Constitution, Foreign Affairs and Presidential War-making: a Response to Professor Powell

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Constitution, Foreign Affairs and Presidential War-making:
A Response to Professor Powell

David Gray Adler

INTRODUCTION

With the publication of his book, The President's Authority Over Foreign Affairs: An Essay in Constitutional Interpretation,[1] built atop two previous articles,[2] Professor H. Jefferson Powell has plunged into the headwaters of the debate over the repository of the constitutional authority to make and conduct American foreign policy, a debate he perceived as one foundering on the shoals of ill-designed legalistic premises, extreme rhetoric and hyperbole, and a relative indifference toward the role and place of practical politics in outfitting the ship of state.[3] Professor Powell explained that the disparate, antagonistic, and overly legalistic premises of the protagonists are likely to leave the issue unresolved, adrift, as it were, on a chartless sea.[4] For his part, Powell aimed to bring a voice of moderation and reason to the pitched conflict between the pro-presidential and pro-congressional scholars whom, he claimed, are on a march toward destinations pre-determined by their own ideological and political predilections.[5] Eschewing such influences--what Paul Brest described as "advocacy scholarship"[6]--in favor of what he called a strategy that is grounded in the "bases of the law," Professor Powell offered his version of the "best" reading of the "[C]onstitution of foreign affairs," a reading that not only promotes the thesis of presidential dominance but which, indeed, unleashes what he characterized as "the [P]resident's legally-unbounded authority over United States foreign policy."[7] His thesis, which exalts the concept of executive ascendancy, is not far removed from that of Justice George Sutherland, who asserted in 1936, in United States v. Curtiss-Wright Export Corporation,[8] that the President is the sole organ of American foreign policy.[9] Professor Powell tried in vain to dissociate his position from the dead weight of Justice Sutherland's opinion because, in the end, his premises, planks and pillars are largely those that support the platform upon which the Curtiss-Wright opinion rests. While it is clear, I believe, that neither the Sutherland opinion nor its scholarly progeny can find comfort in the Constitution, it has been true for roughly fifty years that the President has been functioning as the "sole organ" of U.S. foreign relations, largely unchallenged by a quiescent legislature and unchecked by a deferential judiciary.[10] For the record, Professor Powell argued that "the reality of current practice is not too distant from what it should be in principle."[11]

Professor Powell's point of departure, the principal rationale behind the book, may be found in what he considered to be Professor Edward Corwin's insufficient explanation of how the Constitution governs the conduct of American foreign policy. In his influential book, The President: Office and Powers, first published in 1940, Professor Corwin addressed a critical issue: "Where does the Constitution lodge the power to determine the foreign relations of the United States?"[12] In a passing rebuke to advocates of the "sole organ" doctrine, Corwin noted the tendency among many commentators to locate the foreign relations power "in the President," but he explained, "they would be hard put to it, if challenged, to point out any definite statement to this effect in the Constitution itself."[13] In an answer to his own question, Corwin asserted that the exercise of foreign affairs powers is contingent upon events:

[W]hat the Constitution does, and all that it does, is to confer upon the President certain powers capable of affecting our foreign relations, and certain other powers of the same general nature upon the Senate, and still other such powers on Congress; but which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve.[14]

Professor Corwin explained this constitutional arrangement in terms that scholars have embraced as aphoristic: "All of which amounts to saying that the Constitution, considered only for its affirmative grants of powers capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy."[15] Corwin observed that in the inevitable struggle for control of foreign policy, the President has emerged triumphant, a disposition that reflects what he referred to as "great [policymaking] advantages": the unity of the executive office, its ability to act quickly and secretively, its access to information, and the fact that it, unlike Congress, is in continuous session.[16] He pointed out that "despite all this, actual practice under the Constitution has shown that, while the President is usually in a position to propose, the Senate and Congress are often in a technical position at least to dispose."[17] The record or practice, or as Professor Corwin noted, the "verdict of history, in short, is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually, though by no means always, to the President."[18] Professor Corwin's emphasis on the "practice" of executive assumption of foreign policy powers, as distinct from executive adherence to constitutional principles, warrants his conclusion that "the history of the [P]residency is a history of aggrandizement."[19] Professor Corwin, himself, allowed that "it is not extravagant to say that immensely the most important single factor in the determination of American foreign policy has been presidential guidance of it," even though, as he acknowledged, the Framers rejected executive control of the nation's foreign affairs.[20]

The postulate, or indeed, the unhappy fact of presidential control of foreign affairs affords Professor Powell no ground for objection. On the contrary, Professor Corwin's description of presidential ascendancy is precisely what Professor Powell viewed as constitutional prescription. In what he characterized as his "presidential-initiative" reading of the "Constitution of foreign affairs," Professor Powell reached "legal conclusions" that, he acknowledged, "are not all that far" removed from the "pragmatic" considerations--among them, unity, secrecy, dispatch, and superior information--that Professor Corwin adduced as primary factors that gave rise to presidential control of American foreign relations.[21] Professor Powell's point of objection, rather, lay in Professor Corwin's treatment of the "Constitution of foreign affairs" as an enumeration of discrete and fragmentary grants of power, an "unnecessarily wooden view of constitutional interpretation," one apparently devoid of any rhyme or rhythm, and even devoid of an over-arching organizing principle.[22]

In stark contrast to Professor Corwin's understanding of the manner in which the Constitution governs foreign policy, Professor Powell asserted "the existence in the founding era of a coherent interpretation of the Constitution as vesting authority for the formulation and implementation of foreign policy in the [P]resident."[23] Professor Powell gave voice to what he perceived to be the Founders' interpretation through the construction of a narrative grounded on originalist premises. Accordingly, he employed (1) text and structure, (2) the views of those who framed the Constitution and those who debated its ratification, (3) the opinions and practices of early statesmen who charted and navigated the foreign relations of the nascent republic, and (4) the insights and observations embodied in early judicial opinions.

Originalism, or interpretivism, is an agreeable method of constitutional interpretation. As Professor Powell has rightly observed, "The Constitution . . . is not and has never been understood to be simply the words on the page: the Constitution is the text plus those principles which are implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments."[24] Justice Oliver Wendell Holmes noted that the words of the constitutional text involve a "constituent act," and they serve to create textual and structural relations that govern the exercise of power.[25] A distinguished constitutional scholar, Charles L. Black, reminded us that in this act of creation, the structural relations "created by the text, and inferences drawn from them must surely be controlled by the text."[26] However, Professor Powell warned that while the "words of the Constitution are authoritative, and any persuasive constitutional argument must make sense of the provision or provisions of the text that bear on the issues being considered," the interpreter, nonetheless, "is equally responsible for giving due weight and proper respect to the political and legal institutions and relationships that the text creates."[27] The imprecision of some of the language employed in legal instruments, owing to the fact that words are but signposts to the thought of the lawmaker,[28] necessitates resort to extrinsic aids that include, among originalists such as Professor Powell, (1) the Framers' purposes, (2) the Ratifiers' understanding of those purposes, and (3) the explanation of constitutional issues furnished by commentaries published contemporaneously with the drafting and adoption of the Constitution, most notably The Federalist papers, which Professor Powell justly regarded as "the most important ratification-era discussion of the Constitution's meaning."[29]

The proposition that the interpretation of textual language requires resort to extrinsic sources is equally true of the construction of textual omissions or organic lacunae, particularly in an area such as the "Constitution of foreign affairs" which, Professor Powell contended, is fairly rife with textual silences. Professor Powell wrote: "The truth is that the text of the...