Speechgate: Boehner, Obama, Netanyahu, and the Constitution

This past summer at the Annual Meeting of the American Political Science Association in Washington DC, I participated in a panel on early American foreign policy.  Among my fellow panelists was David Carrithers of the University of Tennessee at Chattanooga, who read a paper entitled “Once More Unto the Breach: Madison versus Hamilton on Presidential Power in Foreign Affairs” (the paper doesn’t seem to be up on the web, but if you write to Professor Carrithers via the email on his webpage above presumably he will send it to you).

Professor Carrithers took us back to the Pacificus-Helvidius debate over the respective roles of the President and Congress in setting the basic lines of foreign policy on war and peace.  The occasion was George Washington’s May 1793 decision to proclaim American neutrality in the War of the First Coalition between Britain and France.  Helvidius (James Madison) argued that since the Constitution gave the power to declare war to Congress and not the President, only Congress could declare neutrality, that is to say non-war.  Pacificus argued that all Washington did was proclaim that as a matter of law the United States was neutral , and that his administration would take appropriate steps to enforce America’s obligations as a neutral.

You might think that the real issue between Madison and Hamilton was whether America should be neutral between Britain, America’s enemy in the Revolutionary War, and France, America’s ally in that war, and to whom the US was still formally allied by the treaty of 1778.  But they did in fact agree that America should stay out.  The real issue was who should take leadership in foreign affairs, the President, charged by the Constitution with executing most aspects of foreign policy, or Congress, charged by the Constitution with declaring war or peace.  Doves, whether Democrats or Rand Paul Republicans look at the record of US interventionism where the President has generally been the one leading, and argue for Congressional leadership.  They do not attend to those cases where it is Congress rather than the President who is pushing for action (think Jackson-Vanik or, US attitudes toward the civil war in Cuba that brought about the Spanish-American War).

Which brings us to Speechgate.  Whatever policy Obama wants on Iran it is almost certainly to require some kind of legislative action, and so Congress has a role.  In order to exercise its constitutional role Congress cannot depend on the Administration for information, and it conducts hearings and even  operates its own intelligence agency -- the Library of Congress with its Congressional Research Service.

Speaker Boehner, in coordination with the Senate leadership and informing the White House, chose to invite Benjamin Netanyahu to speak before a joint session of Congress.  The White House seeing an opportunity to simultaneously display its contempt for its most hated enemies, the Republicans who control Congress and Netanyahu, made clear that Netanyahu’s unwelcome to the President and even went far as to lie and claim that Netanyahu had disrespected the President by accepting the invitation before the White House was informed of it.

Under the law, the President clearly has the right to keep Netanyahu out of Washington.  He even has the right, though it is rarely if ever exercised, to keep Congressmen and Senators from travelling abroad to meet with foreign leaders.  Congress, though, has its own duties regarding foreign policy and has the right to deliberate freely in order to carry out those duties.  Speechgate isn’t yet a constitutional crisis, but if Obama’s Iran policy craters before he leaves office, it will be seen as the beginning of one.

As regards Netanyahu, polling shows that he is strengthening aginst his rivals notwithstanding White House hostility.  But that might not last.  For Netanyahu’s enemies, though, I have another history lesson:  in 1999 Bill Clinton did a lot to help shove Bibi out and bring in Ehud Barak, whom Clinton correctly perceived would restart the stalled Israeli-Palesitinian negotiations.  But negotiating did not lead to peace:  rather, faced with an Israeli offer at Camp David to which he had no constructive response, Arafat chose to launch the Second Intifada.  More than three thousand Palestinian deaths, more than a thousand Israeli deaths, and a renewed Israeli occupation of the West Bank.

Obama wants a new Israeli prime minister, and thinks that with new Israeli leadership he can force concessions to Abbas.  He also thinks that engaging with Iran is the way to deal with the new Sunni Caliphate he likes to call ISIL, the Islamic State in the Levant.   Can, or will, Abbas, keep jihadis out of any territory he takes from Israel?  Will Iran obey the norm of no first use to which all nuclear powers since 1945 have adhered?  Some of us, including Republican Speaker John Boehner and Democratic Senator Robert Menendez, would prefer not to find out.