What Do Unpopular Wars Have in Common?
Mark Twain is usually credited with coining the phrase, “History doesn’t repeat itself but it often rhymes.” The evidence to connect Twain to the quote is skimpy, but like Jeff Sommer wrote in a 2011 New York Times article, “No matter – the line is too good to resist.”
The Iran Nuclear Agreement Review Act of 2015, recently passed by Congress, seems to rhyme with two failed efforts from years ago – the Bricker Amendments of the 1950s and the Executive Agreements Review Act of 1975. Not exactly history repeating; yet, the similarities are striking. Perhaps most revealing, in all three cases Congress has reacted, on some level, to unpopular wars that undermined popular confidence in Presidential leadership.
Senator John Bricker (R-OH), like other isolationists at the time, viewed the Korean War as an abuse of executive power because President Truman committed US troops without a formal declaration of war by Congress. Isolationists had been critical of executive power wielded by FDR during WWII, especially with the Yalta Agreement, and feared that involvement in the United Nations threatened to potentially subordinate the Constitution to international agreements. Thus, Bricker proposed a series of amendments that sought to restrict the scope and applicability of treaties and executive agreements, but the effort was narrowly defeated in the Senate in 1954.
Presidential abuses of power connected to the Vietnam War led to the second major effort to restrict the use of executive agreements. Sam Ervin (D-NC), who chaired the Senate Watergate Committee and took on President Nixon over the issue of executive privilege on several occasions, led the congressional charge. He introduced legislation in 1972 that, similar to the current legislation, proposed a 60-day period for Congress to review an executive agreement, and during that period a concurrent resolution could be used to quash the agreement. The bill lacked support and Congress settled for a less forceful bill, the Case Act of 1972, which requires the President to submit all executive agreements to Congress within 60 days. However, the Case Act simply requires a sharing of information and does not authorize Congress to challenge executive agreements.
Ervin’s efforts inspired several pieces of legislation that came together in the Executive Agreements Review Act of 1975. The various bills, like Ervin’s, unsuccessfully attempted to create two mechanisms for congressional oversight: a 60-day period for review of all executive agreements, and a legislative veto through a concurrent resolution that could annul such agreements.
A Senate subcommittee conducted hearings in May 1975, about two weeks after the fall of Saigon, to discuss the constitutionality of the bills. Most of the witnesses spoke unfavorably of the legislation, including Assistant Attorney General and current Supreme Court Justice, Antonin Scalia.
While he opposed the legislation in 1975, Scalia opened the door to a different congressional approach that may have been considered recently by Congress. First, he recommended that legislation should not try to regulate all executive agreements, but instead deal with them on a case-by-case basis. A specific situation may present itself where Congress disagrees with the President, and the nature of the agreement invites congressional participation. In that case, congressional oversight may be both constitutional and prudent. Second, Scalia pointed out that a joint resolution would be a more appropriate tool to challenge an executive agreement, as opposed to a concurrent resolution or single-chamber resolution, because it allows the President an opportunity to veto the legislation, which the other two options neglect to do. Therefore, if Congress could pass a joint resolution with enough votes to override a veto, then the process would still be constitutional. The Iran Nuclear Agreement Review Act of 2015 seems to satisfy both requirements set out by Scalia in 1975.
The historical rhyme continues with the current legislation, which comes on the heels of another unpopular war, this time in Iraq, and closely resembles the debate from 1975. Passed with enough votes to override a presidential veto, the legislation guarantees Congress a 30-day period to review executive agreements connected to an agreement with Iran, along with the ability to express approval or disapproval of the agreement with a joint resolution. But in a near-complete reversal of 1975, rather than fearing Presidential action has gone too far, Congress is worried that President Obama is not going far enough. And this time, Congress successfully passed legislation to create congressional oversight of executive agreements; however, oversight exists only in this situation. Not exactly history repeating; yet, the similarities are striking.
The generational debates about executive agreements reveal a more pleasant rhyme – the democratic nature of American foreign policy. All three branches interact in the process, often in conflict with each other, and that tension drives the constitutionalism of the system. Conservatives rallied against executive power in the 1950s, liberals in the 1970s, and now bipartisanship defines the issue.
If a deal with Iran actually materializes, Congress may choose to follow the President’s lead – the recent legislation merely reserves a right for more participation. And if Congress tries to pass a joint resolution to refuse the agreement, it will be much harder to pass veto-proof legislation. Considering the important, behind-the-scenes role played by the judicial branch in its conversations with the executive and legislative branches, Scalia’s comments from 1975 may have influenced the current legislation, and may instruct future efforts as well.
In any case, the rhyming debate about executive agreements once again demonstrates that domestic politics really do impact American foreign policy, especially in the context of an unpopular war. Whether in Korea, Vietnam, or Iraq, attempts to regulate executive agreements reflect a broader, popular concern with the potential risks of using American force.