"The Executive Power Over Foreign Affairs," Now on SSRN
Thanks to the efforts of my co-author Saikrishna Prakash (who has been posting a number of his older articles), our article The Executive Power Over Foreign Affairs (111 Yale L.J. 231 (2001)) is now on SSRN. Here is the abstract:
This article argues for a comprehensive framework for the source and allocation of the foreign affairs powers of the U.S. government, based on the text of the Constitution. Modern scholarship, we believe, has too quickly given up on the Constitution's text as a tool for resolving foreign affairs controversies. This scholarship would have one believe that the Constitution contains enormous gaps and omissions in foreign affairs that must be filled by extratextual sources. In particular, the text is seen as largely unhelpful in addressing three seemingly intractable puzzles: (i) what is the source of foreign affairs powers conventionally believed to lie with the President - to direct and recall diplomats and act as the "sole organ" of communications with foreign nations - but apparently beyond the President's explicit textual powers; (ii) what is the source of Congress' authority to regulate foreign affairs matters, such as the activities of U.S. citizens abroad, that do not seem encompassed by Congress' enumerated powers; and (iii) how should one assess the source and allocation of foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the power to set foreign policy, enter into executive agreements, and terminate treaties.
We argue that the constitutional text, properly interpreted, provides a sound guide for resolving these matters. We derive four basic principles from the textual treatment of foreign affairs. 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 traditionally part of the executive power. Second, the framers thought the traditional executive 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 the President, and thus, despite having the "executive Power," the President cannot claim independent authority in these areas: the executive power over foreign affairs is only residual, extending to matters not otherwise covered in the 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 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, the President has broad residual power over foreign affairs, but that power does not extend to matters not part of the traditional executive power. Accordingly, the President cannot claim lawmaking or appropriations power in foreign affairs.
Having described these textual principles, we test our reading against the actual practice of the Washington administration. We find that this practice corresponded closely with the model we have derived from the text. President Washington exercised broad powers in foreign affairs without specific textual authorization, and without raising any serious objections. Washington, however, also observed the limits on the executive 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.
Fifteen years later this article still represents my basic foundation for approaching foreign affairs law from a textualist/originalist perspective. There are some details I would put differently and some things I'd add (some of which I added in revisiting the topic in The Constitution's Text in Foreign Affairs), but I think the core framework has held up well despite extensive criticism. (For our response to some of the criticism, see here: Foreign Affairs and the Jeffersonian Executive: A Defense).