There is no comprehensive grant of a foreign affairs authority in the Constitution. Rather, the constitutional text carefully enumerates and allocates to the three branches of government a series of specific foreign affairs powers, responsibilities and duties. The relatively lean text, and the fact that it omits mention of particular powers has no doubt contributed to the constitutional tension, controversy and occasional crises that have marked American foreign affairs. Nevertheless, the Constitution vests in Congress the bulk of the nation’s foreign policy powers, a design that assigns to Congress senior status in a partnership with the president for the formulation, management and conduct of U.S. foreign policy. The constitutional blueprint for foreign affairs reflects the Constitutional Convention’s penchant for collective decision making and its fear of unilateral executive power.
This arrangement, however, has been overwhelmed in the post-Cold War era by sweeping assertions of unilateral presidential power that have laid the basis for a presidential monopoly over foreign affairs and advanced a conception of executive authority so capacious that is has produced a wide gulf between constitutional principle and governmental practice. To understand the constitutional allocation of foreign affairs powers, it is necessary to examine the Constitution—the text, its design, the intentions of the Framers, and its history.
The fact of executive domination of American foreign policy renders it a surprise to many citizens when they learn that the Constitution grants to Congress the lion’s share of the nation’s foreign affairs powers. This assignment reflects, first, the overwhelming preference of the Framers at the Constitutional Convention and the Ratifiers in the various state ratifying conventions for collective decision making in foreign as well as domestic affairs and, second, their equally adamant opposition to unilateral executive control of U.S. foreign policy. This constitutional arrangement is evidenced by specific, unambiguous textual knowledge, almost undisputed arguments by Framers and Ratifiers, and by logical, structural inferences from the doctrine of separation of powers. The design, moreover, is compelling and relevant for twentieth-century America for at least three reasons. For one, separation of powers issues are perennial, for they require consideration of the proper repository of power. Contemporary questions about the allocation of power between the President and Congress in foreign affairs are largely the same as those addressed two centuries ago. For another, the logic of collective decision-making in the realm of foreign relations is as sound today as it was during the Founding period. And, although it is true that the world and the role of the United States in international relations have changed considerably over the past 200 years, it is nevertheless the case that most questions of foreign affairs involve routine policy formulation and do not place a premium on immediate, responsive action. A more detailed understanding of the constitutional landscape and the values that characterize it would prove beneficial both to government officials, who must forge policy in light of the constitutional design for foreign affairs, and to citizens, who engage in critiques of those policies.
The preference for collective, rather than unilateral presidential decision making runs throughout those provisions of the Constitution that govern the conduct of foreign policy. In addition to its exclusive jurisdiction over legislation and appropriation, Congress derives broad authority from Article I, Section 8, to “provide for the Common Defence,” to “regulate Commerce with foreign Nations,” to define and punish Piracies and Felonies committed on the high seas . . .and offense against the Law of Nations,” and make rules governing immigration and naturalization. Congress, alone, has the power to “declare war” and to “grant Letters of Marque and Reprisal” as well as to develop rules regarding “Captures on Land and Water.” Congress also possesses the authority to raise, support, and maintain an army and navy, to “make Rules” for the regulation and government of the “land and naval Forces” and to call forth “the militia to execute the Laws of the Union, suppress insurrections and repel Invasions.” It is also assigns to Congress the power and responsibility to organize, arm, discipline, and govern the militia.
As Article 2, Section 2, of the Constitution indicates, the president shares with the Senate the power to make treaties and appoint ambassadors. Specifically, the president is granted the authority “by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Another provision, Article 6– the “Supremacy Clause”– makes treaties, along with the Constitution and acts of congress, “the supreme law of the land.” The constitutional of authority to the president to “appoint Ambassadors, other public Ministers and Consuls” is subject to the advice and consent of the Senate.
The Constitution assigns to the president only two exclusive roles in foreign affairs. Article II provides that the president is commander in chief of the army and navy but, as we have seen, he acts in this capacity by and under the authority of Congress. As Alexander Hamilton and James Iredell explained, the president, in this capacity, is merely first admiral, or general of the armed forces, after war has been authorized by Congress or in the event of a sudden attack against the United States. And the President also has the power to receive ambassadors. The “Reception Clause,” or “Recognition Power,” will be explained in detail below, but James Madison, Alexander Hamilton and Thomas Jefferson agreed that this clerk-like function was purely ceremonial in character. Although the function has come to entail recognition of states at international law (thus the “recognition” power), which carries with it certain legal implications, this founding trio contended that the duty of recognizing states was a “duty,” devoid of discretionary authority, and more conveniently placed in the hands of the executive than in the legislature. This list exhausts the textual grant of authority with respect to foreign affairs jurisdiction. The president’s constitutional powers are few and modest, and pale in comparison with those vested in Congress.
The judiciary is assigned constitutional power that bears on the conduct of foreign policy. Article 3, Section 2, confers upon the Supreme Court original jurisdiction in “all Cases affecting Ambassadors, other public Ministers and Consuls,” while it generally lodges in the federal courts jurisdiction in “controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
The Constitution also imposes some significant and specific prohibitions, the effect of which is to ensure that control over foreign relations is vested in the national government. For purposes of foreign relations, federalism is virtually irrelevant. Bulked by the Supremacy Clause, federal acts are supreme and require the acquiescence of states. In United States v. Belmont (1937), the Supreme Court observed: “In respect of our foreign relations generally, state lines disappear. As to such purposes the State . . . does not exist.” Thus, Article I, Section 10, categorically forbids states from entering “into any Treaty, Alliance, or Confederation.” Moreover, no state may, without the consent of Congress, “enter into any Agreement or Compact . . . with a foreign power, or engage in War, unless actually invaded,” or in “imminent danger” of invasion. Other prohibitions touch upon the conduct of foreign affairs, although none of them in practice is very important. Thus, Article I, Section 9, provides that no holder of any “Office of Profit or Trust” under the United States may “accept of any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign state,” without the consent of Congress.
Some foreign affairs powers are not mentioned in the Constitution. For example, the Constitution is silent on the repository of authority to terminate treaties, recognize foreign governments and states, and make or declare peace. It may be plausibly argued that these powers are subsumed under enumerated grants of power or fairly inferred from the Framers’ intentions of other constitutional provisions. This approach is faithful to the principle, articulated by the Court in Reid v. Covert (1957), that the government is “a creature of the Constitution. It’s powers and authority have no other source.” It has been asserted, however, that foreign relations constitute an exception to the principle that the federal government has only those powers expressly enumerated in the Constitution. In the controversial decision of United States v. Curtiss-Wright Export Corp. (1936), the court announced that the president’s powers over foreign affairs are not derived from the Constitution, but are a direct inheritance from the Crown of England. That case involved the constitutionality of an embargo that President Franklin D. Roosevelt had imposed upon the export of arms to Bolivia and Paraguay during the Chaco War. Roosevelt had issued the embargo on the basis of authority delegated to him in a joint passed by Congress.
Justice George Sutherland argued that federal power in the field of foreign affairs differed radically from that which governed internal matters. He observed that the internal federal power had been carved from “the general mass of legislative powers then possessed by the states,” but that this was not at all true of the control of foreign policy, which had never been in the possession of the states. Instead, he maintained, before the Revolution general power had been lodged in the British Crown. But with the Declaration of Independence, “the power of external sovereignty had passed . . . to the colonies in their collective and corporate capacity as the United States.” The power over foreign affairs was “older than the Constitution” and had been inherited by the newly formed “Union” from the Confederation. It did not depend upon any direct grant of authority from the Constitution, for it is a necessary attribute of nationhood and sovereignty. Not only did the foreign affairs powers inhere in the union, but it belonged to the president, who would exercise “plenary” power in his capacity as the “sole organ” of American foreign policy (a concept explained at length below), although the opinion did not explain how such authority came to belong to the executive.
The planks and premises of Justice Sutherland’s opinion have been roundly criticized. Scholars have condemned his reading of Anglo-American legal history by demonstrating that in 1776 states were sovereign entities. Article 2 of the Articles of Confederation stated: “Each State retains its sovereignty, freedom, and independence, and every power . . . which is not . . . expressly delegated to the United States, in Congress assembled.” As sovereign entities, and jealous of their sovereignty, states only delegated powers to the Continental Congress. Through Article 9, for example, states delegated the war and treaty powers. That grant alone undermines Sutherland’s premise that these powers were derived from a source other than the states. Moreover, even if it were assumed that the power of external sovereignty had been by some method transferred directly from the Crown to the union, it remains to be explained why that power would be vested in the president. Justice Felix Frankfurter noted in Youngstown Sheet and Tube Co. v. Sawyer (1952): “[T]he fact that power exists in the Government does not vest it in the President.” Indeed, the Supreme Court has ruled on several occasions that the sovereign power in foreign affairs is held by Congress. There is nothing in Sutherland’s theory that would explain the location of this power in the presidency.
The contention, moreover, that the conduct of foreign policy is not restricted by the Constitution is at odds with James Madison’s statement in Federalist No. 45 that “the powers delegated by the proposed Constitution to the federal government are few and defined . . . [they] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” Thus the foreign affairs powers are tethered to the Constitution. In Youngstown, Justice Hugo Black, speaking for the Court, delivered a weighty rebuke to the claim of “extra-constitutional” power. In the same case, Justice Robert H. Jackson dismissed Justice Sutherland’s claim of an extra-constitutional presidential power as mere “dictum.” The theory of extra-constitutional authority is irreconcilable with the premise of American constitutionalism: All powers of the government—expressed and implied—have been delegated by the sovereign. As a consequence of this constitutional principle, all governmental acts—executive, legislative and judicial—must be grounded within the four corners of the Constitution.