Congress fails, even post plan – expertise swamps will or legal means

Goldgeier and Saunders 18 (James Goldgeier – Professor of International Relations at American

University and a Visiting Fellow at the Council on Foreign Relations, and Elizabeth N. Saunders –
Associate Professor in the School of Foreign Service and a Core Faculty Member in the Security Studies
Program at Georgetown University, “The Unconstrained Presidency,” September/October 2018,
https://www.foreignaffairs.com/articles/2018-08-13/unconstrained-presidency)

In the age of Donald Trump, it often feels as though one individual has the power to chart the United States’ course in the world all by himself.
Since taking office as U.S. president, Trump has made a series of unilateral decisions with enormous
consequences. He walked away from the Trans-Pacific Partnership, the Paris agreement on climate
change, and the Iran nuclear deal. He imposed tariffs on Canada, China, Mexico, and the European
Union. In June, he single-handedly upended the G-7 summit by insulting Canadian Prime Minister Justin Trudeau and
withdrawing the United States from the group’s joint communiqué. In July, his European travels produced more diplomatic
fireworks, with a NATO summit in Brussels that raised questions about his commitment to the
organization—before his deferential press conference with Russian President Vladimir Putin. Each choice has brought howls of
outrage—but little real pushback. Congress, for example, has proved unable to block the president from
starting a trade war with China and with U.S. allies. For all of Trump’s talk of a shadowy “deep state” bent on
undermining his every move, the U.S. government’s vast bureaucracy has watched as the president has
dragged his feet on a plan to deter Russian election interference . Even the United States’ closest allies have been
unable to talk Trump out of damaging and potentially withdrawing from institutions of the liberal international order that the country has led
for decades. How can a political system vaunted for its checks and balances allow one person to act so freely? In reality, the
problem
goes well beyond Trump, and even beyond the well-documented trend of increasing presidential
power. Constraints on the president—not just from Congress but also from the bureaucracy, allies, and
international institutions—have been eroding for decades. Constraints are like muscles: once atrophied, they require
bulking up before the competitor can get back in the game. Trump did not create the freedom of action he is now
routinely displaying. He has merely revealed just how difficult it is to prevent it. In Congress, the
combination of declining foreign policy expertise among members and increasing political polarization
has reduced the ability of legislators to supervise the executive branch even if they had the appetite to
do so. The bureaucracy, meanwhile, has lost its incentive to cultivate and wield expertise as decision-making
has become centralized in the White House and congressional action and oversight on foreign policy
have declined. And U.S. allies, for their part, have become less able to check the president’s foreign policies as
the alliances have become ensnared in U.S. partisan politics . Similarly, the post–Cold War era has frequently seen
presidents circumvent international institutions. Going forward, any attempts to stem the growth of presidential power will have to confront
not just the damage done by Trump but also the deeper problem that damage has exposed: that the
bodies charged with
constraining presidential power have been steadily losing both their willingness and their capacity to
rein in presidents. Many have written eloquently, particularly since 9/11, about the need for checks on
presidential power. But the reality is that Congress is in no shape to reclaim its role in foreign policy —
and neither are the other traditional sources of constraint on U.S. presidents. It may take a major shock, such as
the rise of China, to reboot the system.
Congressional checks on NFU fail – the aff is both a rubber stamp and undermines
deterrence
Singh 18 – Professor in Department of Politics, Birkbeck, University of London (Robert, “The United
States Congress and Nuclear War Powers: Explaining Legislative Nonfeasance,”
http://www.bbk.ac.uk/politics/our-staff/academic/robert-singh/principal-publications)

First, implicitin the arguments for greater influence is the assumption that Congress can and would
overcome the parochialism, hyper-partisanship and irresponsibility that critics identify as hallmarks of its
contemporary dysfunction. Undoubtedly, much sniping at Congress is unfair. Many legislators are hard-working public servants,
pursuing good public policy as well as re-election. That said, collective action in the public interest is not a legislative
leitmotif. Many bemoan Congress as ‘broken’ and ‘failing America.’ To understate, it is difficult to envisage how ‘a supine,
reactive body more eager to submit to presidential directives than to assert its own prerogatives’
(Mann and Ornstein, 2008, p. 16) would be fully repaired and functional on as consequential a matter
as nuclear war. From Truman to Reagan, instances of congressional deference to the executive branch
owed much to intra-party divisions and Cold War geo-politics . But America’s separated system of government has
encountered substantial problems in accommodating the partisan polarisation of recent decades (Mann and Ornstein 2012). Partisanship
typically plays the major, if not entirely determinative, contribution in debates over authorising military
action (Howell and Pevehouse, 2007). But this can often abet indecision as well as deference or obstruction. Perhaps the most graphic
illustration is that neither a renewal nor replacement for the 9/11 Authorisation for the Use of Military
Force has been enacted. In September 2017, the Senate voted down, by 61-36, a measure to amend the National Defence
Authorisation Act to attach a six-month sunset to the 2001 and 2002 AUMFs and establish anew what war powers the presidency possessed to
combat transnational terrorist groups (Carney, 2017). Second, the timing and content of statutory intervention has proven problematic. At
what point should Congress optimally intervene in a developing nuclear threat? Like the legislatures of fellow nuclear
democracies (the UK, France, India and Israel), Congress is constructed neither for active involvement in crisis
situations nor tactical decision-making. These remain essentially, if not inherently, executive tasks. Deliberation
may be an activity at which it excels, but subtlety, secrecy and dispatch are not reliable attributes of congressional
behaviour. For lawmakers to undertake action in the middle of a tense international confrontation could
hinder rather than help the president’s diplomatic hand. For the legislature to intervene outside crisis
conditions, however, might be counter-productive, helping to precipitate a crisis it intended to postpone
by signalling potential US aggression or failing to anticipate important contingencies in the permissible uses of nuclear weaponry
for which it legislated. In neither case is it clearly apparent exactly what ‘added value’ would accrue in securing the national interest. A ‘seat-of-
the-pants’ crisis provision would, probably, be epiphenomenal to where the action really was in terms of high level negotiations, whether direct
or (as in the Cuban Missile Crisis) through back-channels. A‘blank cheque’ provision, permissive and permanent, would make
minimal difference to the president’s autonomy , beyond giving it a congressional imprimatur in perpetuity (absent stipulated
cut-off dates). Third, exactly what Congress would be authorising would be a matter for lawmakers. But similar problems arise on a
potential authorisation for using nuclear arms as those Congress has confronted – or declined to confront - on
conventional warfare. Either the authorisation is so broad as to admit of almost any contingency (the
criticism commonly levelled at the post-9/11 AUMF) - in which case its restrictive qualities are mostly fictional - or it prescribes so
many conditions as to leave the president and Pentagon hamstrung
g, lacking the necessary or desirable discretion to threaten or execute optimal policies. The proposed ‘no first-use’ legislation is
especially problematic, as it requires a war declaration. Unless Congress is able and willing to alter its practice of
(sometimes) authorising military action and rediscover the ‘lost art of declaring war’ (Hallett, 1998), the
president would theoretically be unable to make first use of nuclear weapons at all . In the event of, for
example, ‘hybrid war’ by Moscow against a Baltic state, a NATO military response is unlikely to warrant a
formal US declaration of war on Russia. Similarly, a North Korean strike against South Korea or Japan would
invite a US military response, but not a war declaration . It is therefore unclear whether the real intention of proponents of
restrictive legislation is to prohibit presidential discretion over offensive nuclear war completely – a ‘no first-use’ policy by stealth – or ‘merely’
to subject this to legislative approval.

*Signing statements inevitably allow executive circumvention

Rush 18 Mark Rush, Mark Rush is the director of the Center for International Education and Stanley D.
and Nikki Waxberg Professor of Politics and Law at Washington and Lee University. He writes extensively
on elections, democracy, constitutional law, and, occasionally, baseball. “The Law Presidential Signing
Statements and Coordinate Constitutional Interpretation.” Center

On August 2, 2017, President Trump signed the “Countering America’s Adversaries Through Sanctions
Act” into law. In so doing, he included a signing statement in which he asserted that the bill was severely
flawed because “it encroaches on the executive branch’s authority to negotiate.” Making the
controversial statement that “[t]he Framers of our Constitution put foreign affairs in the hands of the
President,” Trump also asserted that parts of the bill were clearly unconstitutional and, therefore, that
he would either ignore or qualify them. (White House, August 2, 2017). The president’s claims in the
signing statement precipitated a small storm of media discussion about the scope and definition of
executive power in the constitutional system (particularly with regard to foreign affairs) and the
constitutionality of the signing statement (Savage 2017). Nonetheless, it is important to note that
presidential use of signing statements is a long-standing practice that dates back to the tenure of James
Monroe (Garvey 2012, 1). Their use over time has been particularly controversial as presidents have
employed them not simply to put an interpretive gloss on legislation but also , according to a 2012 report
by the Congressional Research Service (CRS), as justifications for “an expansive conception of
presidential authority, coupled with a willingness to utilize fully mechanisms that will aid in furthering
and buttressing that philosophy” (Garvey 2012, 26). Under the George W. Bush and Barack Obama
administrations, this has been especially true with regard to declarations about the scope and control
over foreign affairs (see, e.g., Rosen 2016). According to the CRS report, the constitutional status of
signing statements is not clear. Some critics of their use suggest that they are the equivalent of
unconstitutional line item vetoes. This claim depends, of course, on what a particular statement says or
does because not all signing statements would potentially raise such concerns (American Bar Association
[ABA] 2006, 18, 22). But, insofar as the signing statements have not been given “substantive legal effect”
(Garvey 2012, 14) by the courts, they remain the focus of many continuing dialogues on separation of
powers theory and practice in the United States. According to the ABA Task Force on Presidential Signing
Statements and the Separation of Powers Doctrine, the use of signing statements “to claim the authority
or state the intention to disregard or decline to enforce all or part of a law that [the President] has
signed” is contrary to the rule of law (ABA 2006, 5). The Task Force therefore made several suggestions
to constrain the use of signing statements that were aimed, essentially, at promoting more
communication between the president and Congress. These included: urging the president either to
convey his concerns to Congress before a bill’s passage or to use only the veto if he believed that a bill
or parts of it are unconstitutional, urging Congress to enact laws that would require the president to
explain his concerns about pending legislation, or creating a means by which signing statements could
be reviewed by the courts. The Task Force report expressed alarm with the number of signing
statements issued by President Bush. But it cast its concerns more broadly with regard to the growing
power of the executive at the expense of Congress (see also Bradley and Posner 2006). But there is an
element of self-contradiction in the ABA recommendations: they depend on an atmosphere of
cooperation between the president and Congress that, if it existed, would remove the need for a
president to issue a signing statement in the first place. Of course, not all signing statements are the
same. Scholars have generated numerous taxonomies of their type and use. Walter Dellinger (1993,
131–33) noted several types and uses of signing statements: explaining to the public the president’s
understanding of the effects of a particular bill on the administration’s views or programs, guiding or
directing executive branch officials in the administration of a law, announcing the president’s view of the
constitutionality of a law and how the president will interpret or apply it to avoid constitutional
questions, and/or declaring all or parts of a law unconstitutional. In addition, a president may use a
signing statement only to offer commentary on an act of Congress. Thus, in contrast to his statement of
August 2, 2017, President Trump offered a more salutary note in his statement of September 14
regarding the congressional reaction to the protests in Charlottesville, Virginia: Today, I am pleased to
sign S.J. Res. 49. As Americans, we condemn the recent violence in Charlottesville and oppose hatred,
bigotry, and racism in all forms. No matter the color of our skin or our ethnic heritage, we all live under
the same laws, we all salute the same great flag, and we are all made by the same almighty God. We are
a Nation founded on the truth that all of us are created equal. As one people, let us move forward to
rediscover the bonds of love and loyalty that bring us together as Americans. (White House. September
14, 2017) Regardless of the nature of a particular signing statement or their actual legal status in
general, I suggest that how they are conceived (or received) is less important than acknowledging that
they are but one manifestation of a practice that is part and parcel of the legislative and administrative
process. At a minimum, signing statements embody and put into writing the inevitable interpretive gloss
that must occur when one party reads a text written by another (see, e.g., Fish 1982; Chevron U.S.A. v.
NRDC 1984). At a maximum, they may be regarded as an executive sleight of hand that occurs after a
law has been presented to the president for his signature. At this point in the legislative process, the
president has an advantage over Congress because he is a unitary actor who absolutely controls the
outcome of the legislative process. A signature converts a bill into law, period. This would seem to put
Congress in a difficult position. If Congress has the institutional wherewithal to override a traditional
veto, it has a clear recourse in response to a presidential challenge. But because a signing statement is
not a veto, it is not clear what recourse Congress would have if a signing statement indicates that the
president regards parts of a law as unconstitutional or intends to apply a law in a manner that Congress
did not intend. In theory, Congress could pass another law that rearticulates or reaffirms its intent in a
manner that would constrain a president’s interpretive leeway. But, in the end, the president would be
as free to interpret the subsequent law as freely as he chose to interpret the first one. Insofar as signing
statements have addressed the scope of executive power to conduct foreign affairs, critics have
expressed concern about whether and how this expansive vision of power can or may be checked and
balanced (Adler 2014) and what the implications of such an expanded view of executive power would be
for national security. The focus on foreign affairs, however, obscures the more basic and fundamental
aspect of the signing statement that I wish to emphasize in this article: they are mere manifestations of
practices that are inherent parts of any legislative and administrative process. The question remains,
then: how can we distinguish between statements that embody reasonable exercises of executive
interpretive powers and those that push the boundaries of acceptable executive power?