29 Августа 2017 г. 12:28

Ex-congressman: President Trump has too many powers to be checked by Congress for long

Ex-congressman: President Trump has too many powers to be checked by Congress for long
Donald Trump, President of the USA
Фото: pjtsu.com

The sanctions bill signed by the US President Donald Trump on the 2nd of August was unusual in a number of ways. Not only Congress grabbed initiative in the matters of foreign policy of the country – it also denied the President the ordinary ability to waive sanctions as necessary. Moreover, these sanctions will affect not just the relations between the USA and Russia – because of their specifics they potentially put many Eurasian countries in a predicament. So why would Trump sign such a law? Did he have any choice? Is there any future for Russia – United States relations after such actions? A famous Republican, ex-congressman and president of Flanagan Consulting LLC, Michael Patrick comments the situation for «Eurasia.Expert».

- Mr. Flanagan, the American sanctions against Russia, Iran and North Korea dominate the front pages of the media around the world. Trump reluctantly signed the Russian sanctions bill, though he could have vetoed it. Why did Trump act in this way, in favor of Congress?

- Understanding Congress is what is important here.  Without a profound understanding of the motivations and role of Congress, it is impossible to make easy assumptions about anything Congress does.  A loose and easy analogy to better understand Congress would be the Board of Directors of a large corporation.  The Board does not do many things directly but, instead, it instructs the CEO (the President) and the corporate management (the Administration) in matters and directions to be accomplished.  Then, like a Board, Congress provides resources for initiatives and priorities as well as foreclosing other areas in which it does not want any more action.  Congress’ word is law but that law is subject to implementation by the President and the Administration. 

Further, in matters of Foreign Policy, the President has a much freer hand in how it conducts the business of the nation externally.  In these matters, Congress traditionally follows – it does not lead.

The sanctions vote was unusual.  First, Congress usually imposes sanctions at the request of the President and his Administration in furtherance of some greater foreign policy goal or initiative – not as their own idea as was done here.  Second, the President and his Administration enjoy a constitutional primacy in foreign affairs and the actions of Congress were, to say the least, unusual.  Last, the President is ordinarily afforded a very wide latitude in enforcing any sanctions passed by Congress.  This bill requires the President to act in certain ways and does not allow him the ordinary ability to waive the sanctions as necessary or desirable in the ordinary course of conducting the foreign affairs of the nation.  This legislation is very unusual as it directly impinges on the President’s constitutional primacy in Foreign Affairs. 

These factors led the President to observe at its signing that the measure was possibly unconstitutional on its face and may or not be enforced by the Administration.

The motivations for Congress to act are usually political.  The current political hysteria over possible Russian involvement in the US elections is largely hyped-up by left-leaning media both for ratings (money) and for the larger purpose of injuring President Trump and his ability to function as President (partisanship). 

Democrats wanted the legislation to shackle the President’s ability to deal with Russia on an independent basis and to further the narrative that President Trump cannot be trusted when he is dealing with Russia.  The Republicans reluctantly went along because the issue is still very much in controversy and restraint in dealing with President Trump is a politically safe vote to make. 

To help themselves and the President, the Republicans loaded the measure with many sanctions against North Korea and Iran.  They did this in order to give everyone – including President Trump – something to talk about other than Russian sanctions in the bill.  It would have been very hard for the President to veto sanctions against Iran or North Korea. 

While the President could have vetoed the sanctions, the bill came through Congress with an overwhelming, near-unanimous vote – a veto-proof vote.  Being that the measure would have become law over the President’s veto in any event, that is Congress would have easily overridden the veto; there was little reason for the President not to sign.  His signature cooled some political tempers on the left and showed a little respect for the tight political spot his allies are in in Congress on the right. 

Again, the President has stated that the sanctions have legal problems of constitutional magnitude and have not been implemented yet.  Having stated this, President Trump left the constitutional fight for another day.  It is my guess that once the President is cleared of the specious charge that he colluded with the Russians to get himself elected, Congress will modify the law and return to President Trump the ordinary ability to enforce or waive these sanctions at his discretion and in furtherance of his foreign policy.  In this, the constitutional question will be removed. 

As reported by the New York Times, President Trump penned great reservations about the bill in his statement to Congress at its signing and there is a question of how much of the bill President Trump will enforce.

President Trump said the bill “included a number of clearly unconstitutional provisions.” Although he added that “I nevertheless expect to honor” the waiting periods, he did not commit to it.  Moreover, he took issue with other provisions, saying only that he “will give careful and respectful consideration to the preferences expressed by the Congress.”  In short, the vote and the measure itself were almost wholly political in nature and President Trump was less than certain about his expectation to enforce certain provisions of the bill.   It is still very much in the air. 

- It seems that the USA foreign policy is conducted not only by the President of the country, but also by Congress…

Congress is by design a political institution but one which usually respects the fact that the President leads the nation in foreign affairs.  When Congress acts in the area of foreign policy independently of the President’s request, it is almost always a nakedly political act – and a rare one as well.  If Congress acted this way regularly, it would be executing a dual-track foreign policy with the President. These rare initiatives in foreign policy by Congress are not constitutionally contemplated nor are they usually tolerated. 

In fact, when the Congressional Republicans invited Prime Minister Netanyahu to speak before Congress a few years ago, it was the Democrats and their allies in the media who howled that Congress was overstepping its authority in conducting foreign policy opposite to that of President Obama.  

This primacy vested in the President is the reason that President Trump described the measure as unconstitutional.

However, for political reasons he signed the measure.  Discretion (as they say) is the better part of valor and this is a constitutional fight that the Chief Executive can fight another day after much of the investigations regarding Russia and the 2016 elections has passed. 

I believe that it is not part of the active Trump foreign policy that Russia be sanctioned and I doubt that President Trump will enthusiastically embrace implementation.  In his own words:

“This bill remains seriously flawed — particularly because it encroaches on the executive branch’s authority to negotiate …  By limiting the executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people and will drive China, Russia and North Korea much closer together.”

- Is there any hope for a thaw in the relations between the USA and Russia after the sanctions?

- Sure. President Trump conducts foreign policy, not Congress. However reluctant Congress is in embracing Russia and President Putin, President Trump has a more moderated view.  It is my guess that the personal relations between President Trump and President Putin are better than they ever were under President Obama – regardless of how difficult the formal relations are at this time between the United States and Russia. 

As time passes and the relationship between President Trump and President Putin evolves, the official relationship between the United States and Russia will similarly mature. 

President Trump is battling forces entrenched in the US bureaucracy which are implacably opposed to a warm US/Russian relationship.  This fight will continue for the present with victories and failures along the way. 

President Trump gives every indication that he is committed to fostering better relations with Russia and opportunities will present themselves to work together on important international issues.  Perhaps the North Korean situation or the ongoing problems in Syria will afford an opportunity for the US and Russia to work together on issues of international cooperation. 

Concerning foreign affairs, the President of the United States has too many official tools and powers to be checked by Congress for long and, if Presidents Trump and Putin are committed to fostering better relations, Congress will prove impotent to stop that from happening.

- Europe declared that it is going to react to the American sanctions. Does Washington expect the European Union reaction?

- Europe has a different relationship with Russia than the United States does.  This relationship is much more intertwined with trade, macro-economic issues and proximity.  That relationship will demand a separate reading of the sanctions and an enforcement statement of their own creation.  My guess is that it will be in line with the United States’ action in principle but will diverge greatly in practice. 

I believe that there will be little or no practical effect of the sanctions on EU/Russian relations if the Europeans do not come to an independent conclusion of “Russian interference” in their elections.

The winning side in the late French elections made a great deal of such “interference” during the campaign.  Therefore, France may also find that its political structures will require some action against Russia for the same reason that the US Congress acted. 

Without such an independent finding by the EU or by its most important members, I personally imagine that the sanctions will have little or no practical enforcement or effect in Europe. 

- Will Europe obey the sanctions or will it strive to maintain cooperation on energy projects with the Russian Federation, such as «Nord stream 2»?

- European actions are entirely within their own sphere and judgement.  In the latest elections, France particularly worried aloud about “Russian interference” in its elections.

If Europe rigorously enforces sanctions, it will be for its own reasons and not because of the express wish of the United States.

I doubt that the United States will exert great pressure on Europe to enforce sanctions to any greater extent than the United States itself enforces the sanctions.  As I have mentioned above, this is a matter which time will tell.

- Do you think the anti-Russian sanctions will affect Russia’s trade with the members of the Eurasian Economic Union?

- The sanctions apply to Russia but not to Member states of the European Economic Union (EAEU).  The member states may be affected by the US legislation and its implementation to the extent that their internal dealings depend on Russian sanctioned activity. Apart from that, I do not see how the sanctions affect the agreements and activities of the EAEU per se.  If there are unintended consequences of the sanctions act which adversely affect the EAEU, it is incumbent on representatives of the EAEU to make Congress aware of such circumstances as soon as practicable. It is these unintended consequences that make Congressional action in the foreign affairs area problematic. It is important that they hear from such people so affected.
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