Presidential Residual Power in Foreign Affairs

• Author: Louis Fisher
• Position: Scholar in Residence at the Constitution Project and Visiting Scholar at the William and Mary Law School
• Pages: 1-37

PRESIDENTIAL RESIDUAL POWER IN FOREIGN AFFAIRS

LOUIS FISHER*

TABLE OF CONTENTS

I. IMPLIED AND INHERENT POWERS .................................................... 494

II. RESIDUAL POWERS .......................................................................... 495

III. ANALYZING THE BRITISH MODEL ................................................... 499

IV. VARIOUS DEFINITIONS OF RESIDUAL .............................................. 503

V. EXPANSION OF PRESIDENTIAL POWER ............................................. 508

VI. ERRONEOUS DICTA IN CURTISS-WRIGHT ........................................ 509

VII. PARTIAL CORRECTION IN 2015 ....................................................... 512

VIII. CONGRESSIONAL POWER ................................................................ 516

IX. THE STEEL SEIZURE CASE ............................................................... 519

X. CONCLUSION .................................................................................... 525

Copyright © 2019, Louis Fisher.

* Scholar in Residence at the Constitution Project and Vis iting Scholar at the William

and Mary Law School. From 1970 to 2010, Fisher served as Seni or Specialist in Separation

of Powers at Congressional Research Service and Specialist in Constitutional Law at the

Law Library of Congress. For valuable comments and advice on this article, he thanks Reb

Brownell, Henry Cohen, Neal Devins, Chris Edelson, Jenny Elsea, Bruce Fein, Herb

Fenster, Mike Glennon, Jack Goldsmith, Derek Mathis, Dick Pious, Jeff Powell, Dave

Pozen, Sai Prakash, Mike Ramsey, Rob Reinstein, Mort Rosenberg, Bob Spitzer, and

Charles Tiefer.

492 CAPITAL UNIVERSITY LAW REVIEW [47:491

INTRODUCTION

As with other branches of government, the President has access to a

combination of enumerated and implied powers. At times, Presidents have

claimed “inherent” powers, but those assertions have been repudiated by

both the Supreme Court and Congress. In Zivotofsky v. Kerry, Justice

Clarence Thomas referred to another source of presidential power: a

“residual foreign affairs power.”

1

This article analyzes the origin and

legitimacy of presidential residual powers, a term that has at least six

different meanings.

Another issue: did some Justices in Youngstown Company v. Sawyer

2

endorse residual power for the President?

3

How did presidential power in

external affairs expand because of erroneous dicta in the 1936 Curtiss-

Wright case?

4

Why did it take seventy-nine years for the Court to make a

partial correction in Zivotofsky? What are the risks to co nstitutional

government in attributing to the President a source of independent power

that is subject to multiple and erroneous interpretations? Given the need to

search for residual power in precedents established centuries ago, how

likely can scholars and the judiciary conduct that analysis in a persuasive

manner consistent with constitutional principles?

In his opinion in Zivotofsky, Justice Thomas begins by saying that the

Constitution allocates the powers over foreign affairs in two ways: “First, it

expressly identifies certain foreign affairs powers and vests them in

particular branches, either individually or jointly. Second, it vests the

residual foreign affairs powers of the Federal Government—i.e., those not

specifically enumerated in the Constitution—in the President by way of

Article II’s Vesting Clause.”

5

Justice Thomas does not define residual

power. Instead, he relies on an article by Saikrishna Prakash and Michael

Ramsey published in the Yale Law Journal in 2001,

6

a work he cites

twelve times.

7

In a possible reference to residual powers, Justice Thomas states that

the Framers “understood the ‘executive Power’ vested by Article II to

include those foreign affairs powers not otherwise allocated in the

1

135 S. Ct. 2076, 2096–97 (2015) (Thomas, J., concurring).

2

See generally 343 U.S. 569 (1952).

3

See infra Section IX.

4

See infra Section VI.

5

Zivotofsky, 135 S. Ct. at 2096–97. See also infra Section VI.

6

See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign

Affairs, 111 YALE L.J. 231 (2001).

7

See Zivotofsky, 135 S. Ct. at 2097–2107.

2019] PRESIDENTIAL RESIDUAL POWER IN FOREIGN AFFAIRS 493

Constitution.”

8

He said that precedents during the Washington

administration, including the Proclamation of Neutrality, “confirm that

Article II’s Vesting Clause was originally understood to include a grant of

residual foreign affairs power to the Executive.”

9

However, as explained

in Section V, jurors refused to convict individuals prosecuted under the

proclamation, insisting that criminal law in the United States must be made

by Congress, not the President.

10

To Justice Thomas, the stat utory issue of passports in Zivotofsky

“implicates the President’s residual foreign affairs power.”

11

Passport

regulation “falls squarely within his residual foreign affairs power.”

12

However, he then states that the passport issue can be “constitutionally

applied to consular reports of birth abroad because those documents do not

fall within the President’s foreign affairs authority but do fall within

Congress’ enumerated powers over naturalization.”

13

He adds: “[T]he

President has the power to regulate passports under his residual foreign

affairs powers does not, however, end the matter, for Congress has

repeatedly legislated on the subject of passports.”

14

In analyzing the conflict between presidential and congressional

powers over passports, Justice Thomas sides with executive authority in

this manner: “The Constitution contains no Passport Clause, nor does it

explicitly vest Congress with ‘plenary authority over passports.’ Because

our Government is one of enumerated powers, ‘Congress has no power to

act unless the Constitution authorizes it to do so.’”

15

However, as

explained in the next section, the three branches of government have never

been limited to enumerated powers––they have access to both enumerated

and implied powers.

16

Furthermore, if government were one of

enumerated powers, the President could not have access to residual

powers.

Justice Thomas turned to Locke, Blackstone, and Montesquieu to help

define the scope of presidential power.

17

Initially, he claimed that their

8

Id. at 2099.

9

Id. at 2101.

10

See infra note 129, at 88–89.

11

Zivotofsky, 135 S. Ct. at 2101.

12

Id.

13

Id.

14

Id. at 2103.

15

Id. (quoting U.S. v. Comstock, 560 U.S. 126, 159 (2010) (Thomas, J., dissenting)).

16

See infra Section I.

17

See Zivotofsky, 135 S. Ct. at 2098.