The U.S. midterm elections saw the Democrats take the House of Representatives, while the Republicans retained control of the Senate.
A divided Congress will likely serve as a brake against most of Donald Trump’s policy agenda. But in one critical issue area—the diplomatic efforts to denuclearize North Korea—congressional divisions will not have a significant impact. For better or worse, the executive branch in general and Trump in particular will be able to deal with North Korea as they see fit.
Pre-election reports suggested that Pyongyang watched the election closely to divine the implications of a Democratic victory on Trump’s diplomatic engagement with North Korea.
Multiple experts have stated that a Democratic victory could tie Trump’s hands in negotiations with North Korea. Furthermore, fighting with the legislative branch over tax reform, immigration, and healthcare—all of which ranked as higher priorities for voters than foreign policy in a recent Gallup study—could absorb Trump’s attention and political capital, making it difficult for Kim Jong Un to have further summits or push for more U.S. concessions.
The new Congress is bound to have some effect on Trump’s approach to North Korea, but the impact of the legislative branch should not be overstated. At the end of the day, the executive branch still holds most of the power and control over the U.S.-North Korea diplomatic process. Most of Congress’s impact will therefore be constrained to the margins of U.S. policy.
The impact of the legislative branch should not be overstated
WAR AND PEACE
The primary reason for Congress’s lack of leverage is the fact that they don’t have control over the levers Washington uses to put pressure on North Korea.
Trump’s “maximum pressure” approach had two pillars: threats of military action and economic sanctions. Much of the first pillar is the purview of the executive branch.
For example, Congress can’t prevent the President from suspending large-scale military exercises with South Korea, which has been an important U.S. concession toward North Korea. Congress would also be unable to block Trump from creating an end-of-war declaration with both North and South Korea since such a declaration is not legally binding in the way a peace treaty is.
Congress does have the ability to restrict the extremes of American military behavior, namely war and peace. The legislative branch has not taken its constitutional responsibility to declare war seriously in many decades, but there seems to be growing interest among legislators in reasserting a degree of congressional oversight over the executive’s ability to use military force.
On the opposite end of the spectrum, Congress would have to ratify a peace treaty to officially end the Korean War. A split Congress could be a roadblock to either U.S. military action or a peace treaty but, given the current state of negotiations, neither option is in the offing.
SANCTIONS RELIEF IN THE OFFING?
While Congress does have greater direct influence over sanctions, the second pillar of the “maximum pressure” approach, a good deal of sanctions lie beyond their reach.
North Korea has made it clear that getting out from under the wide variety of bilateral and multilateral sanctions arrayed against it is a top priority.
Congress can only wield direct influence over some U.S. sanctions. It cannot do much about multilateral and non-American bilateral measures, including arguably the most significant restrictions, which were imposed by China—North Korea’s most important economic and political partner—and the UN Security Council last year.
Congress can influence U.S. sanctions against North Korea, but many of these sanctions were established via executive order (EO) and not acts of legislation. Trump has a great deal of discretion in enforcing and implementing the EO sanctions.
Congress can only wield direct influence over some U.S. sanctions
A stronger Democratic presence in Congress won’t stop him from loosening or lifting these measures if he feels they are a necessary part of nuclear diplomacy with North Korea (although sanctions relief does not appear to be a top priority for the administration).
However, this does not mean that the legislative branch is entirely sidelined. Two recent pieces of legislation—the North Korea Sanctions and Policy Enhancement Act of 2016 and the Countering America’s Adversaries Through Sanctions Act (CAATSA) of 2017—give Congress some skin in the game.
Repealing or amending these acts to provide sanctions relief would be at legislators’ discretion, but the executive branch still has most of the power in enforcing these laws.
BOLSTERING DOMESTIC DISTRACTIONS?
Most of the new Congress’s impact on U.S.-North Korea relations will come on the margins. As other experts have pointed out, a more confrontational relationship between the White House and Capitol Hill could eat up much of Trump’s time and effort that could otherwise be spent on dealing with North Korea.
House Democrat leaders have already promised to use their investigative powers against Trump, which will restrict his bandwidth for negotiations with North Korea somewhat.
However, the growth of Trump’s diplomatic team over the course of 2018 should allow the administration to keep negotiations going despite new domestic demands to the president’s attention.
Leader-to-leader summits will still require the president’s time, but the addition of Steve Biegun as Special Representative for North Korea Policy and Mike Pompeo’s meetings with high-level North Korean officials should allow the diplomatic process to continue even if Trump’s focus is elsewhere.
Most of the new Congress’s impact on U.S.-North Korea relations will come on the margins
Another area where Congress can have marginal effects on North Korea policy is through the budget. The House could link other funding priorities to the administration’s North Korea policy and threaten to restrict funding for other initiatives to change parts of Trump’s negotiating approach they dislike.
Funding for the new low-yield nuclear capabilities mentioned in the administration’s Nuclear Posture Review could also face restrictions. This would not have a direct impact on talks with North Korea, but it could raise concerns in allied countries that rely on the U.S. nuclear umbrella to deter North Korean nuclear threats, namely South Korea and Japan.
House obstinance on funding could impact American policy toward North Korea, but these effects are unlikely to change the fundamental nature of negotiations.
A Democrat-controlled House likely won’t have a meaningful impact on America’s diplomatic engagement with North Korea in the near term.
While Congress does have influence over the most extreme outcomes, the slow pace of U.S.-North Korea negotiations to date suggest that neither war nor peace are going to break out anytime soon.
Democrats can tinker with some aspects of U.S. policy, but the executive branch still holds most of the power over the U.S.-North Korea diplomatic process.
Edited by Oliver Hotham
Featued image: KCNA
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