Mired in disputes with allies from NATO to Qatar and still unable to fill out his national security team, President Trump has not inspired confidence in his ability to manage foreign affairs. This is leading to a predictable reaction on the part of Congress–the Senate in particular–which is looking to step into the policy-making vacuum.
Some senators, John McCain most prominently, have been traveling around the world to try to undo some of the damage from President Trump’s undiplomatic statements and to reassure allies from Australia to Germany that the U.S. still stands with them. Senators have just voted unanimously to affirm America’s commitment to NATO’s Article 5 mutual defense provision—something that Trump has been reluctant to enunciate. And by a vote of 97-2, the Senate voted last week to ratchet up sanctions on Russia.
The Russia bill is particularly significant. Not only does it increase sanctions on Russia’s energy sector and imposes sanctions on any entity or individual doing business with Russia’s intelligence or defense agencies, it also prevents the president from using his executive authority to lift existing sanctions on Russia. Congress would have to approve any move to relax pressure on Moscow.
This is a very unusual rebuke for a president. Congress normally designs sanctions legislation with lots of wiggle room for the executive. Little wonder that Secretary of State Rex Tillerson signaled that the administration does not support the bill as written; he is pressing the House to water down the measure to restore more of the president’s discretion. It will be interesting to see how Speaker Paul Ryan and the House leadership react to these entreaties; senators of both parties were unswayed.
And little wonder, given that Trump has shown no interest in punishing the Russians for their election-interference. Indeed, he has shown no interest in even uncovering their machinations. With the passage of the Russia sanctions bill, the Senate has delivered a resounding and bipartisan vote of “no confidence” in the president’s Russia policy, such as it is.
The question is how much further the assertion of Congressional authority might go. There is a precedent here, namely the 1970s and early 1980s, when Congress reacted to the perceived abuses of the “imperial presidency” under Lyndon Johnson and Richard Nixon by passing, as a 1987 Commentary article noted, “the War Powers Resolution (1973), the Hughes-Ryan Amendment to the Foreign Assistance Act (1974), the Clark Amendment to the International Security Assistance and Arms Export Control Act (1976), the Foreign Intelligence Surveillance Act (1978), and, of course, the five Boland Amendments to a variety of Defense Appropriation and Intelligence Authorization Acts (1982-5).” All of this legislation was designed to circumscribe the president’s discretion in foreign affairs—to make impossible another Vietnam War or another Watergate.
An early test case of whether there is a new attempt underway to limit the presidency’s powers will come when Congress must reauthorize Section 702 of the FISA Amendments Act. Section 702 grants the National Security Agency expansive authority for warrantless surveillance of foreign communications which pass through U.S.-based data networks.
Civil liberties advocates, who already curtailed the Patriot Act in 2015, are pushing to limit the NSA’s ability to gather without a warrant information on Americans who are in contact with foreign targets. The nation’s law enforcement and intelligence agencies oppose any change; they believe the authorities are needed to keep track of terrorist plots. But the privacy advocates may have gotten an unlikely assist from President Trump, who has leveled unfounded charges that the Obama administration illegally wiretapped him. There is, in fact, zero evidence that the Obama administration politicized surveillance, but the mere accusation, repeated often enough, may lead Trump and libertarian Republicans to join with liberal Democrats to curtail NSA surveillance authorities anyway.
Of course, there are sharp limits on how far this trend to rein in the chief executive is likely to go. The president still retains vast inherent power as commander-in-chief to use military force without a declaration of war. And on some of the issues where Trump is likely to do the most damage—for example, by killing free-trade agreements and imposing trade barriers—all too many members of Congress share his protectionist instincts. So don’t expect Congress to resurrect the Trans-Pacific Partnership, which Trump exited in January.
But it’s still quite possible that Trump’s presidency will lead, inadvertently, to lasting limitations on the presidency’s powers. Whether you think this is good or bad depends on how important you believe expansive executive authority to be. Normally, both Republicans and Democrats dislike executive authority only when wielded by a president of the other party. Hence Republicans, who only recently were decrying Obama’s executive orders as a blow to liberty, are now applauding Trump’s executive orders as a bulwark of liberty. But if, like Alexander Hamilton, you believe that “Energy in the Executive is a leading character in the definition of good government,” then you have cause to be concerned about the long-term impact of Trump’s presidency.