Illustration by J.S. Pugh, 1903. Illustration shows seven men as Roman senators labeled “T.C. Tillman, Lodge, Stewart, Morgan, Quay, [and] Hoar.” George F. Hoar is speaking to the others while pointing at a diminutive President Theodore Roosevelt standing in their midst. Source: Library of Congress.

Since the 9-11 attacks, it has become increasingly clear that the congressional role in US foreign policy, particularly in matters of war and peace, has faded to virtually nothing. For example, the Trump administration recently forged an agreement with the Taliban without any meaningful input from Congress. A few members complained, but only faintly before quickly moving on. Perhaps even more troubling is the reality that we have entered into engagement after engagement on the strength of the nearly two-decade old Authorization for the Use of Military Forces (AUMF). What was meant to be a system of checks and balances has evolved into one of nearly unfettered presidential power.

This aggrandizement of presidential foreign policy power has been underway for nearly a century, but where it has taken us is fraught with danger. Conducting foreign policy on the basis unilateral fiat by one branch or decades old authority is a recipe of disaster, especially if we become embroiled in a conflict that public opinion turns seriously against.

How exactly did we get here? The conventional wisdom is that the framers built our system for an agrarian society insulated from major power politics by an ocean. They didn’t envision the need to manage the foreign policy of a global superpower. Presidents, out of both necessity and ambition, filled the gap. However, while there is some truth to this telling, it is not the whole story.

It turns out that the framers actually positioned the Senate to restrain presidential foreign policy powers more effectively than it currently does. What is often missed is the extent to which our current institutions have evolved from their original design. In this case, an underappreciated culprit is the switch to the direct election of senators that culminated in the 17th Amendment. In a recent article, we establish that the move to direct election inadvertently upset a delicate arrangement of checks and balances in a way that favored presidents.

Direct election was a strong step toward more responsive democracy, but shifting the attentiveness of senators from state legislators to their state’s general public reduced their incentive to engage with foreign policy. Average citizens know and care little about foreign affairs. They tend to vote for state-level offices based on local and economic concerns rather than foreign policy. Making citizens the direct bosses of senators reduced the rewards of foreign policy expertise. Tangling with a president over foreign policy matters might even indicate to voters that a senator was too much a creature of Washington and no longer actively “bringing home the bacon.” The notion that “politics stop at the water’s edge” has always been more prescriptive than descriptive, but removing the incentive of senators to provide meaningful constraint on presidential foreign policy preferences moved us a bit closer to that reality.

State legislators, by comparison, sought the election of senators who were better equipped to constrain certain presidential foreign policy preferences, particularly those that impacted international trade and the use of force in ways that directly stated trade interest and indirectly emptied state coffers. State legislators in this period were highly reliant on “power brokers”—party bosses, party machines, and wealthy patrons—for political survival. These power brokers, who had wide-ranging business and financial concerns, pushed state legislators to select senators who were attentive to defending the institutional prerogatives of the chamber, including in the realm of foreign policy as a means of protecting their own interests at a national level.

Thus, after the move from indirect to direct election, senators had little choice but to change their behavior accordingly, with increased attention to local concerns at the expense of foreign policy. With senators no longer muscularly engaged in foreign policy, entrepreneurial presidents readily moved into the vacant political space. Crucially, this was space that remained politically valuable to presidents as the holders of the only nationally representative office in the land. This, we argue, is how we got to the modern foreign policy presidency.

We can see evidence of the role that direct election played in the growth of presidential foreign policy power when we look at the piecemeal phase-in of senatorial direct election at the state level (via direct primaries) between 1877 and 1915 to identify the impact on votes to either expand or limit presidential authority over tariffs or treaties. Senators who answered directly to citizens, rather than more elite state legislators, were more likely to vote to delegate foreign policy power to presidents because their personal political incentives increasingly led them to minimize foreign policy engagement in favor of engagement with issues of greater interest to their new principals—individual citizens. We also show that senators subject to direct election shied away from foreign policy committee assignments.

Given our current situation, is there a way out? Can the Senate return to its constitutional position of prominence as a vital check on presidential foreign policy power?

In the short term, probably not. An assertive Congress can occasionally attempt to limit the worst excesses of an aggrandizing foreign policy president. This year, for example, Congress passed a war powers resolution limiting President Donald Trump’s authority to launch military operations against Iran, “unless explicitly authorized by a congressional declaration of war or a specific authorization for use of military force against Iran.” Introduced by Sen. Tim Kaine (D-VA), the Senate passed the war powers resolution (S.J. Res. 68) on a 55-45 vote on February 13. Less than a month later, on March 11, the House followed suit on a 227-186 vote. Each vote elicited some bipartisan support. Nonetheless, the expectation is that the president will veto the legislation, and neither chamber has the votes for the two-thirds override.

It would seem then that even when Congress can organize itself to act collectively against a president on foreign policy, constitutional arrangements mean that such efforts are doomed to fail. Underlying this story is a larger point about the tension that exists between democratic representation and certain types of elite driven outcomes. The move to direct election of senators was meant to bring political decision making “closer to the people.” It did that. But it also eliminated an important institutional intermediary (state legislatures), and by doing so shifted senatorial incentives away from checking a president on matters of foreign policy. The resulting takeaway is this: Institutional changes can achieve important, stated outcomes, but they can also have important, unintended consequences. This particular one accidently baked presidential preeminence in foreign policy into the cake.

This is not to say, however, that change is impossible. Just that legislation is unlikely to be a sufficient remedy. Our findings indicate that the current state of affairs is the result of a significant institutional change brought about through a constitutional amendment. Only an equivalently significant institutional change is going to fix it. In a time of extreme polarization such changes seem impossible. But they’re not. We’ve done them before. And in a post-COVID 19 world, where partisan politics and coalitions may take new forms, things that seem impossible today may be very much on the drawing board tomorrow.

Philip B. K. Potter (@pbkpotter) is Associate Professor of Politics and Founding Director of the National Security Policy Center in the Frank Batten School of Leadership and Public Policy at the University of Virginia. Jeffery A. Jenkins (@jaj7d) is Provost Professor of Public Policy, Political Science, and Law; Judith & John Bedrosian Chair of Governance and the Public Enterprise; Director of the Bedrosian Center; and Director of the Political Institutions and Political Economy (PIPE) Collaborative at the Sol Price School of Public Policy, University of Southern California. Thomas R. Gray (@t_r_gray) is Assistant Professor of Political Science in the School of Economic, Political and Policy Sciences at the University of Texas at Dallas.

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Topics: Oversight