By Sammy Hamed
Every election has consequences, and every new administration brings with it new policy changes, both domestically and abroad. The President has much more authority to determine foreign policy as Commander-in-Chief and our highest ranking diplomat. The President has the authority to make treaties, appoint ambassadors, and negotiate with other nations. On the other hand, Congress has more limited authority in foreign affairs, mainly by means of appropriations for the military and foreign aid. Congress also has authority when it comes to economic sanctions through the Foreign Commerce Clause in Article I sec. 8 of the U.S. Constitution.
Speculation during the election, and shortly afterward, regarding President Trump’s foreign policy included the notion that he would soften sanctions on Russia that had been implemented by past administrations and congresses. In the legal community, this raised questions whether President Trump’s intentions were to implement new sanctions or lift old ones. After a year since the election and nearly a year since President Trump took office, there is still little clarity on this administration’s direction regarding foreign relations right Russia. It would seem that Congress prefers a more strict approach with Russia following the recent elections, while the President would rather have a productive relationship with Russia to better combat terrorism and North Korean aggression.
Fearful of unilateral executive sanctions relief, a bipartisan group of U.S. Senators proposed legislation called the Russia Sanctions Review Act, which would require the President to notify Congress before lifting sanctions tied to the invasion of Eastern Ukraine or Russia’s interference in the 2016 Presidential Election. More recently, the President signed a bill passed by Congress in August implementing new sanctions on Russia and requiring the President to enforce them by October 1st. It wasn’t until October 26th, after continuous bipartisan pressure, that President Trump sent a list of individuals and Russian-connected-entities that he intended to impose sanctions on to prevent future improper business dealings. Even with a veto-proof majority, Congress cannot compel the President to enforce a law that he reluctantly signed. They can continue to pass legislation imposing additional sanctions, but the authority to enforce these sanctions falls on the Executive.
Prominent members of Congress and the intelligence community have identified Russia as a threat to our cybersecurity following the recent presidential elections, prompting them to impose a new wave of sanctions. In the past, sanctions imposed on Russia have been in response to the sale of arms and aggression in eastern Ukraine and Crimea. Additionally, there is strong evidence of Russian cyber-meddling in the recent elections. However, President Trump believes that Russia has been too-heavily sanctioned in the past and that the U.S. should now work to mend our diplomatic relations. Prominent Senators including Ben Cardin (D-MD) and John McCain (R-AZ), who sit on the Foreign Relations and Armed Services Committees, respectively, have expressed frustration with the delay in the enforcement of the most recent sanctions bill. This most recent sanctions package, which included sanctions on Iran and North Korea, also included a provision limiting the President’s ability to lift the sanctions without congressional approval. Not surprisingly, the President was bothered by this provision and viewed it as overreach by Congress. Theoretically, the President could impose or lift sanctions by executive order, or stall on enforcing a sanctions bill altogether. It would be difficult for Congress to compel him to enforce the legislation, as they have been struggling so far in this administration’s first year.
While Congress cannot compel the President to enforce the laws they pass, they will continue to add pressure through their appropriation and investigation powers. If the President wishes to change course on Russian policy it would be easiest for him to do so with the approval of Congress, as the structure of our Constitution allows for both the Executive and the Congress to shape foreign commerce policy.