Part I. Introduction
The question for this essay is whether or not President Obama abused or exceeded his Constitutional authority with respect to foreign policy. This is an important question for a number of reasons; most significant among them is that the extent of Presidential foreign policy authority is a topic of frequent debate. This is especially true with respect to President Obama. Because 6 of President Obama’s 8 years were spent with an opposition-controlled Congress, President Obama resorted to so-called “executive agreements” in order to complete some critical parts of his agenda (e.g. the Paris Agreement). This position paper adopts the stance that the use of those executive agreements, even in cases that would ordinarily warrant a treaty instead, is not an abuse of Constitutional authority but rather is a perfectly permissible way to carry out foreign policy.
Part II. Argument
In order to determine whether any President has abused or exceeded the boundaries of his Constitutional authority, it is first necessary to resolve the threshold question of what that authority is. Generally speaking the President, as Chief Executive, is limited to the role of implementing decisions that have been made by Congress. By way of example, the President and the agencies that he leads may act with very broad discretion, so long as that discretion is conferred upon them by Congress. Congress could establish that the IRS, for instance, may prosecute violators of the Income Tax Act, or it could establish that the IRS shall prosecute such violators. In the first case, the IRS has considerable discretion, and the President does not exceed his Constitutional authority if he instructs the IRS not to prosecute violators. In the second case, the IRS (and the President) has considerably less discretion, and a blanket refusal to implement the will of Congress would likely be an abuse of the President’s authority. In such a case, the courts would likely permit so-called “mandamus relief” — in other words, they would say that a clear violation of the Executive Branch’s obligations warrants requiring, under pain of contempt of court, that the Executive Branch fulfill its legal duties. In fact, there have been Supreme Court cases clearly expressing this principle: that when the President acts in disagreement with the policy expressed by Congress, his powers are sharply limited; when he acts where Congress has declined to voice an opinion, he may fully exercise his own inherent powers; and that when he acts in agreement with Congress, he may even exceed his ordinary inherent powers.
But with respect to the President’s foreign policy powers, things are not so clearly defined. The President has very broad authority to command the ship of State with respect to its relationships with foreign nations. This authority is not due to any act of Congress; rather, it is an inherent Constitutional power. There are a number of reasons for this. One of the most important reasons is that the effective prosecution of a strategy of foreign affairs requires continuity of purpose for a period of many years (for instance, imagine how different trade negotiations might be if they were carried out by a committee that was re-elected every two years, as Representatives are). Another critical reason for the President’s authority to conduct foreign policy with little interference is that foreign policy often requires the use of highly confidential information (for instance, intercepts from spy agencies) that, although it is released to legislative committees (e.g. the House Intelligence Committee), could not be released to the entire Congress to allow them to make fully-informed foreign policy decisions.
A third important reason that the President has such broad authority is that negotiations require that the negotiator be totally aware of what the party he represents values and what is not actually important. By way of example, consider the negotiations for NAFTA or the Trans-Pacific Partnership. Imagine that negotiators were sent by Congress rather than by the President. First, such negotiators would be given a list of goals based on what Congress could agree on, but could not possibly be given a list of how important those goals were relative to each other. It would be impossible for the negotiator to predict what he could compromise on, and to what degree, if he was concerned with having his decisions ratified by more than 500 legislators. Second, it would be impossible to keep the negotiator’s instructions secret, especially when the parties negotiating with the United States had the money and motive to obtain that information however necessary.
The final reason that the President has such broad power is that foreign policy very often requires quick action in order to be effective. Imagine the President’s response to a tragedy in another country. Imagine how much less effective that would be if it had to wait a week for the legislature to pass a resolution authorizing the President to send his condolences and offer support.
For all of these reasons, the President has enormous authority with respect to foreign policy. One power that he does not have is the power to irrevocably or commit the United States to a long-term course of action. In other words, the President can enter into agreements with other nations, but unless Congress ratifies those agreements and makes them into treaties, they are made with the understanding that a subsequent President can terminate the country’s involvement and participation in those agreements. A recent example of this is the Paris Agreement on climate change and clean energy. President Obama did not exceed his Constitutional authority with respect to the Paris Agreement because it was not a treaty; it was an “executive agreement.” Similarly, President Trump did not exceed his Constitutional authority when he exited the Paris Agreement; without Congressional support, Obama had no power to bind future Presidents to agree with or support his foreign policy decisions.
One area where President Obama’s actions were of dubious constitutionality was with respect to his military policy. As with his predecessor in office, George Bush, President Obama liberally deployed US troops and military assets (drones, planes, and ships) to interfere in foreign conflicts, very often without any declaration of war. However, although this may be against Constitutional principles of separation of powers, President Obama’s actions were clearly Constitutional. This is because Congress, in the aftermath of the 9/11 terrorist attacks, gave the President very broad “war powers,” broad enough to permit him to deploy troops essentially however he liked.
Another example of President Obama’s adherence to the limits on his Constitutional foreign policy powers was his compliance with the Iran Nuclear Agreement Review Act. The purpose of the Nuclear Agreement Review Act was to force the President to, upon coming to an agreement with Iran concerning sanctions, enforce that agreement strictly while Congress reviewed it. This could, depending on one’s view about the limits of the President’s Constitutional foreign policy authority, constitute an unjustifiable interference by the legislative branch with the affairs of the executive branch. That President Obama complied with this legislation, rather than challenging it in court or simply refusing to comply, is a strong indicator that his administration was conscientious about keeping to the limits of Constitutional foreign policy authority rather than abusing it or testing its limits.