Righting The Ship

Here are the immediate steps to ensure that the State Department serve American citizens first:

Review Retroactively. Before inauguration, the President-elect’s department transition team should assess every aspect of State Department negotiations and funding commitments. Upon inauguration, the Secretary of State should order an immediate freeze on all efforts to implement unratified treaties and international agreements, allocation of resources, foreign assistance disbursements, domestic and international contracts and payments, hiring and recruiting decisions, etc., pending a political appointee-driven review to ensure that such efforts comport with the new Administration’s policies. The quality of this review is more import- ant than speed. The posture of the department during this review should be an unwavering desire to prioritize the American people—including a recognition that the federal government must be a diligent steward of taxpayer dollars. Implement Repair. The State Department must change its handling of international agreements to restore constitutional governance. Under prior Administrations, unnecessary institutional factors in the department caused numerous logistical challenges in negotiating, approving, and implementing treaties and agreements.

This is particularly true under the Biden Administration. For example, under the Biden Administration, the State Department was considered sufficiently unreliable in terms of alignment and effectiveness such that its political leadership invoked its Circular 175 (C-175) authority to delegate its diplomatic capacity to other agencies such as the Department of Homeland Security. At time of publication, the State Department is negotiating (or seeking to nego- tiate) large-scale, sovereignty-eroding agreements that could come at considerable economic and other costs to the American people. Although such agreements should be evaluated and approved as are treaties, the Biden Administration is likely to simply call them “agreements.” The Biden State Department not only approves but also enforces treaties that have not been ratified by the U.S. Senate. This practice must be thoroughly reviewed—and most likely jettisoned. The next President should recalibrate how the State Department handles trea- ties and agreements, primarily by restoring constitutionality to these processes. He or she should direct the Secretary of State to freeze any ongoing treaty or inter- national agreement negotiations and assess whether those efforts align with the new President’s foreign policy direction. The next Administration should also direct the secretary to order an immediate stand-down on enforcement of any treaties that have not been ratified by the Senate, and order a thorough review of the degree to which such enforcement has impacted the department’s functions, policies, and use of resources.

The Secretary of State, in cooperation with the Office of the Attorney General and the White House Counsel’s Office, should also conduct a review to identify “agreements” that are really treaty commitments within the ordinary public mean- ing of the Constitution,6 and suspend compliance pending presidential transmittal of those agreements to the Senate for advice and consent. The next Administration should also move to withdraw from treaties that have been under Senate consider- ation for 20 years or more, with the understanding that those treaties are unlikely to be ratified. Under circumstances in which ratification of a stale treaty before the Senate still serves national interests, the treaty letter of transmittal and sub- mission should be updated for current circumstances. The Secretary of State must revoke most outstanding C-175 authorities that have been granted to other agen- cies during previous Administrations, although such revocations should be closely coordinated with the White House for logistical reasons.

Coordinate with Other Agencies. Interagency engagement in this new environment must be similarly adjusted to mirror presidential direction. Indeed, coordination among federal agencies is challenging even in the most well-oiled Administrations. Although such coordination is inescapable and sometimes produc- tive, agencies tend to leverage each other’s resources in ways that occasionally have off-mission consequences for the agency or agencies with the resources. Ideally, the

Secretary of State should work as part of an agile foreign policy team along with the National Security Advisor, the Secretary of Defense, and other agency heads to flesh out and advance the President’s foreign policy. Bureaucratic stovepipes of the past should be less important than commitment to, and achievement of, the President’s foreign policy agenda. The State Department’s role in these interagency discussions must reflect the President’s clear direction and disallow resources and tools to be used in any way that detracts from the presidentially directed mission. Coordinate with Congress. Congress has both the statutory and appropri- ations authority to impact the State Department’s operations and has a strong interest in key aspects of American foreign policy. The department must therefore take particular care in its interaction with Congress, since poor interactions with Congress, regardless of intentions, could trigger congressional pushback or have other negative impacts on the President’s agenda.

This will require particularly strong leadership of the Department of State’s Bureau of Legislative Affairs. The Secretary of State and political leadership should ensure full coordination with the White House regarding congressional engage- ment on any State Department responsibility. This may lead to, for example, the President authorizing the State Department to engage with Members of Congress and relevant committees on certain issues (including statutorily designated con- gressional consultations), but to remain “radio silent” on volatile or designated issues on which the White House wants to be the primary or only voice. All such authorized department engagements with Congress must be driven and handled by political appointees in conjunction with career officials who have the relevant expertise and are willing to work in concert with the President’s political appoin- tees on particularly sensitive matters.

Respond Vigorously to the Chinese Threat. The State Department recently opened the Office of China Coordination, or “China House.” This office is intended to bring together experts inside and outside the State Department to coordinate U.S. government relations with China “and advance our vision for an open, inclu- sive international system.”7 Whether China House will streamline U.S. government communication, consensus, and action on China policy—given the presence of other agencies with strong competing or adverse interests—remains to be seen. The unit is dependent on adequate and competent staff being assigned by other bureaus within the State Department.

Nonetheless, the concept is one a Republican Administration should support mutatis mutandis. The Chinese Communist Party (CCP) has been “at war” with the U.S. for decades. Now that this reality has been accepted throughout the gov- ernment, the State Department must be prepared to lead the U.S. diplomatic effort accordingly. The centralization of efforts in one place is critical to this end. Review Immigration and Domestic Security Requirements. Arguably, the department’s most noteworthy challenge on the global stage has been its handling of immigration and domestic security issues, which are inextricably related. The State Department’s apparent posture toward these two issues, which are of paramount importance to the American people, has historically been that they are of lesser importance than other issues and that they can be treated as concessions in broader diplomatic engagements. In other instances in which access to the U.S. in the form of immigrant (permanent) and nonimmigrant (temporary) visas could potentially serve as diplomatic leverage, it is almost never used. To some degree, the State Department and many of its personnel appear to view the U.S. immigra- tion system less as a tool for strengthening the United States and more as a global welfare program.

To ensure the safety, security, and prosperity of all Americans, this must change. Below are several key areas in which the department’s formal and informal postures must adjust to reflect the current immigration and domestic security environment:

Section 243(d) visa sanctions. Visa sanctions under section 243(d) of the Immigration and Nationality Act (INA),8 enacted into law to motivate countries to accept the return of any nationals who have been ordered removed from the U.S., should be quickly and fully enforced. Recalcitrant countries that do not accept receipt of their returned nationals will risk the suspension of issuance of all immigrant visas, all nonimmigrant visas, or all visas. These country-specific sanctions should remain in place until the sanctioned country accepts the return of all its removal-pending nationals and formally commits to future, regular acceptance of its nationals. Black- letter implementation of this law will demonstrate a heretofore lacking seriousness to the international community that other nations must respect U.S. immigration laws and work with federal authorities to accept returning nationals—or lose access to the United States.

Rightsizing refugee admissions. The Biden Administration has engineered what is nothing short of a collapse of U.S. border security and Visa reciprocity. The United States should strictly enforce the doctrine of reciprocity when issuing visas to all foreign nationals. For too long, the U.S. has provided virtually unfettered access to foreign nationals from countries that do not respond in kind—including countries that are actively hostile to U.S. interests and nationals. Mandatory reciprocity will convey the necessary reality that other countries do not have an unfettered right to U.S. access and must reciprocally offer favorable visa-based access to U.S. nationals. The State Department’s reaction time to other countries’ changes in visa policies with respect to the U.S. must be streamlined to ensure it can be updated in real time.

interior immigration enforcement. This Administration’s humanitarian crisis—which is arguably the greatest humanitarian crisis in the modern era, one which has harmed Americans and foreign nationals alike—will take many years and billions of dollars to fully address. One casualty of the Biden Administration’s behavior will be the current form of the U.S. Refugee Admission Program (USRAP).

The federal government’s obligation to shift national security–essential screening and vetting resources to the forged border crisis will necessitate an indefinite curtailment of the number of USRAP refugee admissions. The State Department’s Bureau of Population, Refugees, and Migration, which administers USRAP, must shift its resources to challenges stemming from the current immigration situation until the crisis can be contained and refugee-focused screening and vetting capacity can reasonably be restored.

Strengthening bilateral and multilateral immigration-focused agreements. Restoration of both domestic security and the integrity of the U.S. immigration system should start with rapid reactivation of several key initiatives in effect at the conclusion of the Trump Administration. Reimplementation of the Remain in Mexico policy, safe third-country agreements, and other measures to address the influx of non-Mexican asylum applicants at the United States–Mexico border must be Day One priorities. Although the State Department must rein in the C-175 authorities of other agencies, the Department of Homeland Security should retain (or regain) C-175 authorities for negotiating bilateral and multilateral security agreements.

Evaluation of national security–vulnerable visa programs. To protect the American people, the State Department, in coordination with the White House and other security-focused agencies, should evaluate several key security-sensitive visa programs that it manages. Key programs include, but should not be limited to, the Diversity Visa program, the F (student) visa program, and J (exchange visitor) visa program. The State Department’s evaluation must ensure that these programs are not only consistent with White House immigration policy, but also align with its national security obligations and resource limitations.