Concurring Opinions
October 13, 2007 Saturday 1:08 PM EST
Be It Resolved . . .
by Timothy Zick
Oct. 13, 2007 (Concurring Opinions delivered by Newstex) — In prior
postings (hereand here), I have objected to Senate and House
resolutions that condemned political expression by MoveOn.org and
Rush Limbaugh. I did not claim that Congress lacks the authority to
issue such resolutions. Rather, my claim was that such pronouncements
skew the marketplace in political ideas and may chill expression by
some with strongly held political viewpoints — perhaps especially
those who have business before Congress.The issue of congressional
resolutions has surfaced once again, although this time in a very
different context. On Wednesday, the House Foreign Affairs Committee
approved H.Res. 106 — the "Affirmation of the United States Record
on the Armenian Genocide Resolution." The resolution, which includes
findings concerning the Ottoman Empire’s execution and displacement
of Armenians from 1915-23, "call[s] upon the President to ensure that
the foreign policy of the United States reflects appropriate
understanding and sensitivity concerning issues related to human
rights, ethnic cleansing, and genocide documented in the United
States record relating to the Armenian Genocide, and for other
purposes." House Speaker Nancy Pelosi has vowed to bring the measure
to the floor for a vote. President Bush, who has made annual
statements condeming the atrocities against Armenians, lobbied to
block the resolution in committee. He has expressed disappointment
that it was voted out of committee, and has vowed to help defeat its
passage. The President’s interest in the resolution is Turkey is a
valuable ally in the Iraq War. The country serves as a critical
staging ground for the shipment of supplies into Iraq. Turkish
officials, particularly legislators, have reacted strongly to the
resolution. They have threatened to cease providing logistical
support to the United States, have stepped up military operations on
the Iraq border, and have recalled their ambassador to Washington.
>From the earliest days of the republic, congressional resolutions
(joint, concurrent, and simple) have been issued to express the
opinion or will of one or both chambers of Congress. Most
"symbolically expressive" resolutions are not at all controversial.
For example, resolutions have been proposed or enacted which
celebrate children as "the hopes and dreams of the people of the
United States," recognize Ramadan and express "the deepest respect to
Muslims in the United States and throughout the world," acknowledge
military gallantry, and designate March as "Women’s History Month."
Such "feel good" expression does no harm, and indeed can inform the
public of important national policies and priorities. As the fallout
from the Armenian genocide resolution demonstrates, the calculus may
be substantially different, and the stakes much higher, when Congress
expresses itself on matters of foreign affairs. The Constitution
divides the power to conduct foreign relations between the Executive
and Legislative branches. Part of that power resides, of course, in
the issuance of formal statements by the branches. History shows that
congressional resolutions, in particular, can be important
policy-initiating and policy-shaping statements. Previous
congressional resolutions have called on the President of Pakistan to
hold free and fair elections and on the Chinese government to resolve
political crises without violence. Congress also supports
presidential foreign policy initiatives through resolutions. For
example, Congress expressed gratitude to the United Kingdom for
allowing U.S. bombers stationed there to participate in the April,
1986 raid of terrorist bases in Libya. This dialogue — between
Congress and other nations and between the branches of government —
surely ought to be encouraged. But Congress is no ordinary speaker.
As no legal restraints apply to its many "symbolic" resolutions, it
must determine for itself when and on what matters of foreign affairs
it wishes to speak. Congress, in other words, must necessarily
self-censor. On the world stage, as in the domestic market for
political expression, Congress must be acutely aware of the
ramifications of its expression — for diplomacy and, in the case of
the genocide resolution, even military operations. The President and
Congress will not always agree on foreign affairs policies or
agendas. Setting aside Congress’s undoubted ability to speak to
matters of substantive foreign policy and war, what if any norms or
considerations ought to guide Congress when considering whether to
issue symbolic resolutions on controversial matters like Japanese
"comfort women" or Armenian genocide? Should it generally hold its
collective tongue where the controversy does not concern any direct
American interest? When it is particularly important that the United
States speak with a "single voice"? When its expression may interfere
with ongoing military operations, endanger lives, or result in the
breaking of diplomatic ties? Or should Congress, like other speakers,
rely upon the marketplace — including presidential resolutions –to
counter any purported ill effects from its expression, and speak
boldly even in the face of likely hostile audience reactions? I
confess to being far more certain that Congress ought to limit or
abandon resolution-making in the domestic political sphere than I am
of any plausible duty of self-censorhsip in the foreign arena, where
Congress of course has a recognized constitutional role to play.