The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation.

• Author: Farber, Daniel A.
• Position: Book Review

THE PRESIDENT'S AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY IN CONSTITUTIONAL INTERPRETATION. By H. Jefferson Powell (1). Carolina Academic Press. 2002. Pp. ix, 165. $ 30.00.

Jeff Powell, one of our leading constitutional historians, has given us an elegant little book on a much debated question: the respective powers of Congress and the President over foreign affairs. Much sound and fury has been produced by this constitutional debate. Powell sensibly advises that we agree on a reasonable solution and move on. He would prefer that our leaders address the merits of particular foreign policy issues rather than using constitutional law as a source of rhetorical bombs to be hurtled at each other. (p. xv) This is sound advice, and his solution has much to recommend it. But I doubt that his call will be heeded. Indeed, in the absence of an external referee, it seems unlikely that any solution could succeed in stilling the debate. To think otherwise is probably to misunderstand how constitutional arguments function in this context.

If there were to be a constitutional settlement between Congress and the President, Powell's solution would have much to recommend it. On his reading of the Constitution, "the president enjoys an extremely broad range of discretion in the making of foreign policy"--but equally importantly, Congress has "an array of means by which to react to presidential initiatives, favorable or not." (p. xv) Powell eschews what he views as the polarized and extremist positions often taken by the executive branch's lawyers and by scholars advocating congressional supremacy. (pp. 10-18) In his view, "the Constitution allocates authority along sequential lines: exclusively legislative power to create and maintain most of the tools of foreign policy followed by independent and generally exclusive executive authority to formulate foreign policy and pursue it, followed by the legislature's capacity to review, criticize and, within limits, forbid." (p. 140)

Although Powell lays much stress on presidential prerogatives, he also makes fair allowance for congressional power. Under Powell's reading of the Constitution, "Congress may freely enact whatever legislation it chooses, no matter how great its impact on foreign affairs," so long as it does "not require the president to engage in diplomacy ... in accordance with its preferences." (p. 145) Within broad limits, it can use spending conditions to influence presidential actions. (p. 143) Notably, Powell also thinks that the War Powers Resolution is constitutional. (pp. 122-125) Although the president can initiate the use of force under some circumstances, he must obtain congressional approval when the military action "rises to the constitutional level of 'war'" in terms of its scope, duration, and violence. (p. 122)

There is much to be said for Powell's vision. It fits fairly well with current and historical practice. It's at least a plausible reading of the historical record, though in my view it assumes an unrealistic degree of clarity and consensus in the views of the Founding generation. It seems reasonable, giving the President plenty of power to manage foreign relations while supplying Congress with adequate checks. Overall, if there were some external referee like the Supreme Court that could lay down the law, Powell's constitutional formulation would be an attractive candidate.

The trouble is not with this solution but with the idea that this dispute can be definitively settled. The only real point of common ground is the historical record, but the record simply isn't clear enough to dictate any one answer. Even if Powell is correct that there is in some sense a "right" legal answer about the exact boundaries between the branches, the answer is too contestable to overcome the considerable interests and biases that each side brings to the debate. Politically, constitutional rhetoric is vital for the President and Congress as each struggles to rally supporters, motivating those who agree with their positions and providing rationales for resisting the opposing side. Powell observes that the constitutional rhetoric obscures the substantive issues, but from the point of view of the political actors, this may be an important part of its function. In any event, there is no mechanism for creating a binding agreement between the branches, and neither branch can afford to unilaterally disarm its constitutional rhetoric.

I do not mean to say that the constitutional issues are completely indeterminate. What the Constitution tells us is that some balance between presidential initiative and accountability is required, but it does not specify the balance with precision. Historical practice has clarified a number of issues. By now, each side is in comfortable possession of a certain amount of territory, whether because of constitutional text, original understanding, historical practice, or contemporary exigencies. But there is a large "no man's land" where neither side has an assured claim, and each side also makes occasional raids into the other's home territory.

The first two sections of this review analyze Powen's claim that a clear legal solution exists. Part I considers the argument that the "vesting clause" in Article II provides the president with a clearly defined reservoir of "executive power," forming a basis for presidential control of foreign affairs. Powell repeatedly invokes this argument, though it is not his main reliance. (pp. 44-45, 74, 76, 93-94) I doubt, however, that any such clear general understanding of executive power was entertained by the individuals who ratified the Constitution. Undoubtedly, the Framers had some general conception of executive power, but it was probably as cloudy and disputed as our contemporary ideas on the subject.

Part II then considers Powell's argument that later practice provides clear answers to these questions. Here, I think he is right in part, but I believe that some critical aspects of later practice are too ambiguous or contested to form a reliable guide. He relies almost entirely on the practice of early administrations, which (not surprisingly) favored executive power. But whether these practices were widely accepted as legitimate is unclear. Powell attempts to bolster the authority of the early executive claims by relying on the stature of the men who made them and on the basic plausibility of their claims. Here again; I think he makes a reasonable case but overstates its persuasive force.

Finally, Part III considers Powell's goal of lessening the role of constitutional rhetoric in the struggle between the branches. Powell complains that the "chief problem with current practice, and it is a serious one, is the focus on legal disputation that follows Like clockwork from the radically opposed constitutional viewpoints at play in foreign-policy discussion." (p. xv) But we should not expect to see Powell's hoped-for switch to a less bombastic, more substantive discourse about foreign affairs. In the absence of an external referee who could provide a disinterested judgment, constitutional argument is not necessarily designed to persuade an objective observer. Rather, it will often be used to appeal to the loyalties of wavering elements within Congress or within the executive branch itself, allowing the President and the congressional leadership to garner support from individuals who may be unwilling or unable to endorse their view of the merits of the dispute.

As both lawyers and scholars, we have a natural tendency to think of constitutional disputes as addressed to some objective observer. But a better analogy here would be to labor-management disputes, in which both sides use various economic and rhetorical weapons to sway the outcome. As in labor-management disputes, some issues are not seriously contested, and the past interactions of the parties count for a great deal. Both sides have an incentive to reach a deal, but not at the expense of their own interests. Foreign relations law, then, can be considered the outcome of two centuries of strife and bargaining between the two branches. Collective bargaining agreements may be a better analog than judicial opinions, if we are seeking to understand how this form of law comes into existence.

1. THE ENIGMATIC GRANT OF EXECUTIVE POWER

   Powell rests part of his case on the general grant of the "executive power" to the president. In analyzing presidential power, we should begin, at least, with the text. Article II opens with the statement: "The executive Power shall be vested in a President of the United States of America." After this "vesting" clause, almost half of Article II is dedicated to describing the election procedure, the qualifications for office, the president's salary arrangements, and similar matters. The first section of Article II then closes with the oath clause, requiring the president to swear that he will "faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the constitution of the United States." The next two sections are about half as long, combined, as section 1. They set out some specific presidential powers. For present purposes, two sets of powers are crucial. First, the president is "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States." Second, he is empowered to receive foreign ambassadors and to appoint U.S. ambassadors (with the consent of the Senate). Third, he can make treaties, also with the consent of the Senate. Article II also contains a hodgepodge of less relevant powers of varying degrees of significance--to issue pardons, to give the State of the Union Address, and to demand the opinions of...