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Congress vs POTUS on foreign affairs. @RichardAEpstein @HooverInst

Deals with the recent legislation on sanctions against Russia. More topical, I think.

Just yesterday, an unhappy President Donald Trump signed H.R. 3364, America’s Countering America’s Adversaries Through Sanctions,” which targets a rogue’s gallery of Iran, North Korea and Russia, all of whom pose serious security threats to the United States and its allies. Each of these nations presents somewhat different problems, so I shall confine my attention here to Russia, whose relationship with the United States has fallen as of late into a downward spiral. The Russians have no doubt meddled in American politics, and they have undertaken aggressive actions in the Ukraine, and are poised to take aggressive actions along its borders. It is no wonder that the President, or at least parts of his divided administration, and Congress think that some sanctions should be imposed against Russia. The hard questions are what sanctions, and by whom?

The Congress wants to tie the President’s hands in dealing with Russia. So the legislation sets out a list of sanctions that are now in place, and then indicates that the President is not allowed either to terminate or waive any of these sanctions against Russia unless he first goes through an elaborate process whereby he initially submits a detailed report that indicates whether or not his action “is intended to significantly alter United States foreign policy with respect to the Russian Federation” and then describes the security implications of any such move. During a 30-day period (except in summer recess when it is 60 days) the President is not allowed to take these actions at all. If at the end of that period, either chamber of Congress refuses to accept the President’s judgment, then “the President may not take that action.” The drafting here is somewhat peculiar, because it says that a joint resolution refers to a “a joint resolution of either House of Congress,” which looks as if a one-chamber veto is sufficient to upend the matter.

This legislation can be challenged on both policy and constitutional grounds, both of which turn on the effort of the Congress to limit the way in which the President may unilaterally alter the sanctions imposed on Russia.

As a political matter, sanctions are always a tricky tool to operate for all the usual reasons. The sanctions are imposed only by the United States, with the partial cooperation of our allies. In any event, their impact on Russia is doubtful, since Moscow is an old hand at ducking sanctions and can obtain needed resources and services from third parties, often in convoluted transactions that evade detection. In addition, sanctions hurt the U.S. and its partners by causing a reduction in their trade. Worse still, it is a messy business to decide which domestic companies will bear the brunt of these sanctions, which usually has to be determined by divisive internal political processes. As a first cut, the best way to hurt Russia is by opening the spigot that allows American firms to sell cheap products, e.g. natural gas, in ways that force down Russian prices, reduce Russian hard cash reserves, and create good will with new and old trading partners alike. Nations that benefit from buying our goods and services at lower prices have no incentive to defect in the long or short run.

Alas, economic sanctions cannot do the job alone, which means that in general a wide variety of direct sanctions have to be brought to bear on such matters as the movement of cash through the financial sector, prohibitions on the sale of strategic goods, and the remova...