The executive power over foreign affairs

This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the U.S. government. The authors argue that modem scholarship has too hastily given zip on the Constitution's text and too quickly concluded that the Constitution contains enormous gaps in foreign affairs that must be filled by extratextual considerations. In particular, modem scholarship incorrectly regards the text as largely unhelpful in resolving three central foreign affairs puzzles: (1) What is the source of foreign affairs powers conventionally believed to lie with the President but apparently beyond the President's explicit textual powers? (2) What is the source of Congress's authority to regulate foreign affairs matters that do not seem encompassed by Congress's enumerated powers? (3) How should one allocate foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the powers to set foreign policy, to enter into executive agreements, and to terminate treaties? Contrary to the trend in modem scholarship, this Article argues that the constitutional text provides a sound guide for resolving these puzzles. The authors derive four basic principles from the Constitution's text (and its history). First, the President has a "residual" foreign affairs power from Article II, Section 1's grant of "the executive Power." The executive power, as described by political theorists consulted by the Framers-such as Locke, Montesquieu, and Blackstone-included foreign affairs power. By using a common phrase infused with that meaning, the Constitution establishes a presumption that the President has the foreign affairs powers that were traditionally part of the executive power. Second, the Framers thought the traditional executive had too much authority over foreign affairs, so they specifically allocated many key powers (including war, commerce, and treaty-making), in whole or in part, to other branches. These are allocations away from the President, and thus, despite having "the executive Power," the President cannot claim independent authority in these areas. Third, although Congress lacks a general power over foreign affairs, it has two textual fonts 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 the Constitution. The latter is a derivative power, exercisable in conjunction with the President, to give effect to the President's executive power over foreign affairs. Finally, although the President has broad residual power over foreign affairs, that power does not extend to matters not part of the traditional executive power. Hence, the President cannot claim lawmaking or appropriations power in foreign affairs.