One of Spoiler Alerts’ running themes in recent years has been the ways in which the executive branch has learned to bypass Congress on foreign policy, and how that has vested a disturbing amount of power into the office of the president. This has come through in recent discussions of just how much damage Donald Trump could wreak on the country and the world if elected.
A natural response to this is to call for Congress and President Obama to restore the balance of power between legislative and executive branches. Constitutionally, this sounds like a great idea, something that would forge a powerful consensus between small-government conservatives on the right and foreign policy doves on the left.
There’s just one teensy, tiny problem with this idea: It would give Congress greater responsibility over foreign policy, and Congress doesn’t handle foreign responsibility terribly well.
For the latest example of legislative fecklessness, let’s turn to the Justice Against Sponsors of Terrorism Act (JASTA), a bill that allows 9/11 families to sue the government of Saudi Arabia for any culpability it had in those terrorist attacks. Back in the spring I blogged about how, regardless of its emotional power, this bill wasn’t a very good idea. Since then, well-respected international lawyers have said the same thing in greater detail. The British government pointed out that the bill “could allow hostile states to take legal action against the U.S. and allies such as Britain.”
So it’s not surprising that Obama vetoed the bill, warning that JASTA would, “among other things, remove sovereign immunity in U.S. courts from foreign governments that are not designated state sponsors of terrorism.” But for the first time in Obama’s presidency, Congress overrode his veto in bipartisan fashion, turning JASTA into law.
Hooray for congressional power! Sure, Arab governments did not react well, but overriding that veto must have felt damn good!
And now we get to the morning after, in which Congress realizes what it has done. From the Hill’s Jordain Carney:
Senate Majority Leader Mitch McConnell (R-Ky.) opened the door Thursday to changing legislation that allows families of 9/11 victims to sue Saudi Arabia in U.S. court.
“I do think it’s worth further discussions, but it was certainly not something that was going to be fixed this week,” he told reporters when asked about a push by some senators to tweak the measure.
Across the Capitol, Speaker Paul D. Ryan (R-Wis.) agreed that Congress may need to “fix” the legislation, but said he wasn’t sure when that would happen.
Huh, that’s weird. Why fix something that was passed in the teeth of a presidential veto? Bloomberg News’s Steven Dennis and Billy House elaborate:
Both House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell said that the measure could have unintended consequences — including the fact that it could leave U.S. soldiers open to retaliation by foreign governments …
Before the vote, senior administration officials warned lawmakers of this exact problem — that weakening the concept of sovereign immunity could backfire if foreign countries tried to do the same for the U.S. Secretary of Defense Ash Carter sent House Armed Services Chairman Mac Thornberry of Texas a letter saying that could potentially expose Americans to lawsuits and “an intrusive discovery process” even if the U.S. is ultimately found not to be responsible for a particular event.
But Republicans said the White House didn’t make a forceful case, putting themselves in the awkward position of blaming the president for a bill they enacted into law over Obama’s veto.
So, basically, Congress’s excuse is that they didn’t realize that the president was seriously opposed to JASTA despite the fact that he vetoed it, publicly articulated why he vetoed it and personally warned congressional leaders about the implications. And so a stupid bill that adversely affects American national interests is now law.
When it comes to Congress and foreign policy, here’s the spoiler alert: Members of the legislative branch want recognition without responsibility. They want the biggest, bulliest pulpit they can find, so they can pound their fists, decry all of America’s enemies and then pass legislation that makes them feel good. Then they want the president to be the grown-up in the room and shoulder all the responsibility and blame. God forbid they actually exert power over the executive branch, because that’s how policy own-goals like JASTA get turned into law. In essence, Congress wants to be the Lieutenant Weinberg of foreign policy.
This is not a new trait of Congress. A deeply flawed law like JASTA just brings the problem to the fore. This is why, over the years, Congress has voluntarily ceded swaths of authority in areas like foreign economic policy to the president. And this worked out mostly fine, because presidents have been willing to be the grown-up in the room and occasionally take actions that were politically unpopular but the right thing to do.
As of now, there is a — checks FiveThirtyEight — 1-in-3 chance that the next U.S. president will possess the emotional and intellectual maturity of a 7-year-old. If the president can’t handle a crisis, Congress might have to shoulder a greater burden of responsibility. The saga of JASTA is a stark reminder that Congress is woefully unprepared to be a responsible actor in foreign policy.
Or, to put it in Aaron Sorkin-like language: