The Founders and the president's authority over foreign affairs.

• Author: Powell, H. Jefferson

The conventional wisdom in recent scholarship is that the President exercises far greater power over foreign affairs than the Constitution authorizes. "The unmistakable trend toward executive domination of U.S. foreign affairs in the past sixty years represents a dramatic departure from the basic scheme of the Constitution.... The president is vested with only modest authority in this realm and is clearly only of secondary importance."(1) The Constitution was intended to give Congress the "preeminent role ... in the formulation of foreign policy."(2) Proponents of this view (which I shall term the "congressional-primacy" interpretation of the Constitution) sometimes disagree on details of how we are to construe the relationship between Congress and the President in the execution of foreign policy.(3) They are united, however, in their rejection of any interpretation of the Constitution that accords the President primary constitutional responsibility for the formulation of United States foreign policy.(4)

One requirement of adopting the congressional-primacy view is that one repudiate or distinguish away most of what the Supreme Court appears to have said on the subject, for the Court often has spoken approvingly of "`the generally accepted view that foreign policy [is] the province and responsibility of the Executive.'"(5) This is, to be sure, a task that the proponents of congressional primacy have been willing to undertake, at times with remarkable alacrity.(6) In turn, however, the sheer weight of inconvenient judicial comment to be dismissed(7) demands a proportionately greater emphasis on other sources of constitutional argument. It is no surprise, therefore, that proponents of congressional primacy assert that for most of the Republic's history, the primacy of Congress's authority over foreign affairs was recognized, not least by both political branches themselves. Whatever its roots, they typically assert, the idea that the President has a legitimate, lawful claim to primacy in foreign affairs--including the formulation of foreign policy--is a twentieth-century innovation in fundamental opposition to our constitutional history, just as it is to constitutional text and original intent.(8) "None of [the early] presidents ever claimed that he possessed inherent constitutional powers as chief executive or commander-in-chief that lay beyond legislative control,"(9) and, a fortiori, neither Congress nor the courts ever entertained such a claim. If this point is correct--that is, if during the formative era of our constitutional history the words and actions of the three branches repudiated (implicitly or explicitly) any presidential claim to independent authority--congressional primacy has at least one solid basis of support.

The congressional-primacy interpretation of the Constitution is, I think, an error. On balance, and despite many difficulties of interpretation and application, the Constitution is best read--as in fact it generally has been read by the courts and the executive--to accord the President exactly what congressional-primacy proponents deny: "inherent constitutional powers," some of which are "beyond legislative control," to formulate and pursue foreign policy. This Article, however, does not attempt to make this broader argument.(10) Instead, it examines the assumption of the advocates of congressional primacy that the constitutional thought and practice of the Founding era are devoid of support for the executive-responsibility view. I attempt to show that this assumption is clearly mistaken. In fact, the argument that the President possesses significant independent constitutional authority over foreign affairs is no invention of twentieth-century executive branch apologists,(11) but can be found in carefully considered statements of principle articulated by distinguished Founding-era constitutionalists in the exercise of their duties as officials or officers of the United States government. Put another way, presidential responsibility for the formulation and conduct of foreign policy was a plausible interpretation of the Constitution in the formative period of our constitutional history.

This fact, as I hope to demonstrate it to be, will not resolve our debates over the proper interpretation of the Constitution in the Republic's third century, but its implications are considerable. If executive responsibility in foreign affairs is an understanding of the Constitution with solid roots in the earliest stages of the "constitutional tradition that lends meaning to the text,"(12) the widespread scholarly assumption that such an understanding is obviously an improper reading of the Constitution is untenable. From the perspective of Founding-era constitutionalism, those who argue today for congressional primacy in foreign affairs are partisans for a hotly contested position rather than faithful proponents of an uncontroversial original meaning. For their part, the defenders of presidential authority are entitled to invoke weighty Founding-era authority in support of their fundamental premises.

The Founding-era materials this Article examines are also suggestive of the manner in which we should discuss the distribution of authority over foreign affairs. Although the materials are brief by our standards and at times cryptic in their precise implications, read as a whole they reveal a coherent pattern of understanding about how to interpret the Constitution on these issues, not simply in terms of conclusions, but also in terms of what types of arguments count. As is often the case, the Founders' own constitutional thought is significant not just as authority, but as example. In the area of foreign affairs, in which the interpretations we give the Constitution can implicate the survival of the Republic itself, the need for a common understanding of how to construe the Republic's fundamental law is of special importance.

This Article considers six early documents or sets of statements: a 1790 legal opinion written by Secretary of State Thomas Jefferson and almost certainly approved by President Washington; the executive branch's dealings in 1793 with the problems raised by French privateers; the discussions in the cabinet over the Senate's request in 1794 for diplomatic documents; the debate in the House of Representatives over a similar House request in 1796; Congressman John Marshall's famous speech in 1800 defending a decision by President John Adams; and an 1816 report of the Senate Foreign Relations Committee.(13) None of the texts this Article examines dealt at length or in a theoretical fashion with the Constitution's structuring of authority over foreign affairs: they were the product of busy officials attempting to carry out their duties under the Constitution. We must therefore spend some time reconstructing the context of their words, and the assumptions underlying their decisions. What emerges from such a close reading, I believe, is a coherent pattern of thought that accorded the President central responsibility for the foreign policy of the United States.

I.

Most agree that President Washington exercised considerable initiative in the conduct of United States foreign policy.(14) In his study of Washington's constitutional thought and practice, for example, Professor Glenn A. Phelps stresses the first president's general deference to congressional prerogative, but "when we examine Washington's words and deeds with regard to foreign and military affairs, we find a very different picture. Here, Washington willingly accepted a much more activist notion of presidential power.... [In] foreign policy and military affairs ... [Washington] envision[ed] a leadership role for the president."(15) The conventional wisdom in recent constitutional scholarship denies to Washington's actions anything more than modest constitutional significance: At most, Washington successfully exploited the President's functional advantages in foreign and military matters in order to assume a "leadership role" that in no way implied presidential independence of Congress's policymaking authority should Congress choose to exert that authority.(16) In particular, the argument goes, the Washington administration did not lay claim to broad, unenumerated foreign policy authority not tied to specific Article II powers, and it did not entertain the idea that any substantial area of presidential policymaking was constitutionally independent of congressional control.(17) These claims about the constitutional reasoning behind the actions of President Washington and his advisors are, I think, demonstrably mistaken.

In his first annual address to Congress, Washington identified the provision of adequate financing to carry out diplomacy as a matter demanding congressional attention, and did so in a manner strongly implying a constitutional division of responsibility between the legislature and the executive. Congress, Washington said, had the tasks of defining the "compensations to be made" to American diplomats and of appropriating "a competent fund designated for defraying the expenses incident to the conduct of foreign affairs."(18) The purpose of Congress's actions, on the other hand, was to provide the necessary foundation for the President's conduct of those affairs: "The interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect, in the manner, which circumstances may render most conducive to the public good...."(19) It is difficult to read this public address to mean anything other than that it is the President's duty--not Congress's--to determine "the manner ... most conducive to the public good" of conducting "our intercourse with other nations."(20) At the least, therefore, Washington was asserting authority over the processes of diplomacy.

Within a few days, the House of Representatives...