Congressional Control of the Sanctions Off Switch Could Backfire
The Russian sanctions bill about to reach President Donald Trump’s desk gives the final say to Congress, rather than the president, for relaxing or eliminating sanctions. Specifically, a future presidential decision to lift the Russian sanctions could be overturned by majorities in both the House and the Senate. This provision was inspired by bipartisan concern that Trump could try to waive the sanctions because of his alleged ties with Russian President Vladimir Putin. The legislation was applauded by the Washington Post editorial page and other publications.
But the provision has a downside. It limits US diplomatic flexibility in achieving the core objective of sanctions: changing the behavior of target countries.
Some legislators see congressional control of the off switch as a model for all future sanctions legislation. As Senator Bob Corker (R-Tenn) stated, “I think congressional review should be part of every sanction that we put in place.” While congressional control of the off switch is easy to understand in the context of current Russian sanctions, it would be unfortunate if it became routine policy for future cases.
Ever since Congress overrode President Reagan’s veto of stronger South African sanctions in 1986, Congress has stepped up its oversight of the sanctions process in high profile cases. For example, the Helms-Burton Act of 1996 (the Cuban Liberty and Democratic Solidarity Act), initially opposed by President Bill Clinton, required secondary sanctions against Canadian and European firms that did business with Cuba, unless the president waived their application. The same law compelled broad new sanctions on Cuba, unless the president certified that “a democratically elective government in Cuba is in power, on the progress being made by Cuba toward the establishment of such a democratically elected government.” The Iran-Libya Sanctions Act of 1996 again required a presidential finding to lift the measures imposed by Congress.
To be sure, Article I, section 8 of the Constitution vests power over foreign commerce in the Congress. But historically, in the realm of economic sanctions, Congress has delegated that power to the president, notably in the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and case-specific laws. Under these statutes, presidents have made economic sanctions a durable arm of US diplomacy. In fact, the United States—by far the leading “sender” of sanctions—has launched or participated in some 119 episodes of economic statecraft since 1945.
If, as urged by Senator Corker, Congress asserts control over the power to withdraw sanctions in all future cases, the difficult art of diplomacy will become that much harder. Diplomacy usually operates in shades of grey, not black and white. With give-and-take reciprocity, a president may lift part of a sanction in exchange for small concessions by the target country—akin to President Barack Obama’s dealings with President Raul Castro of Cuba. Such diplomacy will be harder to carry off under the threat that Congress might yank back the US side of a delicate bargain.
Sanctions against Russia have been imposed by a coalition of nations, including the United States. In such circumstances presidential flexibility becomes even more important because of the necessity for coalition cooperation to strengthen or weaken the sanctions themselves. These practical dynamics of sanctions policy strongly argue against congressional control of the off switch as a routine matter.
. To lift sanctions on Iran, the president was required to certify to the appropriate congressional committees that Iran had stopped its effort to develop a nuclear program and was removed from the list of countries that support international terrorism. To remove sanctions on Libya, the president was required to certify to the congressional committees that Libya fulfilled the requirements of United Nations Security Council Resolutions 731, 748, and 883.