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The Presidency in International Affairs (.pdf)
This chapter considers the President as the United States’ Chief Diplomat and Commander in Chief, the constitutional powers that make them pre-
Learning Objectives: After reading this chapter, you should know the following:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors…
[H]e shall receive ambassadors… (Article II, §2 & 3, U.S. Constitution).
The constitutionally granted powers cited in this snippet from Article II of the U.S. Constitution—the power to make treaties with other countries, and the powers to appoint ambassadors to other countries and receive ambassadors from them—together make the President the U.S.’s Chief Diplomat, its representative to the rest of the world. While Congress—particularly the Senate—does have some power to check the President in foreign affairs, in general “his position is paramount, if not indeed dominant.”1 Congress tends to be deferential to the President in foreign affairs (although not invariably so).
Head of State and Head of Government
The President’s role as Chief Diplomat incorporates both the Head of State and the Head of Government roles. Presidents speaking to other countries stand within their Head of State role because represent the whole of the United States, not just the party to which they belong or those citizens who represent them—they are the personification and embodiment of American sovereignty. No other person in or out of government can lay claim to this status; if the President chooses not to speak to the world, the U.S. is silent.
But as Chief Diplomat presidents also must play the role of Head of Government, because as the chief executive—the official head of the executive branch agencies (the bureaucracy)—they must oversee and manage the Department of State, the U.S.’s diplomatic agency, and they also must engage in extensive policymaking about how the U.S. will act with or toward other countries. While many of these policies will require congressional action to make effective (by approving and providing funds for them), the President’s pre-
The Constitution gives the President, and only the President, the power to negotiate treaties, but to take effect treaties must be approved by a 2/3 vote of the Senate, , a super-
However, the Constitution speaks not only of Senate consent but of advice and consent, and while Presidents have no constitutional duty to take the Senate’s advice, as a pragmatic matter they may not be able to ignore it, because the 2/3 supermajority requirement for Senate approval is such a high bar. Senators also want to have influence, and there are several ways in which they try to pressure a President to listen to their advice: 1) by serving as part of the negotiating team; 2) by providing input during the negotiation process; 3) through approval with amendent. In the case of Woodrow Wilson’s League of Nations Treaty—which he saw as the crowning achievement of his life—the Senate wanted some of their members to be part of the negotiating team, and were offended when Wilson refused to invite them.5 Fully aware of this, President Truman included Senators on the U.S. team when negotiating the creation of the United Nations after World War II.
Senators—at least those on the relevant committees—also like to be kept informed of the state of the negotiations, which allows them to register concerns so that they can be addressed prior to the conclusion of negotiations, when changes may be harder to make; getting their information from the press, after it’s been made public, rather than directly from the President’s office prior to becoming public, can anger them. Finally, rather than reject a treaty, the Senate can approve it conditionally, subject to amendments that satisfy Senators concerns, forcing the President to either return to the negotiating table or give up on the treaty.
In lieu of negotiating formal treaties presidents often take the easier path of executive agreements, an agreement between the U.S. President and the head of another country. Under international law these have the same binding power of treaties, but under U.S. law they are considerably weaker than treaties. The Supremacy Clause of the U.S. Constitution (Article VI) makes Treaties part of the supreme law of the land, whereas executive agreements are more akin to executive orders or agency rule-
Although an old practice, the use of executive agreements expanded dramatically after World War II, as the U.S. moved out of its traditionally isolationist foreign policy and into a leadership role in world affairs. This required the U.S. to enter into ever more international agreements, and created pressure for a more efficient process than the constitutional process of treaty approval. While presidents sometimes use executive agreements so they can avoid the challenges of achieving a 2/3 majority in Congress (where a President’s political party rarely has such an advantage), this unilateral approach accounts for only about 5% of all international agreements. Over 80% of all international agreements are “congressional-
Appointing and Receiving Ambassadors
Another important aspect of the President’s Chief Diplomat role is the power to appoint and receive ambassadors. In some respects this is just a procedural task—the U.S. has diplomatic negotiations with almost every country in the world, and each President gets to replace the preceding President’s ambassadors with his own (although each appointee must be approved by the Senate), and other countries also occasionally replace their ambassadors to the U.S. But this power can have very important policy implications because it enables the President to determine whether the U.S. will recognize another country or not. Because the U.S. is so powerful, this recognition can play an important role in determining whether that other country is recognized by yet other major countries—that is, whether it will be treated as a country in world affairs or not. For example the U.S. encouraged the region of Panama to break away from Colombia in 1903, and immediately recognized its independence, giving it legitimacy, as a means of gaining approval to build the Panama Canal.
Similarly, in 1948 Jews in Palestine declared a new independent country of Israel, carved out of a portion of territory Great Britain controlled following World War I. Britain had made various conflicting promises to Jews and Arabs in the region, leading to frustration on both sides. U.S. President Truman granted diplomatic recognition to Israel within a half hour, instantly giving the Israeli claims a legitimacy they would not have had if the U.S. had ignored them. In contrast, the U.S. refuses to recognize claims of independence for the Palestinian areas around Israel, so while Palestine is recognized by other Arabic states it is not generally treated as its own country in international affairs.
An even more significant example is the U.S. choice of which of the competing governments of China to recognize. After World War II, a civil war in China resulted in Mao Zedong’s communists winning control of the mainland, while Chiang Kai-
Presidents also use a lack of diplomatic relations to signal extreme displeasure with another country, even if it does not affect that country’s recognition by the rest of the world. For example the U.S. canceled diplomatic relations with Cuba in 1961, when the new communist government of Fidel Castro expelled American diplomats. This freeze in relations continued even after the dissolution of the Soviet Union, Cuba’s patron state, in 1991, and diplomatic relations were only successfully restored in 2015 by President Barack Obama. The United States also broke off diplomatic relations with Iran after protestors seized the U.S. embassy and took Americans hostage, and despite the recent executive agreement on nuclear weapons, the two countries remain without formal diplomatic relations. The U.S. also has no diplomatic relations with North Korea, and in 2014 closed its embassy in Syria and expelled Syrian diplomats from the U.S. in response to the Syrian civil war.
The President can also use the prestige of the U.S. to shape relations between other states to the advantage of the U.S. As an example, after Israel and Egypt had fought several wars within a quarter century, in 1978 Jimmy Carter invited the leaders of both countries to Camp David, the presidential retreat, to try to work out a peace agreement. Because of their hostilities neither country was willing to initiate peace talks, but each was willing to accept the invitation of the U.S. Although the talks nearly broke down multiple times, requiring Carter to go back and forth between the cabins of the Israel and Egyptian leaders to persuade them to not give up, ultimately they were successful, and the peace agreement reached has now lasted for over 35 years, and remains effective even through the recent revolution in Egypt.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States (Article II, §2, U.S. Constitution).
The Congress shall have power…To declare war…To make rules for the government and regulation of the land and naval forces (Article 1, §8, U.S. Constitution).
In a role related to being the country’s Chief Diplomat, the President is also Commander-
The Constitution’s appointment of the President—an elected civilian—as the Commander-
The President’s authority as Commander-
Congress also has the authority to declare war, which theoretically constrains presidents from using the military until Congress has decided to authorize action. In practice, successive presidents have managed to wrest the warmaking power away from Congress, and although the U.S. has engaged in numerous wars in the past 70 years, Congress has not formally declared war since WWII, and in every case where they have passed a resolution authorizing military action—a step that falls just short of actually declaring war—they have done so in reaction to a President taking the initiative to send troops into action. By taking the initiative, Presidents set the policy agenda and put the pressure on Congress to rubber-
Congressional Responses to Presidential Initiative in Warmaking
Presidents taking initiative in warmaking is not new—President James Polk initiated the Mexican-
Congress’s attempts to reign in the President’s usurpation of the warmaking power have been ineffective. In response to Johnson’s misleading of Congress in the Vietnam War, it passed the 1973 War Powers Resolution, requiring presidents to notify Congress within 48 hours of committing troops to military action, and putting a 60 day limit (plus another 30 days for troop withdrawal) on such action unless Congress declared war or otherwise authorized the use of force. Despite hopes that this would help Congress regain control of the warmaking power, presidents have since then continued to strengthen their near-
The Framers of the Constitution thought they were setting the institution of Congress against the institution of the presidency. But in fact each Congressmember is generally more concerned about their own district and their own party more than they are concerned about the interests of Congress as an institution, because defying the interests of their constituents can cost them re-
War and Diplomacy
Although distinct on paper, the roles of Chief Diplomat and Commander-
Although most diplomacy occurs in the absence of any threat of war because it occurs between countries pursuing a mutually agreed upon goal (and mostly haggling over the details), when countries have conflicting goals, the threat of military action is at least in the background, and sometimes very much in the forefront, of the discussion as a possible policy action if a satisfactory agreement is not reached. For example the recent agreement between the U.S. and Iran limiting Iran’s development of nuclear weapons took place with a backdrop of the recent U.S. invasions of two of Iran’s neighbors and American foreign policy hardliners talking seriously about the possible necessity of also invading Iran.
At the same time the prospect of war can put limits on diplomatic opportunities. In 2014 Russia occupied and annexed the Crimean peninsula, internationally recognized as territory of Ukraine. Although U.S. President Barack Obama protested the action, the prospects for any diplomatic solution were dim because of the risk of war. Although the U.S. and its NATO allies had the military capacity to drive Russia out of Crimea, the costs of war with another major power, and the potential for it to spread into a broad regional or even world war, made the costs too high. And absent a credible threat, the U.S. had little to offer Russia diplomatically to entice them to leave.
Ultimately, as Chief Diplomat and Commander-
The Framers of the Constitution certainly intended the President to take the leading role in in representing the United States to other countries, giving him the authority to negotiate treaties, to appoint ambassadors (or not) to other countries, and to receive (or not) other countries’ ambassadors, as well as to be Commander-
1. Rossiter, Clinton. 1956/1960. The American President, 2nd ed. New York: Mentor Books. p.28.
2. United States Senate. “Pending.” http://www.state.gov/s/l/treaty/pending/.
3. United States Senate. “Treaties.” http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm
5. United States Senate. “Senate History 1878-
6. Krutz, Glen S. and Jeffrey S. Peake. 2009. Treaty Politics and the Rise of Executive Agreements: International Commitments in a System of Shared Powers. Ann Arbor: University of Michigan Press. p.30.
7. Fisher, Louis. 2003. “Deciding on War Against Iraq: Institutional Failures.” Political Science Quarterly 118(3): 389-
8. von Clausewitz, Carl. 1966. On War, v.1. Translated by Col. J. J. Graham. London: Routledge and Kegan Paul. p.23.
9. Ibid. p.2.
Ratification of Treaties
Technically, the Senate does not ratify treaties, although that phrasing is commonly used. The Senate “consents” (approves of) treaties, and the ratification occurs when the instruments of ratification—documents signed by the Head of State or other appropriate government official—are exchanged between the ratifying countries. Treaties can be, and occasionally have been, approved by the Senate but never ratified