Chapter 28: The President’s Foreign Policy Powers

“My fellow Americans: As President and Commander in Chief, it is my duty to the American people to report that renewed hostile actions against United States ships on the high seas in the Gulf of Tonkin have today required me to order the military forces of the United States to take action in reply.”

–President Lyndon Johnson, escalating U.S. involvement in Vietnam in 1964 (1)

Commander in Chief

The president is commander in chief of U.S. military forces. This means that the president is a civilian in charge of the U.S. military. Generals and admirals must take orders from the president. Indeed, recent presidents have become quite involved in managing the armed forces. You should know these examples:

• President Harry Truman, without a congressional declaration of war, ordered American troops into battle on June 30, 1950 to defend South Korea. When General Douglas MacArthur, commander of U.S. troops in Korea, made reckless statements about bombing China and spoke to congressmen about Truman’s poor strategy, Truman relieved the general of his command. This was a gutsy move, as MacArthur was very popular in the United States—he came home to a ticker-tape parade, but most people recognized the president’s constitutional right to make that decision.
• During the Vietnam War, an undeclared war from 1964 to 1973, both Presidents Lyndon Johnson and Richard Nixon involved themselves heavily in the day-to-day tactics of our fighting forces. In fact, both men spent considerable time discussing troop levels and bombing targets with generals.
• With congressional authorization—although not a formal declaration of war—President George H. W. Bush launched an invasion of Iraq in response to Iraq invading Kuwait. Bush also then unilaterally made the decision to halt the war’s ground phase before Iraqi President Saddam Hussein was ousted.
• Following the 9/11 attacks, President George W. Bush’s administration decided to invade Iraq even though that country had nothing to do with the attacks. The Bush administration had previously invaded Afghanistan, whose Taliban regime had sheltered Osama bin Laden and the al-Qaeda network. Without a declaration of war, although with congressional support, President George W. Bush initiated a pre-emptive war on Iraq in 2003 that removed Saddam Hussein from power.

Congress has tried to restrain presidential commander in chief powers, but these efforts have not been successful. For instance, Congress passed the War Powers Resolution in 1973 over President Nixon’s veto. The Resolution stipulates that 1) presidents consult with Congress when possible before committing U.S. military forces to action, 2) forces be withdrawn after sixty days unless Congress either declares war or grants a use-of-force extension, and 3) Congress can pass a concurrent resolution ending American use-of-force at any time. All presidents of both parties have considered the resolution to be unconstitutional, but it has never come before the Supreme Court. Presidents have largely ignored the Resolution’s provisions, or at best given them lip service and went ahead and used the military however they wanted. Sometimes, these presidential dodges require ridiculously interpreting the Resolution’s language. In 2011, President Obama said his use of U.S. forces in Libya to bomb Libyan targets as part of a NATO intervention did not constitute “hostilities” and therefore the Resolution did not apply. (2) By and large, Congress has not been able to muster the political will to challenge presidents on war issues. When it does, it runs into constitutional limitations. For example, in 2019 Congress passed a bipartisan resolution to end America’s support for Saudi Arabia’s war in Yemen. President Donald Trump vetoed the resolution, and America continued to assist Saudi Arabia. (3)

Diplomatic Powers

In foreign affairs, the president has treaty power, or the ability to negotiate and sign formal agreements with other countries. President-signed treaties require ratification by a two-thirds Senate vote. Although most treaties that the president submits are ratified, there have been notable instances in which the president has failed to convince enough senators. The Treaty of Versailles, negotiated and signed by President Woodrow Wilson in 1919, officially ended World War I and created the League of Nations. The Senate refused to ratify the treaty, and Wilson suffered a stroke while trying to rally public support for it. The United States never did join the League of Nations. In 1999, President Bill Clinton could not round up enough Senate votes to ratify the Comprehensive Test Ban Treaty, which would have banned all nuclear weapons testing. The year before, Clinton also signed the Kyoto Protocol on climate change, but did not even submit it to the Senate because he knew it would not be ratified.

Because the formal treaty process is so onerous, presidents have more frequently turned to creating executive agreements, which are agreements with at least one other country’s head of state. While they are in effect, executive agreements have the same force as treaties. They do not require Senate approval, but an incoming president can stop honoring or can renegotiate executive agreements entered into by previous presidents. For example, in 2019 President Donald Trump formally announced that the U.S. was withdrawing from the Paris Climate Agreement, whose goal was to limit global temperature increases to below 2 degrees Celsius from the preindustrial average. Overall, both congressional houses are actually more involved in executive agreements, although with simple majority approval. As political science professors Glen Krutz and Jeffrey Peake put it, “In most cases, an executive agreement is pursuant to a statutory grant of power to the president or requires ex post congressional approval (through joint resolution) before the agreement enters into force.” (4) The North American Free Trade Agreement between Canada, the United States, and Mexico is another famous example of an executive agreement. As commander in chief, the president often negotiates status of force agreements—a type of executive agreement—with other heads of state in countries where the U.S. has stationed military personnel.

Another foreign policy power is the president’s ability, spelled out in the Constitution, to “receive ambassadors and other public ministers.” This means that the president, acting without Congress’ approval, has diplomatic-recognition power. When the United States “receives” the ambassador from Germany, and our ambassador presents themself to Germany’s president, then in international-law parlance, Germany and the United States have diplomatically recognized each other. The United States diplomatically recognizes most countries of the world. President Clinton re-established diplomatic relations with the People’s Democratic Republic of Vietnam in 1995 and sent Pete Peterson, a former North Vietnam POW, as our first ambassador. After Fidel Castro’s revolution in Cuba, the United States withheld diplomatic recognition from 1961 to 2015. The United States does not diplomatically recognize North Korea, although the two countries have been negotiating for years over Korean peninsula security matters. The United States does not diplomatically recognize Bhutan, which has a long-running border dispute with the People’s Republic of China.

References

1. Lyndon Johnson speechto the nation. August 4, 1965.
2. Charlie Savage, “2 Top Lawyers Lost to Obama in Libya War Policy Debate,” New York Times. June 17, 2011.
3. Ed Pilkington, “Dismay as Trump Vetoes Bill to End US Support for War in Yemen,” The Guardian. April 17, 2019.
4. Glen S. Krutz and Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements. International Commitments in a System of Shared Powers. The University of Michigan Press, 2009. Page 30.