The textual basis of the president's foreign affairs power.

• Author: Ramsey, Michael D.
• Position: International Rule of Law

What I want to present here is, if not an alternative to Justice Robert Jackson's famous Youngstown framework, (1) at least a complement to that framework for approaching the President's foreign affairs power. My central proposition is that the eighteenth-century meaning of "executive" power included foreign affairs powers as well as the more familiar power to execute the law. Thus, Article II, Section 1 of the U.S. Constitution--which states that "the executive Power shall be vested in a President"--grants, in eighteenth-century terms, the power to execute the law plus foreign affairs powers. This is sometimes called Hamilton's vision of executive power, but its first reasoned exposition after the Constitution's ratification was actually made by Thomas Jefferson, and that is why I have called it the "Jeffersonian" executive power in prior articles. (2)

Jefferson wrote: "The Constitution ... has declared that 'the Executive powers shall be vested in the President.' ... The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate." (3) Of course, Jefferson was not a Framer and he had at times some unusual constitutional ideas. So, why should we rely on him? I do not rely on him exclusively. I only say that if we are interested in what the Constitution meant to reasonable people at the time it was written, it is useful to explore what Jefferson suggested. Therefore, I will explain where I think Jefferson got his idea of executive power and then show why one can think the idea represents the Constitution's original meaning.

There are four basic steps in this argument. First, the key writers of the eighteenth century on whom the Framers relied, particularly Montesquieu and Blackstone, defined "executive" power to include foreign affairs powers. For example, Montesquieu wrote: "In every government, there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law." (4) In listing the "executive" powers "dependent on the law of nations," he included things like war and peace, ambassadors, defense, and national security. (5) Modern experts on Montesquieu's philosophy conclude that Montesquieu "use[s] the term 'executive power' ... to cover the function of the magistrates to make peace or war, send or receive embassies, establish the public security, and provide against invasions," and that "Montesquieu, like most writers of his time, was inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs." (6) According to constitutional historian Francis Wormuth, "[t]he famous sixth chapter of Book XI of [Montesquieu's] Spirit of the Laws ... recognizes ... the executive power in foreign relations...." (7)

Similarly, Blackstone described the "executive" powers of the English monarch as encompassing the principal foreign affairs authorities, including ambassadors, treaties, war, and letters of marque and reprisal. These "foreign concerns," Blackstone explained, are included within the powers "the exertion whereof consists the executive part of government." (8)

This in itself does not prove how the Framers chose to organize their new government. It does suggest, though, that the vocabulary that they started with defined "executive" power to include foreign affairs powers. Montesquieu and Blackstone were by far the most widely read and influential political writers in America during the founding era, enjoying wide circulation and citation. (9) Madison described Blackstone's Commentaries as "a book which is in every man's hand" and Montesquieu as "the oracle who is always consulted and cited" on separation of powers. (10) Their use of words, especially words as central to the idea of separation of powers as "executive power," was surely well-known to educated Americans. (11)

The second step of the argument is to recognize that, in the period leading up to the drafting of the Constitution, American discourse itself associated "executive" power with foreign affairs power. For example, Theophilus Parsons' influential pamphlet The Essex Result, drafted during the debate over the Massachusetts state constitution, adopted Montesquieu's terms (and foreshadowed Jefferson and Hamilton) in observing:

The executive power is sometimes divided into the external executive, and internal executive. The former comprehends war, peace, the sending and receiving ambassadors, and whatever concerns the transactions of the state with any other independent state. "The confederation of the United States of America," The Essex Result continued, "hath lopped off this branch of the executive, and placed it in Congress." (12) For this reason, the Congress (the sole branch of the national government prior to 1789), although it did not have much law execution power, was frequently called an "executive" body. According to Jack Rakove, a leading authority on the history of the founding period, Americans called the Continental Congress a "deliberating Executive assembly," the "Supreme Executive," or the "Supreme Executive Council." He explains: "The idea that Congress was essentially an executive body persisted because its principal functions, war and diplomacy, were traditionally associated with the crown, whose executive, political prerogatives, [bore] a very striking resemblance to the powers of Congress." (13)

So, as the Framers entered the drafting convention in 1787, they had the idea that "executive" functions of government included foreign affairs powers as well as law execution powers. The initial Virginia Plan presented at the Convention's outset would have allocated foreign affairs power almost in its entirety to the new executive branch. The Virginia Plan provided that "besides a general authority to execute the National laws" the new executive branch "ought to enjoy the Executive rights vested in [the Continental] Congress by the Confederation." (14) Those "Executive rights" were principally the powers of war and peace, and other related foreign affairs powers, as indicated by the vocabulary of Montesquieu, Blackstone, the Essex Result, and common usage during the Confederation period.

The delegates recognized that this language would include foreign affairs power, and some raised objections on that ground. In particular, the objecting...