The Executive Power over Foreign Affairs

Abstract

This article argues for a comprehensive framework for source and allocation of foreign affairs powers of U.S. government, based on text of Constitution. Modern scholarship, we believe, has too quickly given up on Constitution's text as a tool for resolving foreign affairs controversies. This scholarship would have one believe that Constitution contains enormous gaps and omissions in foreign affairs that must be filled by extratextual sources. In particular, text is seen as largely unhelpful in addressing three seemingly intractable puzzles: (i) what is source of foreign affairs powers conventionally believed to lie with President - to direct and recall diplomats and act as sole organ of communications with foreign nations - but apparently beyond President's explicit textual powers; (ii) what is source of Congress' authority to regulate foreign affairs matters, such as activities of U.S. citizens abroad, that do not seem encompassed by Congress' enumerated powers; and (iii) how should one assess source and allocation of foreign affairs powers not specifically mentioned in text and claimed by both President and Congress, such as power to set foreign policy, enter into agreements, and terminate treaties. We argue that constitutional text, properly interpreted, provides a sound guide for resolving these matters. We derive four basic principles from textual treatment of foreign affairs. First, President has a foreign affairs power from Article II, Section 1's grant of the Power. The power, as described by political theorists consulted by framers - such as Locke, Montesquieu and Blackstone - included foreign affairs power. By using a common phrase infused with that meaning, Constitution establishes a presumption that President has foreign affairs powers traditionally part of power. Second, framers thought traditional had too great a power over foreign affairs, so they specifically allocated many key powers, in whole or in part, to other branches: war, commerce, treatymaking, etc. These are allocations away from President, and thus, despite having executive Power, President cannot claim independent authority in these areas: power over foreign affairs is only residual, extending to matters not otherwise covered in text. Third, Congress has no general power over foreign affairs, but it has two textual sources of foreign affairs power: powers specifically given to it (such as war and commerce), and its power to carry into execution powers granted to other branches by Constitution. The latter is a derivative power exercisable in conjunction with President, to give effect to President's power over foreign affairs. Finally, President has broad residual power over foreign affairs, but that power does not extend to matters not part of traditional power. Accordingly, President cannot claim lawmaking or appropriations power in foreign affairs. Having described these textual principles, we test our reading against actual practice of Washington administration. We find that this practice corresponded closely with model we have derived from text. President Washington exercised broad powers in foreign affairs without specific textual authorization, and without raising any serious objections. Washington, however, also observed limits on power over foreign affairs we suggest: he did not claim powers specifically allocated to other branches, nor did he claim lawmaking or appropriations power in support of his foreign affairs powers.