian, Arthur Schlesinger, published a book in 1973 called The Imperial Presidency. This is a term that dates back to the 1960s, but I think the idea of the imperial presidency has its roots in the Franklin Roosevelt administration. In your words, what is the imperial presidency? What does this mean?

4:27      JT: The imperial presidency was the notion that the presidency is exercising more power than the Constitution allows, or exceeding constitutional limits on presidential authority, and Schlesinger coined the term at a time when presidential powers seemed to just be growing and growing. This started, as you mentioned, with the administration of FDR going back to the 1930s where the growth of presidential power was mainly in the area of domestic affairs. FDR created the modern welfare state, a host of social welfare programs designed to bring the country out of the great depression that was associated with an expansion of government agencies that was quite substantial. And then during and after World War II, the federal government grew, particularly in the area of national security affairs, first to fight World War II, but then during the Cold War to battle against the Soviet Union in the Cold War. And this included the growth of a variety of new national security institutions such as the Defense Department, which was actually only created after World War II, the National Security Council, the Central Intelligence Agency.

5:27      JT: These were all created in the late 1940s and presidents began getting involved in wars that had not been authorized by Congress. The Korean war in the 1950s had not been authorized by Congress. The Vietnam war was largely not authorized by Congress. Congress had passed a somewhat limited resolution called the Gulf of Tonkin resolution in the 1960s but that was not meant to be a broad authorization for the Vietnam war, although presidents used it that way. And so there was a trend of presidents getting involved in military action without the authorization of Congress, and there were also growing patterns of intelligence agencies getting involved in activities that many people had concerns about, such as supporting the overthrow of some foreign governments.

6:11      JT: The CIA was involved in the overthrow of governments in Iran, Guatemala, Chile between the 1950s and early 1970s. CIA and FBI were involved in domestic spying on Americans. And so this kind of host of institutions growing and engaging in activities that seem to go beyond what the constitution envisioned in terms of executive authority generated this concern, and I think we should be concerned about an imperial presidency. An imperial presidency's a bad thing because our system functions best when the president is constrained by Congress, and by the courts. When the three institutions of government are balancing each other, Congress and the courts provide key checks on bad decisions, or potentially bad decisions that a president might make. It's especially important with regard to decisions to go to war where one bad decision can be tremendously costly for the United States, and for other countries, and very big mistakes are more likely to occur if one person is making decisions.

7:11      KS: And yeah, we're going to get into I think a little bit of this kind of how does gridlock affect the room that presidents and Congress have to maneuver. First, before we get to that, do you think as we sit here today in 2019 that the presidency in general has exceeded its constitutional limits, or that the president now has too much power compared to Congress? And this is regardless of who holds the office at the time.

7:35      JT: Yes. The president has clearly exceeded constitutional limits in some areas, not just our current president, but the presidency in general over many presidents. This is, I think, most evident in a couple areas of foreign policy. One being military intervention. The vision of the framers was that the United States would not go to war unless Congress had authorized this, and presidents, particularly since the end of World War II have engaged in a number of military actions that had not been authorized by Congress. Some of these were quite substantial military interventions, others were more limited ones. And even when Congress has authorized the use of force, presidents have sometimes taken that authorization, and applied it in ways that went well beyond what Congress really had in mind. So an example of this would be after the 9/11 attacks, Congress passed an authorization for the use of military force as a main response to that attack, which was really intended, and this is very clear in the text of the legislation, it was an authorization to use military force against the individuals or groups that carried out the 9/11 attacks, or other actors who might have supported, or harbored the groups that carried out the 9/11 attacks.

8:46      JT: And the actors involved there were Al Qaeda and the Taliban, the Bush administration did take that authorization as a basis for intervening in Afghanistan after 9/11, but subsequently, President George W. Bush, President Barack Obama, President Donald Trump have all said that the 2001 AUMF also justifies or authorizes the use of military force well beyond Afghanistan, against other terrorist groups, such as ISIS. So the military campaign against ISIS has been based, in a legal sense, by Obama and by Trump as being authorized by the 2001 AUMF. But that's not at all what Congress had in mind. ISIS wasn't even around in 2001, so that's an example of the presidency exceeding what the Constitution envisions.

9:30      JT: Treaties is another example of this. So under the Constitution, all international agreements are meant to be sent to the Senate for ratification. If the Senate says, "Yes," great, the US has now joined this international agreement. If not, then the US is not entering that international agreement. Every president in the modern era has negotiated a variety of international agreements without calling them treaties, and sending them to the Senate for ratification, and then having them still be treated as binding on the United States. This is in part been because presidents have made the case that, well, we can't depend on Congress to ratify these agreements, but nevertheless, it's not something the Constitution allows.

10:05      JT: A couple of examples, President Obama negotiated the Iran Nuclear Deal. That was not treated by the Obama administration as a treaty, it was an executive agreement. Even though the Senate didn't approve it, it went into effect. Paris Climate Accord, another example, Obama negotiated that just as an executive agreement, the Senate never ratified it. Trump withdrew from both of them. It would be better for Congress and the president to work out an arrangement that preserves the congressional role in having treaties go into effect. These can sometimes be very important international agreements while addressing presidential concerns about the need for quick action, and responsiveness, and that would be more consistent with what the framers really had in mind.

10:49      KS: Jordan Tama, it's time to take five. This is when you our guest, get to daydream out loud, and reorder the world as you'd like it to be by single-handedly instituting five policies or practices that would change the world for the better. Specifically, what five steps should the president and Congress take to improve US foreign policy?

11:08      JT: First, the president should return the United States to the Paris Climate Accord and lead an international effort to negotiate a new climate accord that would have stronger commitments by the US, and other countries. We need even more ambitious targets to prevent very dangerous climate change in the coming decades, and the president needs to lead that effort for the United States. Second, Congress should enact legislation that would restrict the emission of greenhouse gas emissions. This is the number one problem facing the US and the world, and the only way we can actually address this problem fully, or adequately, is to have legislation passed by Congress that sets caps on greenhouse gas emissions.

11:47      JT: Third, the president should return the United States to the Joint Comprehensive Plan of Action, the Iran nuclear deal that Obama had negotiated with Iran in 2015. Trump withdrew from this agreement. Under this agreement, the US and other powers lifted a number of economic sanctions on Iran in return for Iran accepting restrictions on its nuclear program. The president should return to this agreement, and bring Iran back into it by working with allies and partners around the world. Fourth, Congress should balance US foreign policy between the civilian and military sides of US foreign policy. In recent decades, the US defense budget has gone up very dramatically, and the civilian side of US foreign policy, the State Department, the US Agency for International Development that handles foreign assistance, they've not kept pace with military growth. We need a strong diplomacy and international development to advance US foreign policy, and improve welfare around the world.

12:46      JT: And fifth, the president and Congress together should negotiate a new War Powers Resolution. In 1973, Congress passed the War Powers Resolution and this was meant to set limits on the president's ability to use the military overseas, but that was passed over President Nixon's veto, and no president has accepted the constitutionality of that resolution. It's time for the president and Congress to sit down together and hash out a new War Powers Resolution, which would set limits on when the president can deploy the military, particularly into combat overseas, and have that accepted by both the president and Congress.

13:23      KS: That's quite a to do list. I love it. Thank you. Jordan, you touched on it, the last two presidents briefly, if we look back specifically at the last 20 years or so, just to get some more context outside of the examples that you've mentioned, maybe speaking a little more generally, how far have previous presidents, including George W. Bush and Barack Obama, deviated from the previous norm, I guess, that would have been set in the previous 20 years by Reagan, and Bush 41, and Bill Clinton. How far did they deviate from that previous norm in terms of unilateral foreign policymaking?

13:57      JT: Mostly they've continued a pre-existing trend, because this trend of unilateral policymaking spans all presidents since World War II, really. There are a number of actions that Bush, Obama, Trump have taken that deviate from the checks and balances vision of the Constitution. Some of these involved military intervention. Obama intervened in Libya without congressional authorization. Bush instituted more aggressive rules for the treatment of detainees without going through Congress. Trump has moved money from other budget accounts to try to build the border wall, even though Congress hasn't appropriated the funding for that. He also conducted a set of airstrikes in Syria after the Syrian government had used chemical weapons. But all of these are actions that are not entirely dissimilar from the trends that had pre-existed them in terms of unilateral policymaking, with the exception of moving money from the defense department for a homeland security purpose, that that is more of a departure.

15:02      JT: It's also worth noting that under all these presidents, and even under Trump, Congress has at times fought back, and so the story is more complex than just one of presidents asserting unilateral authority. Congress sometimes says, "No, we are going to assert our own authority." So Trump, for instance, wanted to slash the budget of the State Department by one third when he took office. Congress said, "No." Congress, a Republican controlled Congress before the 2018 election said, "No, we're going to maintain the budget of the State Department." And Congress did that, and Trump had to accept it. Congress, under Trump, imposed new sanctions on Russia. Even though Trump wanted to lift sanctions. Congress actually passed a law in 2017 limiting the president's authority to lift sanctions on Russia. Trump announced that he was going to pull out US troops from Syria and there were members of Congress who said, "No, this is too hasty."

15:52      JT: "We shouldn't do this so precipitously. Kurds have been our allies, we shouldn't abandon the Kurds." And then Trump kind of walked that back a bit and said, "Okay, well we'll keep some troops in Syria." So there have actually been a number of issues where Congress has pushed back against the president. That's healthy, and that's part of what the framers did envision. So I think the framers wouldn't be happy with ways in which presidents have gone beyond their authority, but they would be happy that there are times when Congress is pushing back, and kind of fighting to preserve its own authority.

16:23      KS: So let's talk a little bit more about the role of Congress, and the role that they may have played in leading us down this path. And as you mentioned, the government's frequently divided. Sometimes one party controls both houses. Sometimes it's split. It's frequently different from who holds the office of the president at the time. The political risks of crossing the aisle in Congress have increased, it seems, exponentially over the past three decades. So does this leave presidents with little choice to behave in a more unilateral way in order to get through the agenda that they were elected on, or is the idea that Congress is gridlocked, does this sometimes just serve as a convenient excuse for presidents to do whatever they want?

17:06      JT: I do think it often serves as a convenient excuse for the president, but I think Congress also bears part of the blame, and Congress needs to have responsibility itself for foreign policy. Opposition lawmakers in particular, members of Congress who are not in the president's party, sometimes oppose presidential foreign policy initiatives for partisan reasons. They don't want to give the president a foreign policy victory. Some recent examples of this, when Obama was president, he negotiated the Iran Nuclear Deal, the Joint Comprehensive Plan of Action. Every Republican in Congress opposed that in part because they didn't want Obama to have a major foreign policy achievement. Similar with the Trans-Pacific Partnership, this was a big trade agreement Obama negotiated with countries in the Asia Pacific region. It was actually consistent with Republican policy preferences because this was favored by the business community. Normally, Republicans would support something like that, but Republican support started to fade away during the 2016 election campaign in part again, because they didn't want to give Obama an achievement, a foreign policy achievement.

18:08      JT: With Trump as president, there's been some of the same dynamic. Trump renegotiated NAFTA into a new US-Mexico-Canada agreement, and there are Democrats in Congress who've been reluctant to approve that because that would give Trump a foreign policy victory, and the more members of Congress do approach foreign policy from a partisan standpoint, the more presidents will have an incentive to act unilaterally, and just try to go around Congress. I think members of Congress do need to act responsibly themselves. That does not mean Congress should always approve of what the president wants. If there are good policy reasons to oppose a presidential initiative, then members of Congress should oppose it on those grounds. But members of Congress shouldn't oppose presidential initiatives just because they don't want to give an achievement to the president.

18:53      KS: Right. It's kind of hard because I think there has been this perception that at least in foreign policy, partisanship played less of a role for Congress, but I think about voting to authorize military action in Iraq, and how Democratic candidates in particular still pay a political price for that vote, and the price has changed over the years, but it still comes up, and I'm just trying to imagine the role of the president at that point. If he or she, should it ever be she, feels that military action is necessary and confronts that kind of dynamic, sort of, what are they to do? I think it's just a really hard time when our international relations are so overwhelmed by our domestic politics.

19:38      JT: Yeah, that's right. And in 2013, Obama was considering military action in Syria, and he actually went to Congress. He said, "I want authorization from Congress for the use of military force." Which is going to be a limited use of military force because that was when Bashar al-Assad had started to use chemical weapons, and Republicans in Congress quickly kind of peeled off of support for military action in Syria. And so it became clear Congress was not going to provide this authorization. In the end, Obama worked out a diplomatic agreement with Russia where Syria agreed to give up its chemical weapons, and that averted military action at that time.

20:13      JT: But the takeaway for a president from that is, "Oh, I don't really want to go asking Congress for authorization to use military force because chances seem low that they'll approve this," and then the incentive is for the president to just ignore Congress. There may be times where the president may not take military action, but there will also be times where the president goes forward with military action and just says, "Well, forget about Congress. I'm going to do this on my own without Congress." And that's not good for our system.

20:41      KS: So if we accept this idea that this imperial presidency, this is kind of moving in this direction all along, and that really what we're in now is not some giant swing away from normal, but that we've been moving toward this, with some exceptions, as a type of a new normal all along, do you think there would ever be a way to go back to the original framers' version of the presidency and if so, would that even be a good idea at this point?

21:11      JT: Yeah, it would be a good idea. I think it's really important to have balance between Congress and the presidency in foreign policy. It would provide some more consistency in foreign policy, and ensure that we don't have huge deviations as we've had in some areas under Trump, pulling out of agreements all of a sudden, big reversals of foreign policy. But it would also just help ensure that the United States doesn't take actions that aren't really in the interest of the United States, don't really reflect US values, or universal norms because Congress can be a voice for ensuring that foreign policy choices reflect US interests and US values. What I'd say is there are a number of ways to get at this. The first point is just that elected officials should place good policy over partisan politics, if not always, at least more often.

21:58      JT: Given that those political pressures are always going to exist, what can be done is institutional reforms, or process reforms, that help to counteract to some of these political pressures. And so I'll give a few ideas along those lines. So Congress and the president could create an inter-branch consultation committee, an informal grouping of the president and key congressional leaders that meet several times a year just to kind of talk through foreign policy issues. And this would be a way just to help the relationship between the president and Congress be more constructive. It would help if Congress moved away from approving appropriations every single year. So one of the dysfunctions of our system is that Congress spends a tremendous amount of time on the annual budget, because every year it has to approve funding for all parts of the federal government. As a result, it has little time to actually look at substantive foreign policy issues. So there are some proposals to move to biennial budgeting where Congress would approve a federal budget every two years.

22:54      JT: Then there'd be a lot more time for Congress to actually focus on substantive foreign policy issues, and oversee how foreign policy is being carried out, which are really important functions of Congress. A third thing I'd suggest is a proposal that a Pete Buttigieg has made, which would be to embed a sunset provision in any AUMF legislations. We've had this example where after 9/11, Congress passed an authorization for the use of military force, which was really just designed to target Al Qaeda and the Taliban for carrying out the 9/11 attacks. But 18 years later, this is still the basis for a lot of military operations the US is involved in around the world. So going forward, whenever Congress is approving an AUMF, it could put in place a sunset provision where that AUMF phases out after three years, and unless Congress actually reauthorizes it, the authorization is taken away. Those kinds of process reforms can help address some of these problems.

23:52      KS: It's kind of crazy if you think about it. I mean, we've had tax cuts that were set to expire before and they had to be reexamined again. My credit card expires every few years, but we have this authorization of military force that never expires. It sounds like whatever else is happening, the road for moving the presidency back into more of its constitutional space runs through Congress.

24:13      JT: Yeah, that's right. The president doesn't want to give up power, so the president is not going to unilaterally hand power back over to Congress, except in areas where the president wants to pass the buck, and wants to avoid taking action. But generally, Congress has to reassert itself. Congress has reasserted itself in the past. In the 1970s when there were major concerns about the imperial presidency, Congress passed a series of laws that did reign in presidential power in a variety of areas, including in foreign policy and Congress could do that again.

24:46      KS: Right. Jordan Tama, thank you for joining Big World and helping us understand the role of the US president in foreign policy. It's been really wonderful to speak with you.

24:55      JT: Thanks so much for having me.

24:57      KS: Big World is a production of the School of International Service at American University. Our podcast is available on our website, on iTunes, Spotify, or wherever else you listen to podcasts. If you leave us a good rating or review, it'll be like a smiley face sticker on a report card. Our theme music is, It Was Just Cold by Andrew Codeman. Until next time.