Congress as Foreign Relations Actor (Pathological Strain)

by Peter Spiro

On top of everything else, Congress now threatens to severely restrict official contacts with Iran.  This from Heather Hurlburt at Democracy Arsenal:

If you’re too transfixed by the prospect of the US losing its seat on the IAEA board of governors, losing Japanese funding through UNESCO for police training in Afghanistan, and potentially losing global patent protection, all over the Palestinians’ effort to join the UN and an outdated 1994 law, you’ll miss the fun of a new Iran bill coming through the House that apparently attempts to catch what international cooperation the 1994 law may have missed.

The bill bars US diplomats from even talking to their Iranian counterparts without prior certification by the President and notification to Congress 15 days in advance.  Imagine if JFK had had to tell Congress before he called the Soviets during the Cuban missile crisis.  More to the point, US and Iranian diplomats have been sharing a conference room discussing the political future of Iran’s neighbor Afghanistan this week.  The New York Times reported that the Administration had quietly reached out to Iran to attempt to bring it into a political discussion around Afghanistan’s future stability.  No more of that.

And a report on FP’s The Cable predicts “a massive withdrawal” from international organizations pursuant to the legislative restriction on top of the UNESCO case as Palestine secures membership in others.

The question is, how to rein Congress in?  The courts have been useless (although the Jerusalem passport case has the potential at least to bring them back into the picture), and obviously Congress doesn’t do the president’s bidding on hot-button foreign policy issues (that is the problem).

Perhaps there is some way of externally disciplining Congress when it gets out of hand on these fronts.  Some sort of shaming?  The more international actors come to recognize that Congress is the problem, the more likely a form of directed opprobrium will emerge.

UPDATE:  In the comments, Jennifer points to this very interesting OLC opinion concluding that even funding-framed legislative restrictions on participation in UN activities are unconstitutional. The same reasoning would apply to the proposed Iran bill.  Less likely that it would extend to the UNESCO episode (and Obama isn’t going to take it there in any case).

http://opiniojuris.org/2011/11/02/congress-as-foreign-relations-actor-pathological-strain/

7 Responses

  1. Response…
    U.S. v. Curtiss-Wright Export Corp.

  2. The US Congress is inherently dysfunctional. It can’t be fixed without fundamental reform to campaign finance and the electoral college. It would also help if political discourse was radically improved. Of course, none of that is even remotely likely except campaign finance reform at the margins. The system is broken and cannot be fixed.

  3. @Jordan: I don’t see how that works. In Curtiss-Wright, Congress and the President agreed. As far as I can tell, the only way to reign in Congress is to ignore it unless it can use the purse strings to make its “requests” stick. In that case, there’s nothing much to be done.

  4. @Martin: Curtiss-Wright nevertheless will form part of the basis for ignoring the law, even if purse-strings are pulled. See http://www.justice.gov/olc/2009/section7054.pdf

  5. Besides the legal issue here, the question is, why the US has to withdraw from the International organizations, but not Israel. Unless some members of Congress feel that Israeli interests come first, not the US’s.

  6. Response…
    Martin: the dicta in Curtiss-Wright — that “the Presient alone” is the one who speaks, listens, negotiates for the U.S., the “sole organ,” the “sole representative”
    Yes, in the actual circumstance Congress had delegated power to the President to create federal criminal law. 

  7. That seems like a pretty inane bill even by present standards.

    That does not, however, excuse the tendentious alarmism in the quoted excerpt. The best example:
    Imagine if JFK had had to tell Congress before he called the Soviets during the Cuban missile crisis.

    One tries to imagines rather how this is an argument against the proposed bill. If anything it rather suggests that emergency contact will not be affected. Unless the Bill also proposes to repeal the Constitution.

    Also, the Afghani discussions were presumably mooted with the President and House/Senate FRCs more than 15 days previously; ‘certification’ would be barely a grain of sand in the existing processes. So that too is hardly a compelling counterexample.

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