Congress and Crisis: Navigating the Complex Terrain of U.S. Foreign Policy Toward Ukraine

By Kenneth Gatten III 

Introduction

This article explores the role of the U.S. Congress in formulating United States foreign policy, particularly in response to Russia’s renewed invasion of Ukraine in 2022. Examining the constitutional framework that grants Congress certain powers in foreign policy matters, the article describes interactions between the legislative and executive branches through congressional committees, budget allocations, and high-profile visits abroad. The focus then shifts to Congress’s role in shaping U.S. foreign policy towards Ukraine, showcasing a decade-long history of support and a recent breakdown in bipartisan consensus. The diverging views within Congress reflect broader ideological shifts, revealing the delicate balance between legislative and executive powers, partisan differences, and strategic considerations impacting U.S. involvement in Ukraine. The article concludes by highlighting the critical consequences of political battles in Washington for Ukraine, emphasizing the urgency of addressing these challenges in the broader context of international relations. 

How Congress Can Participate in Foreign Policy Making 

Benjamin Ginsberg and Kathryn Wagner Hill, professors at the Johns Hopkins University Center for Advanced Governmental Studies, provide a detailed overview of how Congress is empowered by the Constitution to participate in the foreign policy making process, how Congress has exercised its powers historically, and how its powers have evolved [1]. Based on these factors, the authors contend that the executive has marginalized the legislative branch in the realm of foreign policy making. This has occurred, they argue, through a struggle founded on the overlapping nature of the powers given to them by Articles I and II of the Constitution. 

Article I of the Constitution gives Congress the power to declare war, raise armies, regulate commerce [2], and ratify treaties and the appointment of ambassadors [3]. Article II makes the president commander in chief of the armed forces [4] and confers upon the executive the power to negotiate treaties, recognize foreign emissaries, and appoint ambassadors and consular officials [5]. Overlap is evident in many of these powers: how, in practice, does Congress enjoy the exclusive power to declare war while the president is commander in chief of the armed forces? How does the president appoint ambassadors when a potentially hostile Congress must ratify their appointments? 

In The Federalist No. 64, John Jay wrote of a struggle over the exercise of these powers, where the president has the advantages of better access to information, a greater capacity for secrecy, and an ability to act more quickly and decisively than Congress [6]. Alexander Hamilton believed, moreover, that the Constitution granted presidents the power to take the initiative in the foreign policy realm and undertake actions based on their own judgments of the national interest [7]. The U.S. Supreme Court has generally supported the Hamiltonian view of the president’s role in foreign policy [8]. For example, Justice George Sutherland ruled in the Court’s 7-1 opinion on the landmark 1936 Curtiss-Wright case that the president was the “sole organ of the federal government in the field of international relations” [9]. 

Executive agreements—whereby the president enters a politically binding obligation to another country without ratification by the countries’ legislatures—are one tool the president uses to marginalize Congress in conducting foreign policy. Usually, executive agreements are made pursuant to an act of Congress, but sometimes, they make commitments that the Senate would not lend two-thirds support. Congressional-executive agreements, which only require a simple majority in both houses of Congress, are another tool. U.S. membership in the World Trade Organization and the North American Free Trade Agreement (“NAFTA”) were confirmed by Congressional-executive agreement. A third highly powerful tool is national security directives, a specific form of Executive Order. These can compel the foreign policy bureaucracy to enact a variety of policies, including enforcing sanctions, performing military actions (such as airstrikes), gathering intelligence, and more [10].  

But while Congress has often deferred to the president, in recent years, it has not always given in. In 2015, for example, Congress invited Israeli Prime Minister Benjamin Netanyahu over President Obama’s opposition to address a joint session on the president’s efforts to strike a nuclear arms deal with Iran [11]. Eventually, nearly fifty Republican senators signed a letter to the Iranian government undercutting the Obama administration’s negotiations and potentially setting the terms of discussion in the United Nations Security Council, forcing the administration to take a tougher stance [12]. 

In both houses of Congress, standing subcommittees of the appropriations committees are tasked with determining funding for executive agencies including the State Department, foreign aid programs, and other matters. So, the Senate and House can cut or withhold funds for presidential priorities with which they disagree. In 2012, for example, Representative Kay Granger of Texas used her position as chairwoman of a House appropriations subcommittee to block $450 million in aid to Egypt that had been requested by the Obama administration [13].  

Congressional committees in the foreign policy realm include the Senate and House Foreign Affairs Committees, House and Senate Armed Services Committees, and House and Senate Intelligence Committees. These committees often question executive branch officials about matters of foreign policy. Members of these committees occasionally travel overseas for information gathering, as well [14]. Visits can be low- and high-profile, depending on the situation. In 2022, Nancy Pelosi made international headlines by traveling to Taiwan and provoking a military response from China that included the flying of military drones and firing of missiles over the island, violating Taiwan’s airspace in an act of intimidation [15]. 

Congress’s Participation in the Formulation of U.S. Foreign Policy Toward Ukraine 

There is a nearly decade-long history of Congressional support for military assistance to Ukraine. Before Russia launched its renewed invasion in 2022, Congress had authorized $2.8 billion in military assistance following Russia’s initial invasion in 2014 [16]. Following the 2022 invasion, during 2022 and 2023, Congress authorized $48.7 billion total of supplemental appropriations to fund security assistance to Ukraine [17]. Most notable were its increases of the funding cap for the Presidential Drawdown Authority (“PDA”) from $100 million to $11 billion for 2022 and to $14.5 billion for 2023, and its $18 billion in total appropriations to the Department of Defense’s Ukraine Security Assistance Initiative (“USAI”) during the two fiscal years [18]. The USAI funds long-term weapons contracts, while the PDA empowers the President to authorize the transfer of articles and services from U.S. stocks, up to a funding cap established in law. Most military aid has been sent under the PDA. 

After the invasion in February 2022, Congress acted quickly to authorize these funds, fast-track the confirmation of Bridget Brink as U.S. Ambassador to Ukraine [19], conduct visits to Kyiv to gather information and express solidarity [20, 21, 22], and convene with North Atlantic Treaty Association (“NATO”) Secretary General Jens Stoltenberg in May 2022 [23], among other actions. Bipartisan delegations visited Ukraine in the months following the renewed invasion, often speaking to Ukrainian President Volodymyr Zelensky and stopping in the city of Bucha, where civilians were executed and buried in mass graves by Russian soldiers during the Battle of Kyiv. Congressional visitors included Republicans Senator Steve Daines and Representative Victoria Spartz in April 2022 [24], Speaker Nancy Pelosi and a small delegation of Democrats in May [25], and a senior delegation including House Armed Services Committee Chair Adam Smith in July [26].  

Over time, however, bipartisanship has broken down as views about U.S. obligations toward international institutions such as NATO, which ostensibly act to reduce conflict and secure mutual benefits for member states, have bifurcated within the Republican caucus. It could be said that some Republicans in Congress advocate for a Reagan-esque assertion of U.S. power on the world stage, while others support the growing, isolationist “America first” wing of the caucus [27].  

One proponent of the latter viewpoint is Representative Scott Perry, Chairman of the House Freedom Caucus. Perry questioned officials at the three main agencies tasked with oversight on aid provided to Ukraine during a hearing held by the House Foreign Affairs Committee on March 29, 2023 [28]. After the three officials provided testimony attesting to finding no evidence of misuse, Perry rhetorically demanded further “assurance that none of that money that’s being sent to arguably one of the most, if not the most, corrupt country on the planet is being misused, misspent, lost.” Fellow Freedom Caucus member Representative Marjorie Taylor Greene is one of the Republicans [29] in Congress who opposes providing assistance to Ukraine because she believes it is fighting “a losing war” and should pursue “peace talks” [30].  Ranking Republicans in both houses of Congress have signed a letter pressing the Government Accountability Office to ensure “mechanisms are in place to assess whether assistance is reaching its intended beneficiaries in Ukraine” [31].  

Senate Minority Leader Mitch McConnell dismisses his Republican colleagues’ suspicions about aid misuse [32]. He maintains that assistance for Ukraine is being spent on “rebuilding our industrial base” and “destroying the armies of one of our biggest rivals” [33]. He also emphasizes the importance of the role played by European allies who “have done quite a lot” by contributing aid themselves and “housing a bunch of refugees who escaped” [34]. McConnell stated during a CNN interview in October 2023 that he believes providing assistance to Ukraine in collaboration with NATO allies is a vital U.S. strategic interest [35]. 

But in authorizing new assistance for Ukraine, McConnell must strike a deal with Republican leaders in the House, on whom there is immense pressure to accommodate a narrative that the U.S. faces a financial tradeoff between assisting Ukraine and shoring up the U.S. southern border. On August 10, 2023, the White House penned a letter to Speaker of the House Kevin McCarthy requesting the inclusion of an additional $24 billion in assistance for Ukraine in the 2024 government budget [36]. But due to Republican opposition to the measure, President Biden had to settle for a stopgap budget bill in November that included no assistance for Ukraine [37]. On December 6, 2023, Republicans in the Senate went so far as to vote down a supplemental aid bill for Ukraine, with an eye toward exacting concessions on border security from President Biden and Democrats in Congress [38].  

A group of Senate Republicans and Democrats unveiled on February 4 a bipartisan bill that addressed Republicans’ concerns about southern border security while providing aid to Israel and Ukraine. However, former President Trump called it “a great gift to the Democrats” heading into the 2024 presidential elections [39], and Senate Republicans ultimately voted the measure down [40]. On February 13, the Senate passed a standalone bill to provide aid to Israel and Ukraine, but passage in the House remains uncertain as Greene has threatened to bring a motion to vacate the speaker if Johnson introduces a bill that fails to address southern border security [41]. 

Unfortunately, political battles in Washington constitute an existential issue for Ukraine [42], where delays in assistance mean a sharp drop in firepower and an increase in casualties for their armed forces [43]. The Department of Defense has asked Congress for $18 billion to replenish stocks drawn down under the PDA, but President Biden must either wait for Congress to authorize the funding or draw down U.S. defense stockpiles without being able to replenish them [44]. “We feel hostage to the internal political struggle in the United States,” said Yehor Cherniev, a Ukrainian lawmaker who serves on the country’s National Security Committee, in an October interview for Foreign Policy [45]. 

Conclusion 

The breakdown of bipartisan support for assistance to Ukraine since Russia’s renewed invasion of 2022 reflects an ideological shift within Congress, with diverging perspectives on U.S. obligations toward allies and international institutions. Specifically, while some Republicans in Congress scrutinize aid to Ukraine, alleging misuse, others stress the strategic importance of supporting Ukraine’s fight against Russian aggression in collaboration with NATO allies. Prevailing views about the U.S. facing a tradeoff between border security and assisting Ukraine reveal the balance that exists between Congressional powers, partisan differences, and the strategic considerations guiding U.S. involvement in Ukraine. However, while U.S. assistance to Ukraine is held up in Congress, Kyiv faces the prospect of reduced firepower and higher casualty rates in its fight against Russia’s reconstituting armed forces. 

1. Benjamin Ginsberg & Kathryn Wagner Hill, Congress: The First Branch (2019).  
2. U.S. Const. art. 1, § 8, cl. 3, 11, 12. 
3. U.S. Const. art. 2, § 2, cl. 2. 
4. U.S. Const. art. 2, § 2, cl. 1. 
5. U.S. Const. art. 2, § 2, cl. 2. 
6. Alexander Hamilton et al., The Federalist papers (2019), https://guides.loc.gov/federalist-papers/text-61-70.  
7. Alexander Hamilton & James Madison, Letters of Pacificus and Helvidius (1976).  
8. Ginsberg & Hill, supra note 1, at 213-238.  
9. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 
10. Presidential Directives (2022), https://www.phe.gov/s3/law/Pages/Directives.aspx (last visited Feb 1, 2024).  
11. Ginsberg & Hill, supra note 1, at 213-238. 
12. Kathleen H. Hicks et al., Congress, Foreign Policy, and the Public, Beyond the Water’s Edge: Measuring the Internationalism of Congress, 10–18 (Sept. 26, 2018).  
13. Ginsberg & Hill, supra note 1, at 213-238. 
14. Hicks et al., supra note 12, at 10–18.  
15. Jude Blanchette et al., Speaker Pelosi’s Taiwan visit: Implications for the indo-pacific, Center for Strategic and International Studies (Aug. 15, 2022), https://www.csis.org/analysis/speaker-pelosis-taiwan-visit-implications-indo-pacific.  
16. Christina L. Arabia et al., CRS Report No. IF12040 (2024), https://crsreports.congress.gov/product/pdf/IF/IF12040.  
17. Id.
18. Id. 
19. Andrew Desiderio, Senate unanimously confirms Brink as Ukraine ambassador, Politico (May 18, 2022), https://www.politico.com/news/2022/05/18/senate-unanimously-confirms-brink-as-ukraine-ambassador-00033654.  
20. Brad Dress, Why Republicans are Souring on Ukraine, The Hill (Nov. 29, 2023), https://thehill.com/policy/defense/4331169-why-republicans-are-souring-on-ukraine/.  
21. Zoe Richards, Two GOP lawmakers become first U.S. officials to visit Ukraine since Russia’s invasion, NBC News (Apr. 14, 2022), https://www.nbcnews.com/politics/congress/two-gop-lawmakers-become-first-us-officials-visit-ukraine-russias-inva-rcna24504.  
22. Top U.S. delegation visits Kyiv, vows to ensure continuing support (July 23, 2022), https://www.reuters.com/world/europe/top-us-delegation-visits-kyiv-vows-ensure-continuing-support-2022-07-24/.  
23. NATO Secretary General Welcomes US Congress Delegation to NATO Headquarters, NATO (May 20, 2022), https://www.nato.int/cps/en/natohq/news_195748.htm.  
24. Richards, supra note 21.  
25. Michel Martin & Jason Crow, U.S. congressional delegations meets with Ukrainian leaders in Kyiv, NPR (May 1, 2022), https://www.npr.org/2022/05/01/1095839377/u-s-congressional-delegations-meets-with-ukrainian-leaders-in-kyiv.  
26. Top U.S. delegation visits Kyiv, vows to ensure continuing support, supra note 22.  
27. Dress, supra note 20. 
28. Oversight, Transparency, and Accountability of Ukraine Assistance: Hearing before the U.S. House of Representatives Committee on Foreign Affairs, 118 Cong. (2023). https://www.congress.gov/118/chrg/CHRG-118hhrg52399/CHRG-118hhrg52399.pdf. 
29. Lauren Sforza, Senate Republican says US needs to accept Ukraine will “cede some territory” to Russia, The Hill (Dec. 10, 2023), https://thehill.com/homenews/senate/4352409-senate-republican-says-us-needs-to-accept-that-ukraine-will-cede-some-territory-to-russia/.  
30. Mike Lillis, GOP infighting over Ukraine creates minefield for speaker Johnson, The Hill (Jan. 19, 2024), https://thehill.com/homenews/house/4417036-gop-infighting-ukraine-speaker-johnson/.  
31. Jim Risch & Michael McCaul, Risch, McCaul Demand Information from Gao on U.S. Assistance to Putin’s Unprovoked War on Ukraine (Dec. 8, 2022), https://www.foreign.senate.gov/press/rep/release/risch-mccaul-demand-information-from-gao-on-us-assistance-to-putins-unprovoked-war-on-ukraine.  
32. Interview with Mitch McConnell, U.S. Senator, CBS (Oct. 22, 2023).  
33. Id. 
34. Id. 
35. Id.  
36. Shalanda D. Young, Letter regarding critical needs for the American people, The White House (Aug. 10, 2023), https://www.whitehouse.gov/omb/briefing-room/2023/08/10/letter-regarding-critical-needs-for-the-american-people/.  
37. Alexander Bolton, McConnell backs speaker’s spending proposal despite lack of Ukraine money, The Hill (Nov. 14, 2023), https://thehill.com/homenews/senate/4307868-mcconnell-backs-speakers-spending-proposal-despite-lack-of-ukraine-money/.  
38. Karoun Demirjian, Republicans block aid to Ukraine, jeopardizing its fight against Russia, The New York Times (Dec. 6, 2023), https://www.nytimes.com/2023/12/06/us/politics/senate-ukraine-aid-bill.html.  
39. Brett Samuels, Trump calls border bill ‘a Death Wish’ for Republican Party: ‘Don’t be STUPID!!!’, The Hill (Feb. 5, 2024), https://thehill.com/homenews/campaign/4448556-trump-calls-border-bill-a-death-wish-for-republican-party-dont-be-stupid/. 
40. Lisa Mascaro & Kevin Freking, Senate passes $95 billion aid package for Ukraine and Israel, fate uncertain in House, PBS (Feb. 13, 2024), https://www.pbs.org/newshour/politics/senate-passes-95-billion-aid-package-for-ukraine-and-israel-fate-uncertain-in-house. 
41. Siobhan Hughes & Lindsay Wise, Mike Johnson’s Chaotic House Searches for Path on Ukraine, Wall Street Journal (Feb. 16, 2024), https://www.wsj.com/politics/policy/mike-johnsons-chaotic-house-searches-for-path-on-ukraine-9b84cd7a. 
42. Robbie Gramer, How congressional chaos hampers U.S. aid to Israel, Ukraine, Foreign Policy (Oct. 16, 2023), https://foreignpolicy.com/2023/10/16/congress-israel-ukraine-house-speaker-republicans-foreign-policy/.  
43. Jack Detsch & Robbie Gramer, U.S. budget deal has Europe questioning American resolve on Ukraine, Foreign Policy (Oct. 3, 2023), https://foreignpolicy.com/2023/10/03/ukraine-war-congress-battle-funding-republicans-balk-ukraine-aid-russia/.  
44. Arabia, supra note 16.  
45. Detsch & Gramer, supra note 43.