Need for re-balancing? Presidents, national security powers, and the constitution.

Author:Clayton, Cornell W.
Position:Presidential War Power, 2nd ed.; The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation - Book Review

Presidential War Power. 2nd edition, revised. By Louis Fisher. Lawrence, KS: University Press of Kansas, 2004. 318 pp.

The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation. By H. Jefferson Powell. Durham, NC: Carolina Academic Press, 2002. 165 pp.

The "war on terrorism" has ignited new concerns about the direction and goals of American foreign policy. Perhaps nothing in this debate cries out more for dispassionate analysis and historical context than claims about which branch of government is primarily empowered to make foreign policy. Enter Messieurs Fisher and Powell, two writers who have spent much of their lives not just writing about the constitutional division of powers between Congress and the president, but being involved in the political warfare that often results from that division. Louis Fisher has served for many years as a senior specialist for the Congressional Research Service at the Library of Congress. H. Jefferson Powell, a law professor at Duke University, worked for years in the Office of Legal Counsel at the Department of Justice. Thus, each has occupied a strategic position from which to witness and influence struggles between Congress and the president, one inside Congress and the other inside the executive. It is not surprising then that these two first-rate historians and constitutional scholars come to different conclusions about how our Constitution divides power between the branches.

In the short space of this review, one cannot do justice to the rich trove of historical material and argument found in these two volumes. Both authors are masters at bringing extrajudicial materials to bear on constitutional issues and at plumbing the corners of history to bring context to contemporary debates. Powell's essay is shorter and less exhaustive yet broad in its purpose, setting out to answer the question raised by Edward Corwin more than sixty years ago: "Where does the Constitution lodge the power to determine the foreign relations of the United States?" (p. 3). Corwin concluded that no definitive answer to this question exists. Powell disagrees, maintaining the Constitution does provide an answer: it grants the president authority to initiate and implement foreign policy but gives Congress the power to block most presidential initiatives (xiv, 108-33).

Powell's argument begins by describing current arguments about foreign-policy power as falling into either a "pro-presidential" or "pro-congressional" camp. He criticizes both sides for adopting a "legalist premise," the argument that "foreign-affairs controversies can and should be treated as technical legal issues" resolved by appeals to lawyers and law (p. 6). Next, the author presents the case for the "presidential-initiative" interpretation of the Constitution. The text of the document, arguments in The Federalist, and early practice, he claims, all...

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