Foreign Affairs Power Research Articles

The National Legislatures in the Enlargement of Mercosur: Paraguay’s Acceptance of Venezuela and Bolivia

ABSTRACTRegional integration blocs are subject to the admission of new members, which must be approved by domestic institutions. This article analyzes how the incorporation of Venezuela and Bolivia into Mercosur passed in the Paraguayan Congress. While the first case lasted from 2007 to 2013, demonstrating parliamentary opposition, the second episode took place between 2015 and 2016, suggesting convergence between the executive and legislative branches on the issue. Using process tracing, the unveiled mechanism shows how government and opposition forces act to alter the duration of the bill in Congress and that political parties have a pendular behavior according to political cleavages. Moreover, the findings of this study suggest the existence of a parliamentary veto power in foreign affairs and the importance of having homogeneous coalitions to achieve faster approvals.

The Rise of the Global Rhetorical Presidency

AbstractI introduce the concept of the global rhetorical presidency to account for a fundamental shift in U.S. presidential rhetoric and foreign policy, one that emerged at the dawn of the twentieth century. As the nation redirected impulses of westward expansion, manifest destiny, and settler colonialism to the rest of the world, U.S. presidents traveled beyond the nation's own borders to speak on the international stage. Through these acts of going global, chief executives sought to extend the United States' military, political, and psychological influence in various geopolitical regions and nation‐states, expand presidential power in foreign affairs, and elevate the United States’ image and position at home and abroad. The global rhetorical presidency also illuminates how U.S. presidents deploy the constellation and coalescence of five specific elements—body, place, image, audience, and circulation—to create and contribute to conditions of globalization, address audiences foreign and domestic, and rally international public opinion.

Adding Bite to the Zone of Twilight: Applying Kisor to Revitalize the Youngstown Tripartite

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other times, the Court appeared to jettison the Youngstown zones for uncertain statutory analyses. Responding to the changing precedent, some scholars and practitioners called for deference for executive actions in national security and beyond. Others called for using the same statutory tools as in any other case. A compromise is available. For courts seeking to remain faithful to Youngstown while recognizing calls for executive deference, I argue that they should look toward recent administrative law precedents. There, courts confront challenges similar to those in the national security and foreign affairs realms—unclear statutes and regulations, an inability to legislate with specificity, and political actors with more subject-matter expertise than the judiciary. The two-part test outlined in Kisor v. Wilkie, which focuses on whether a regulation is ambiguous and whether the character and context of the agency’s actions warrant deference, is the available compromise. The Kisor test would not only infuse clarity into Justice Jackson’s tripartite system, but would foster improved incentives for the political branches, such as encouraging the executive to utilize internal and external processes deserving of deference, while also serving as a measured restraint on the judiciary.

Congressional Administration of Foreign Affairs

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security. And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decisionmaking, the weight accorded the position of any given decisionmaker, the context in which the decision is made—together these shape the ultimate position the President takes. This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors, and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying “process controls,” as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Implied Presidential and Congressional Power

This article compares the Supreme Court’s treatment of implied presidential power to its treatment of implied congressional power. The implied powers literature usually focuses on a single branch of government’s implied power or a single implied power, such as the President’s implied foreign affairs power. This article defines implied power, something generally neglected in the literature. It then compares and evaluates the Court’s treatment of Congress and the President using three concepts underlying the leading implied power cases — constitutional custom, means/ends reasoning, and the congressional stance toward presidential power (from Justice Jackson’s concurrence in Youngstown). The article closes with a case study focusing on the question of whether a sitting President has an implied power to resist indictment to illustrate how our findings help illuminate open issues. Three somewhat surprising conclusions emerge from this analysis. First, the Court gives executive branch actions much more weight than legislation that Congress has enacted and Presidents have signed in evaluating constitutional custom. Second, the Court’s presidential powers decisions depend much more heavily on judicial institutional and policy preferences than upon express or implied congressional intent. Third, the Court often does not follow McCullogh’s holding that Congress may use any means toward the ends underlying its enumerated powers, while it sometimes applies Justice Marshall’s means/ends reasoning to create fresh presidential powers. This comparison reveals a judicial tendency to imply presidential powers more generously than congressional power, even though the Constitution’s text only authorizes implied congressional power. While the Court’s preferences for presidential power over foreign affairs and states’ rights underlie many of the examined cases, we show that the Court’s preference for presidential power goes beyond the areas of national security and foreign affairs to embrace implied presidential power to avoid legal accountability domestically. We offer a preliminary evaluation of whether the Court’s approach to implied powers undermines the rule of law. We suggest that the Court has adapted the Constitution to the needs of the Cold War and later the war on terrorism, but may need to change its approach to address the wave of authoritarianism currently sweeping the globe.

How Zivotofksy II and the Conservative Divide Over the Foreign Affairs Power Could Impact the Trump Administration

In 2015, the United States Supreme Court held in Zivotofsky v. Kerry (Zivotofksy II) that the President of the United States possesses the exclusive power under the Constitution to recognize foreign sovereigns. The holding allegedly marked the first time in the nation’s history when the Supreme Court “accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs.” Although the case was (in theory) limited solely to the recognition power, Ziovtofsky II had (and still has) significant implications for the doctrine of separation of powers and executive power generally. For example, the case marked a rare instance where the Court upheld presidential action in a Justice Jackson tier three scenario. In that light, the case serves as an additional stamp of approval on an ever-increasing power grab by executives, particularly in the field of foreign affairs. Whether it be sending troops abroad (without a congressional declaration of war or authorization of the use of force), negotiating and concluding sole executive agreements (instead of treaties), or choosing to recognize a foreign sovereign (against the will of Congress), the scope of the foreign affairs power is incredibly significant to the United States and the international legal order. Two recent events warrant revisiting Zivotofsky II. First, in November 2016, the United States elected Donald J. Trump as president. Without commenting on the legitimacy of Trump’s policy stances on issues of foreign affairs, the reality is that many — on both the left and right — believe that one of the greatest dangers to the United States and the world as a whole is those positions. Thus, while the scope of the foreign affairs power is critical regardless of who is President, Zivotofksy II’s claim of an exclusive presidential power, and especially one in the field of foreign affairs, becomes even more critical in light of a Trump presidency. This Article discusses some of the direct impacts that Zivotofksy II could have for the Trump administration. Additionally, Justice Gorsuch has replaced Justice Scalia. What makes Justice Scalia’s death so critical for the foreign affairs power is that the position he took in his dissent in Zivotofksy II, which was joined by Chief Justice Roberts and Justice Alito, may not be shared by Justice Gorsuch, and it is certainly not shared by Justice Thomas. Thus, conservatives could be divided over the scope of the foreign affairs power on some key issues, including immigration and terminating treaties, for the Trump administration.

Adios Embargo: The Case for Executive Termination of the U.S. Embargo on Cuba

The United States and Cuba have a long history of tumultuous relations, including overt and covert interventions, trade disputes, and migration crises. Yet it was the rise of the Castro regime on the island that cemented the frustration of relations between the neighboring countries. Shortly after Castro’s seizure of power, the United States began using executive power to reinstall some form of democratic governance. And though each subsequent administration modified their approach toward Cuba, some form of executive embargo has existed since the Kennedy regime. But as with all executive power, a new administration maintains the flexibility to modify previous acts in light of new circumstances. Only congress can remove this control through the promulgation of statutes, which is what they did with two statutes enacted in the 1990s. This codification effectively cemented the U.S.-Cuba embargo and tied the executive’s hands in managing relations with the island. In this article, I contend that the foreign affairs power laid upon the executive through the Constitution grants that office broad control over political and economic relations with foreign states, including power over embargos. Thus, I posit that no congressional approval is required for the executive to lift the embargo against Cuba and normalize relations with the island.

Adios Embargo: The Case for Executive Termination of the U.S. Embargo on Cuba

The United States and Cuba have a long history of tumultuous relations, including overt and covert interventions, trade disputes, and migration crises. Yet it was the rise of the Castro regime on the island that cemented the frustration of relations between the neighboring countries. Shortly after Castro’s seizure of power, the United States began using executive power to reinstall some form of democratic governance. And though each subsequent administration modified their approach toward Cuba, some form of executive embargo has existed since the Kennedy regime. But as with all executive power, a new administration maintains the flexibility to modify previous acts in light of new circumstances. Only congress can remove this control through the promulgation of statutes, which is what they did with two statutes enacted in the 1990s. This codification effectively cemented the U.S.-Cuba embargo and tied the executive’s hands in managing relations with the island. In this article, I contend that the foreign affairs power laid upon the executive through the Constitution grants that office broad control over political and economic relations with foreign states, including power over embargos. Thus, I posit that no congressional approval is required for the executive to lift the embargo against Cuba and normalize relations with the island.

UnderstandingCurtiss-Wright

The most striking feature of the Supreme Court's decision inUnited States v. Curtiss-Wright Export Corp.is its language asserting an independent and exclusive executive foreign affairs power. As “the sole organ of the federal government in the field of foreign relations,” the Court declared, the executive holds “very delicate, plenary and exclusive power” that “does not require as a basis for its exercise an act of Congress.” From the day the case was decided, it has stood as a preeminent authority for those who would magnify the constitutional role of the president by proclaiming the independent and unchecked nature of the executive's foreign affairs power.

The Law Presidential Power and Foreign Affairs in the Bush Administration: The Use and Abuse of Alexander Hamilton

Alexander Hamilton's writings, virtually alone among the framers, were invoked by President George W. Bush and his legal advisors as the cornerstone of the administration's assertions of sweeping executive powers in the areas of war and peace and national security. The Bush administration's conscription of Hamilton to justify its soaring claims of presidential power, however, represents a distortion and abuse of his views of the latter president's views, particularly those expressed in The Federalist Papers. With the loss of Hamilton as an intellectual pillar, President Bush's theory of a plenary executive power finds no support among the framers. Analysis of Hamilton's writings will repair his undeserved reputation as an apologist for expansive executive powers.

The Constitution's text in foreign affairs

Acknowledgments Introduction: A Textual Theory of Foreign Affairs Law Part I: Sources of National Power 1. Do Foreign Affairs Powers Come from the Constitution? Curtiss--Wright and the Myth of Inherent Powers 2. Foreign Affairs and the Articles of Confederation: The Constitution in Context Part II: Presidential Power in Foreign Affairs 3. The Steel Seizure Case and the Executive Power over Foreign Affairs 4. Executive Foreign Affairs Power and the Washington Administration 5. Steel Seizure Revisited: The Limits of Executive Power 6. Executive Power and Its Critics Part III: Shared Powers of the Senate 7. The Executive Senate: Treaties and Appointments 8. Goldwater v. Carter: Do Treaties Bind the President? 9. The Non-Treaty Power: Executive Agreements and United States v. Belmont Part IV: Congress's Foreign Affairs Powers 10. Legislative Power in Foreign Affairs: Why NAFTA Is (Sort of) Unconstitutional 11. The Meanings of Declaring War 12. Beyond Declaring War: War Powers of Congress and the President Part V: States and Foreign Affairs 13. Can States Have Foreign Policies? Zschernig v. Miller and the Limits of Framers' Intent 14. States versus the President: The Holocaust Insurance Case 15. Missouri v. Holland and the Seventeenth Amendment Part VI: Courts and Foreign Affairs 16. Judging Foreign Affairs: Goldwater v. Carter Revisited 17. The Paquete Habana: Is International Law Part of Our Law? 18. Courts and Presidents in Foreign Affairs Conclusion: Text as Law in Foreign Affairs Notes Index

Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of “foreign” law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the “foreign” sources become lost in translation, and the new rights become constitutive elements of “American” identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America’s federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs—as that which is “foreign” is domesticated through several routes. author. I was helped by exchanges with Dennis Curtis, Vicki Jackson, Reva Siegel, Karen Knop, Oona Hathaway, Harold Koh, Seyla Benhabib, Ariela Dubler, Catherine Powell, Elizabeth Dillon, Laura Wexler, Bert Lockwood, Kenji Yoshino, Beverly Baines, Lorraine Weinrib, Cherie Booth, Dan Esty, Kim Rubenstein, Kathryn Sklar, Anne Goldstein, Alice Miller, Angela Ward, Sarah Van Walsum, Nancy Gertner, Marsha Freeman, Jael Silliman, Ellen Dorsey, Sarah Albert, and Billie Heller, as well as those at conferences and workshops at Yale, the University of Melbourne, Columbia University, Vrije University (Netherlands), and the University of Toronto. Thanks to Gene Coakley and Camilla Tubbs for innovative library assistance, to Morris Cohen on early American materials, to former and current students including Kate Andrias, Joseph Blocher, Liz Brundige, Josh Civin, Paige Herwig, Johanna Kalb, Anita Khandalwal, Alison Mackenzie, Marin Levy, Julie Suk, Jennifer Peresie, Bertrall Ross, Laura Heiman, Hannah Hubler, and Alana Tucker, to The Yale Law Journal staff, and to Marilyn Cassella, for facilitating communication among us all. 2:13:45 PM4/24/2006RESNIK 4/24/2006 2:13:45 PM

The powers of war and peace: the Constitution and foreign affairs after 9/11

Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional. war on terror - and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords - has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration. John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy. Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history. Accessibly blending historical arguments with current policy debates, The Powers of War and Peace will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

The Bricker Amendment and Congress's Failure to Check the Inflation of the Executive's Foreign Affairs Powers, 1951-1954

The Bricker Amendment and Congress's Failure to Check the Inflation of the Executive's Foreign Affairs Powers, 1951-1954

The Bricker Amendment and Congress's Failure to Check the Inflation of the Executive's Foreign Affairs Powers, 1951-1954

The Bricker Amendment and Congress's Failure to Check the Inflation of the Executive's Foreign Affairs Powers, 1951-1954

The Structure and Pathologies of Local Selective Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances

The Structure and Pathologies of Local Selective Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances

The Structure and Pathologies of Local Selective Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances

The Structure and Pathologies of Local Selective Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances

CONSTITUTIONAL REGULATION OF THE FOREIGN AFFAIRS POWER IN KENYA: A COMPARATIVE ASSESSMENT

This article is concerned with a specialized area of constitutional theory and practice, namely the regulation of the foreign affairs powers. Foreign affairs is a wide term which expresses more than mere relations. “Affairs” include matters and things, as well as relationships and a constitutional grant of legitimate plenary powerr. This entails that foreign affairs are matters relating to foreign countries, i.e. affairs other than domestic and, specifically, matters having to do with the interests of the home country in foreign countries. In this context, foreign affairs may be identified as a function. A function is an activity specially fitted for, appropriate to or expected of some particular type of operation because of its peculiar nature, or qualifications. The foreign affairs function, thus, as Bonfield says, may be in an activity specially fitted for, appropriate to, or expected of international relations—the interests of a state in foreign states—due to the peculiar nature or attributes of such relations. In addition, “power” may be defined as the competence to decide and act that is attached to a specific function. Hence the foreign affairs power is the competenbce to decide and act in matters having to do with the interests of the home state in foreing states. It is made up principally of the following elements: treay making, diplomatic relations, recognition of states and governments, and war and peace. Appropriate regulation of the elements of the foreign affairs power is a vital element of good governance in any particular state.

Quo vadisDemocratic Control? The Afghanistan Decision of theBundestagand the Decision of the Federal Constitutional Court in the NATO Strategic Concept Case

The parliamentary control of executive power in foreign affairs in Germany suffered two severe blows last November; one may wonder whether it will ever recover. First, on 16 November 2001, Chancellor Gerhard Schröder transformed one of the most important foreign policy debates in theBundestag(Parliament) into a more general policy debate by combining the decision regarding the provision of German troops to the American-led, so-called “War on Terrorism” in Afghanistan with a vote of confidence with respect to his government, pursuant to Article 68 of theGrundgesetz(GG – Basic Law). With the fate of the Red/Green coalition government hinging on the vote, and the very existence of the Green Party at stake, it was not surprising that Foreign Minister Joschka Fischer (Greens), in his speech on the issue, took a tone more suited for a party convention than for a foreign and security policy debate. And although deploring that posture, most of the opposition speakers followed suit. It was a sad day for German parliamentary democracy. The failure of theBundestagto live up to its responsibilities is even more apparent in the declarations that accompanied the vote, which show that a considerable number of members of theBundestagvoted for thegovernmentin spite of their continuing opposition to theprovision of Bundeswehr (German Army) forces, the very conjunction rendered impossible by the use of Article 68. The use of this Article both quashed the existing strong parliamentary backing for the provision of German troops to the anti-terrorism effort in Afghanistan and elsewhere, and denied theBundestag, and the German public, a serious debate about the first German military operation outside Europe since World War II, excepting the humanitarian contributions to UN missions in Cambodia, East Timor and Somalia.

The Executive Power over Foreign Affairs

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.