National Emergencies Act
According to Article II, section 2 of the constitution, the President has the power to make treaties, but these are only valid once ratified by the Senate. Executive agreements, however, permit a President to enter into secret arrangements with a foreign nation without congressional approval. After Watergate, many members of Congress argued that this was an insult and that the subversion of the treaty ratification process of the Constitution was a serious violation. Thus in 1972, The Case Act was enacted. Senator Clifford Case of New Jersey sponsored a bill that requires the executive branch to submit to the Senate, within sixty days, the final text of any executive agreement.
Even though Congress gained a significant inroad, it remained at the President’s own discretion to submit only to the Senate Foreign Relations Committee and the House International Relations Committee on a classified basis, those executive agreements he judged to possess “sensitive national security implications”15. Presidents still negotiate executive agreements and sometimes fail to comply with the Act.
A year later, in 1973, Congress enacted the War Powers Resolution. Nixon attempted to veto it, claiming the resolution was an intrusion in the presidency’s constitutional authority and a hindrance to effective decision making at a time of crisis. Congress overrode the veto and by law declared that henceforth the president could commit the armed forces of the United States in three circumstances only: (a) a declaration of war; (b) a statutory authorisation; (c) a national emergency created by an attack on the US or its armed forces.
After committing the armed forces under the third condition, the President must immediately inform Congress; and unless war has been declared, commitment is to be terminated within sixty days, with the proviso that the president may be allowed another thirty days if Congress is certified that continued use is vital to the security of the United States. A President must also consult Congress in every possible instance before sending troops abroad.
The War Powers Resolution, is not a “severe encroachment on the president’s authority”16, however. No President has ever acknowledged the constitutionality of the legislation. To cite an example, on the morning of 25 October 1983, US Marines and Army Rangers were sent to Grenada “to protect the nearly 1,000 American citizens… whose lives had been allegedly jeopardized by actions of a military junta that had gained control of the island after a bloody coup a few days earlier; to forestall further chaos; and to help in the restoration of democratic institutions in Grenada.”
The War Powers Resolution clearly stipulates that “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by circumstances.”18 There is no evidence of ‘consultation’ by the Reagan administration, however. As Speaker Thomas P. O’Neill later admitted, “we weren’t asked for advice… we were informed what was taking place.”
Thus, the invasion of Grenada can be said to teach Congress the lesson that in some situations, the political power of Congress to constrain the President through the War Powers Resolution is severely limited if it is not non-existent. As a civilian agency, the CIA is not included in the jurisdiction of the War Powers Resolution; it does not require the President to inform Congress of covert CIA operations. But abuse of intelligence and spying agencies also became a matter of congressional concern. Consequently, in 1974, Congress enacted the Hughes-Ryan Amendment placing some restrictions on covert operations by the CIA. The amendment requires the executive to advise eight congressional committees of its plans for clandestine operations.
With the exception of “necessary intelligence” gathering, it also forbids the use of funds by the CIA for such secret operations, “unless and until”, they are considered by the President as necessary to the national security, and each is reported, “in a timely fashion”, to the “appropriate committees”, the Senate Foreign Relations Committee and the House International Relations Committee inclusive.20
However, written reports are not required, and oral briefings are accepted. Also, a report, is not a prerequisite for a covert operation, so “prior notification is not a precondition to implementing the activity.”21 It is still not certain that Congress is able to fully control CIA operations, though. Moreover, Congress had already devised committees in the past to oversee the intelligence agencies, but those simply did not accomplish their tasks.
Another area in which Congress tried to reassert its authority was the budget. According to Edmund s. Muskie (1974), “Congress has seen its control over the federal pursestrings ebb away over the past fifty years because of its inability to get a grip on the overall budget, while… the executive branch has increased its power and influence.”22 In 1974, the Congressional Budget and Impoundment Control Act was designed to increase Congress’ participation in fiscal policy making for “he who controls the stream of budget making controls policymaking.” but this only represented a slight increase in the ‘power of the purse’, which Congress already had control over.
Finally, The National Emergencies Act of 1976 tried to terminate the President’s former unlimited discretion to declare a state of emergency. The act obliges the President to inform Congress in advance and specify the laws he plans to impose; and Congress will review such a declaration every six months. An emergency will terminate within a year, “unless the president informs Congress within ninety days before the end of the year that the emergency is to continue.”23 Even though emergencies last much less than they used to, the legal restrictions on the President’s authority were very vast.
By all accounts, Congress’ behaviour changed dramatically following the Vietnam War. It moved from supporting and sometimes expanding presidential powers to profoundly restricting it. In an attempt to gain greater control of the conduct over foreign policy, Congress devised a series of acts, amendments and resolutions, but all these measures failed to meet the legislators’ high expectations.
Even though some of them, such as the Hughes-Ryan Amendment and the National Emergencies Act did increase Congress’ ability to participate in foreign affairs, such an increase was somewhat minimal. Others, such as the repeal of the Gulf of Tonkin resolution were important as it represented the first of a set of congressional efforts to restore its position granted by the Constitution and the legislative veto was successfully imposed. But that was related to a single incident only and had no further effect in curbing future presidential actions. Furthermore, congressional attempts to use the veto in later incidents were restrained by the Supreme Court. The Congressional Budget and Impoundment Control Act only reasserted an existing power, whilst the War Powers Resolution, as the invasion of Grenada clearly demonstrated, seems to be completely disregarded by most presidents.
Due to its own limitations, Congress has proved far more successful in handling domestic affairs and should have learnt the lesson that the conduct of foreign policy shall, at least for the time being remain, in the hands of the executive. Perhaps, congressional influence will grow substantially in the following years, as domestic and international affairs become more interdependent as a result of globalisation. The American approach to Foreign Policy making will have to readapt and “Congress will play a key role in redefining America’s interests and strategies.”24 The question that will then be posed is how well will Congressmen handle the coming challenges, for their performance will help “shape the future of both the country and the world.”