Sunday, 28 December 2014

Ambassador ret. Yoram Ettinger: Israel and the non-omnipotent US presidency


"Second Thought: a US-Israel initiative"

White House and Department of State officials contend that – irrespective of Congress - President Obama can apply effective diplomatic, commercial and national security pressure, coercing Israel to repartition Jerusalem, and retreat from the mountain ridges of Judea and Samaria to the 9-15 mile wide pre-1967 sliver, surrounded by the violently turbulent and unpredictable Arab Street.   

That inaccurate underestimate of the power of Congress – which has traditionally opposed pressure on Israel, echoing the sentiments of most constituents - was recently expressed by US Ambassador to Israel, Dan Shapiro: "what is unmistakable about our foreign policy system is that the Constitution provides the president with the largest share of power…."  

The assertion that US foreign policy and national security are shaped by presidential omnipotence is refuted by recent precedents and the US Constitution.  The latter was created by the Founding Fathers, who were determined to limit the power of government and preclude the possibility of executive dictatorship. They were apprehensive of potential presidential excesses and encroachment, and therefore assigned the formulation of foreign policy and national security to both Congress and the president.  Obviously, the coalescing of congressional policy among 535 legislators constitutes a severe disadvantage for the legislature.   

According to the Congressional Quarterly, the US Constitution rectified the mistakes of its predecessor, the Articles of Confederation, upgrading the role of Congress to the primary branch of the US government.  "Hence, the first article of the Constitution is dedicated to Congress. The powers, structure, and procedures of the national legislature are outlined in considerable detail in the Constitution, unlike those of the presidency and the judiciary…."

Unlike all other Western democracies – where the executive branch of government dominates the legislature, especially in the area of international relations and defense - the US Constitution laid the foundation for the world's most powerful legislature, and for an inherent power struggle over the making of foreign policy between the legislature and the executive, two independent, co-equal and co-determining branches of government.  Moreover, while the president is the commander-in-chief, presidential clout depends largely on congressional authorization and appropriation in a system of separation of powers and checks and balances, especially in the areas of sanctions, foreign aid, military assistance, trade agreements, treaty ratification, appointment confirmation and all spending.

Congressional power has been dramatically bolstered since the Vietnam War, Watergate, Iran Gate and globalization, which have enhanced the involvement of most legislators in international issues, upgraded the oversight capabilities of Congress, dramatically elevated the quality and quantity of some 15,000(!) Capitol Hill staffers and have restrained the presidency. 

However, Congress has often abdicated its constitutional power in the area of foreign policy, failing to fully leverage the power of the purse: funding, defunding and "fencing." Thus, legislators prefer to be preoccupied with domestic issues, which are the primary concerns of their constituents and, therefore, decide their re-electability. Therefore, they usually allow the president to take the lead in the initiation and implementation of foreign and national security policies, unless the president abuses their trust, outrageously usurping power, violating the law, assuming an overly imperial posture, pursuing strikingly failed policies, or dramatically departing from national consensus (e.g., the deeply rooted, bi-partisan commitment to the Jewish State). Then, Congress reveals impressive muscle as befits a legislature, which is the most authentic reflection of the American people, unrestrained by design, deriving its power from the constituent and not from party leadership or the president, true to the notion that "the president proposes, but Congress disposes."  

For example:
*On August 1, 2014, Democratic senators forced President Obama to de-link the $225mn funding of Iron Dome batteries from the highly controversial $2.7bn immigration and border security bill. 

*Since 1982 and 1999, the Senate has repeatedly refused to ratify the Convention on the Law of the Sea and the Comprehensive Test Ban Treaty.
*The January 2013 defense authorization bill tightened restrictions on the transfer of terrorists from Guantanamo to the US.  In May 2009, Majority Leader Harry Reid foiled President Obama's attempt to close down the detention camp.

*On February 17, 2011, President Obama reluctantly vetoed a UN Security Council condemnation of Israel's settlement policy, due to bi-partisan Congressional pressure.  

*In September 2012, a $450 million cash transfer to the Muslim Brotherhood regime in Egypt was blocked by Congress.

*The 2012 budget cut into Obama's foreign aid spending request by more than $8bn.

*In 2009, bi-partisan congressional opposition prevented the appointment of Chas Freeman to chair the National Intelligence Council. 
*In 1990-92, Congress approved a series of amendments, unprecedentedly expanding US-Israel strategic cooperation, despite presidential opposition.
*In 1990, President Bush failed in his attempt to cut Israel's foreign aid by 5% due to Congressional opposition.
*In January, 1975, the Jackson-Vanik Amendment was signed into law, in defiance of the president.

*Congress ended US military involvement in Vietnam (the 1973 Eagleton, Cooper and Church amendments), Angola (the 1976 Clark Amendment) and Nicaragua (the 1982-1984 Boland Amendments).

In 1991, Senator Daniel Inouye fended off Administration pressure to withdraw an amendment to upgrade the port of Haifa facilities for the Sixth Fleet: "According to the US Constitution, the legislature supervises the executive, not vice versa….” Will the 114th Congress follow in his footsteps, or will it abdicate its constitutional responsibilities?