Even if the President and the Executive (State Department, Pentagon) seem to run US foreign policy, Congress still has an important role. The President takes the lead in defence and diplomacy, particularly during crises. Congress, on the other hand, can strongly influence long-term diplomatic strategy, economic and development aid, economic sanctions and military aid. In addition to the powers of the Senate to confirm Presidential appointments and consider international treaties and the authority bestowed on it in Article 1, Section 8 of the Constitution (to collect duties,to regulate foreign commerce, to declare war…), both Houses of the Congress, with their committees and sub-committees, have budgetary and oversight control, through which they influence foreign policy. Policies are also shaped by individual members, policy caucuses and increasingly by party organisations and leadership, even more so if the majority party differs from that of the President.
Legislation
US Constitution
Section 8 ” To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Section 10 ” No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay”
Section 2 ” This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Case-Zablocki Act – USC § 112b – United States international agreements; transmission to Congress
” The Case-Zablocki Act173 was enacted in 1972 in response to congressional concern that a number of secret agreements had been entered by the executive imposing significant commitments upon the United States.174 It is the primary statutory mechanism used to ensure that Congress is informed of international agreements entered by the United States. Pursuant to the act, all executive agreements are required to be transmitted to Congress within 60 days of their entry into force.175 If the President deems the immediate public disclosure of an agreement to be prejudicial to national security, the agreement may instead be transmitted to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations. The President is also required to annually submit a report regarding international agreements that were transmitted after the expiration of the 60-day period, describing the reasons for the delay.
Although the Case-Zablocki Act originally only imposed reporting requirements with respect to executive agreements that had entered into force, the act was amended in 2004 to ensure that Congress was regularly notified regarding the status of signed agreements which have yet to enter force, as well. The Secretary of State is required to annually report to Congress a list of executive agreements which (1) have not been or are not proposed to be published in the United States Treaties and Other International Agreements compilation and (2) the United States has “signed, proclaimed, or with reference to which any other final formality has been executed, or that has been extended or otherwise modified, during the preceding calendar year.” The Case-Zablocki Act does not define what sort of arrangements constitute “international agreements” falling under its purview, though the legislative history suggests that Congress “did not want to be inundated with trivia … [but wished] to have transmitted all agreements of any significance.”
From CRS report: Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States / Michael John Garcia & R. Chuck Mason, June 7, 2012, pp. 27-28
State Department
What constitutes an “international agreement” for the purposes of triggering the Circular 175 procedure?
As explained in 22 CFR 181.3, whether any undertaking, document, or set of documents constitutes or would constitute an international agreement within the meaning of the Circular 175 procedure shall be determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs. Such determinations generally are made on a case-by-case basis. In making these determinations, the Office of Treaty Affairs will evaluate several factors described in 22 CFR 181.2, including whether the agreement is intended to be legally binding on the governments under international law.
Standing Rules of the Senate
XIV Joint resolutions, resolutions and preambles thereto
XXIX Executive sessions
XXX Proceedings on Treaties
XXXI Proceedings on Nominations
Overviews
Chapter 17: Congress / Ralph G. Carter & James M. Scott
In: Routledge handbook of American foreign policy / by Hook, Steven W.; Jones, Christopher M.. New York: Routledge, 2012.
Chapter 7: The foreign policy press : executive, Congress, intelligence / Michael Foley
In: US foreign policy / by Cox, Michael; Stokes, Doug. Oxford: Oxford University Press, 2012
pp. 295-304: Foreign and Defense Policy
In: The American Congress / by Smith, Steven S.; Roberts, Jason M; Vander Wielen, Ryan J. 2011
pp. 180-186: L’interdépendance dans la relation congrès – présidence – le cas de la politique étrangère. In:
Le Congrès des États-Unis / Gagnon, Frédérick ; Corbo, Claude, 1945- , Sainte-Foy (Québec): Presses de l’Université de Québec, 2006
Analysis
Backseat Driving: The Role of Congress in American Diplomacy / Lindsay, James M., World Politics Review (19446284). 11/19/2013, p4-4. 1p.
The article explains the function of the U.S. House of Representatives in U.S. foreign relations. The House can influence the opinions of U.S. presidents addressed to foreign governments in spite of having no main function in holding diplomatic talks, as the House can manage the federal budget and impose laws that could limit the freedom of maneuver for the U.S. president. The House can handle diplomatic affairs by rendering consultation and advice on treaties
Selling U.S. Diplomacy to Congress / Gvosdev, Nikolas, World Politics Review. 12/21/2012, p1-1. 1p.
The article focuses on a challenge of selling the value of U.S. diplomacy to an increasingly doubtful Congress that will be faced by the incoming secretary of the Department of State in the second-term administration of President Barack Obama as of 2012. It notes the failure of the Senate to ratify the U.N. Convention on the Rights of the Disabled due to concerns that it would infringe on sovereignty. It cites an issue regarding a proposal to deploy U.S. missile defense systems in Europe.
President Vs Congress in US Foreign Policy: Cooperation or Confrontation / Khan, Zahid Ali, Sabir, Munawar, Journal of Political Studies. Summer2013, Vol. 20 Issue 1, p143-158. 16p.
The powers to formulate foreign policy had been divided between the president and the Congress with an object to achieve continuity, coherence, and consistency in foreign policy. Both have opportunity to change features of foreign policy, to approach complete process and to execute and implementation of foreign policy. The formation of US foreign policy is more difficult and complex, and the support of these two branches is required for the making of strong and effective foreign policy. Check and balance is the key feature of relations between the President and Congress. This is the most important feature of the US political system in order to prevent the one organ of Government to become so powerful to impose its hegemony and the domination over the other. The dispersal of power over foreign policy puts a heavy premium on consultation, coordination, and cooperation by these two important organs of US Government
Foreign Policy Votes and Presidential Support in Congress / Mack, W.R., DeRouen, Karl, Lanoue, David, Foreign Policy Analysis. Jan2013, Vol. 9 Issue 1, p79-102. 24p.
This paper explores the role of foreign policy votes on presidential support in Congress. We postulate that a selection effect is inherent in this topic. Failing to consider that certain factors will influence whether a president takes a position on an issue in the first place can yield misleading results. For instance, presidents might not take positions during lame duck years or when their popularity is low.
Congress’ War Powers Veto: Use It or Lose It / By Geoffrey S. Corn, World Politics Review, 05 Jul 2011, Briefing
The Constitution and U.S. Foreign Policy: The President, the Congress, and the People / LARSON, DAVID
Fletcher Forum of World Affairs. Summer2008, Vol. 32 Issue 2, p143-159. 17p.
The article discusses the battle for the shape of U.S. foreign policy that exists between U.S. citizens, the President, and Congress, examining the impact of the adversarial political system in the U.S. on the discord that exists in the Constitution and the aforementioned institutions. The 2003 Iraq War illustrates the struggle for power over foreign policy, the author states. Other topics include the President’s ability to shape short-term foreign policy, humans rights as they are reflected in the Preamble to the Constitution, and the unilateral actions taken by U.S. Presidents in Korea and Vietnam.
Same Old, Same Old? Toward New Research Avenues for Scholars of US Congress and Foreign Policy / Gagnon, Frédérick1; Source:; Conference Papers — International Studies Association. 2008 Annual Meeting, p1-37. 37p.
The Hill is Alive With the Sound of Hearings / By: Norman J. Ornstein and Thomas E. Mann, Brookings Opinion, March 21, 2007
Acting on the Hill: Congressional Assertiveness in U.S. Foreign Policy / James M. Scotta & Ralph G. Carter, Congress & the Presidency, Volume 29, Issue 2, 2002, pages 151-169
Stakeholder views
Congressional Research Service Reports
Presidential Appointee Positions Requiring Senate Confirmation / Christopher M. Davis & Jerry W. Mansfield, November 25, 2013
p. 25- 29 Senate Committee on Foreign Relations
“Sense of” Resolutions and Provisions / Christopher M. Davis, March 11, 2013
“Although “sense of” proposals have no force in law, foreign governments pay close attention to them as evidence of shifts in U.S. foreign policy priorities.”
Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States / Michael John Garcia & R. Chuck Mason, June 7, 2012
“Some international security agreements entered by the United States, such as those obliging parties to come to the defense of another in the event of an attack, involve substantial commitments and have traditionally been entered as treaties, ratified with the advice and consent of the Senate.”
Senate Consideration of Treaties / Valerie Heitshusen, October 26, 2012
“The consideration of treaties and nominations constitutes the executive business of the Senate. To conduct executive business, the Senate must resolve into executive session. Senate Rule XXIX governs executive sessions, generally; Rule XXX addresses proceedings on treaties.”
The Role of the House Majority Leader: An Overview / Walter J. Oleszek, Government and Finance Division, April 4, 2006, P. 13
“Majority leaders may also be active on international issues: brokering foreign policy compromises with the White House, championing the interests of certain nations, or criticizing some foreign governments. In general, anyone who occupies the House’s number two leadership post has strengthened leverage with the White House and greater public prominence on international issues. “People are now listening to what I’ve been saying because I’m majority leader,” declared a former holder of the post”
Case law
Supreme Court Decisions
Medellin v. Texas, 552 U.S. 491, 531-532 (2008) (Dames & Moore might be relevant only in a “narrow set of circumstances,” where presidential action is supported by a “particularly longstanding practice” of congressional acquiescence).
Dames & Moore v. Regan, 453 U.S. 654 (1981) (establishing that Congress’s implicit approval of executive action… may legitimize an agreement)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“When the President acts pursuant to an express or implied authorization of Congress…).
