The most dangerous branch abroad.

• Author: Flaherty, Martin S.
• Position: International Rule of Law

INTRODUCTION

Let me start by pledging allegiance, at least for the purposes of this exchange, to several principles of constitutional interpretation that I suspect command widespread support among a group of Federalist Society members such as this. First, I proceed on the premise that the basic interpretive methodology applied to constitutional foreign affairs questions should be the same as to domestic affairs. I therefore decline the invitation to indulge in what has been termed "foreign affairs exceptionalism." (1) Second, and perhaps with greater personal pain, I decline the invitation to indulge in any number of progressive, avant-garde, or unconventional constitutional theories, regardless of what merit they may otherwise have. Thus, I will not defend my positions based upon unconventional views about constitutional higher lawmaking, (2) representation reinforcement or other process-based theories, (3) morally inflected interpretivism, (4) or natural law. (5) Rather, I proceed based upon good old Federalist Society-style text, history (in the sense of original understanding and ongoing custom), and structure. (6) However conventional, this hoary methodology compels only one conclusion: rejection of even the laudably moderate version of the executive foreign affairs authority theory espoused by Professor Ramsey.

In Professor Ramsey's view, the term "executive Power" in Article II includes at least some residual foreign affairs authority. (7) Therefore, according to Professor Ramsey, the default position under the Constitution is that the text does not allocate a foreign affairs power within the government, it falls, without more, to the President. (8) Elsewhere, Professor Curtis Bradley and I have termed this position the "Vesting Clause Thesis," or more broadly, "executive essentialism," (9) because it is premised on the view that a general foreign affairs power is an essential, inherent component of the "executive Power" and that the Executive Vesting Clause allocates this subcategory of executive authority to "a President of the United States of America." (10)

Now, there are stronger and softer versions of this view. Used in the wrong hands--such as those of John Yoo--the Vesting Clause Thesis, in its most potent form, could be applied not just to supplement presidential power in areas in which there is no clear grant of authority to the other branches, but as a way to foil attempts by Congress to exercise even clearly specified authority in "executive foreign affairs" areas. Accordingly, Professor Yoo has argued that the Executive's foreign affairs power is not merely residual but, in broadly defined areas, nothing short of exclusive. (11) It therefore follows that the President's general executive foreign affairs authority provides one basis for the Executive to ignore conflicting federal statutes--even and including, to take one notorious example, acts of Congress prohibiting torture (12)--should the President deem that mistreatment of detainees might yield valuable information in the "Global War on Terrorism." (13) Professor Ramsey does not go that far, and I commend him for that. Indeed, his full theory puts forward a robust vision of what legislative power in the foreign affairs domain is, and further provides that Congress should generally prevail when acting in its domain. (14) Indeed, the irony in all of this is that doctrinally, Professor Ramsey and I actually are not that far apart.

Yet, even in its kinder, gentler form, the Vesting Clause Thesis cannot and should not pass constitutional muster. As argued below, the thesis fails on the grounds that conventional methods of constitutional interpretation do not sustain it. Ordinarily, that would be reason enough to oppose what would prove to be a fairly radical constitutional innovation. Executive power essentialism, however, presents a further set of practical considerations that counsel its rejection. Simply put, it offers a simple rhetorical trope so powerful that it can and does fall into the wrong hands too readily. The Vesting Clause Thesis creates an asymmetry in constitutional interpretation whereby, at least in foreign affairs, Congress has to point to specific powers to justify its exercise of authority while the President does not. As a practical matter, this asymmetry invites and facilitates genuine abuses of executive authority, which already enjoys a comparative advantage of energy, focus, and information in foreign affairs as it is. The notion of residual executive foreign affairs authority is at once wrong in law and dangerous in practice.

Happily, these same factors that counsel against executive essentialism point to an alternative approach. Call it "interpretive symmetry." Unpacked, interpretive symmetry means simply that all "political" branches--the President, Congress, and for that matter, the courts--have to resort to conventional methods of constitutional interpretation to justify their exercise of power. In the present discussion, the critical point is that interpretive symmetry applies as fully in foreign relations law as it does in its domestic counterpart. This means that with regard to foreign affairs, the text enunciates but does not exhaust important divisions of power. Envision separation of powers, domestic or foreign, inked in at the top in a non-comprehensive fashion. This hardly resolves innumerable, more specific, interbranch turf battles. This brute textual fact in turn means that many, if not most, constitutional questions in this area will be left to be resolved by history, in the sense of original understanding, or ongoing custom, the "gloss" on the text that subsequent practice yields. (15) Yet even here, many questions lack adequate guidance. Ultimately, one may have no choice but to fall back on structural or purposive approaches. As applied, an approach based on interpretive symmetry may be neither simple nor elegant. Nevertheless, in contrast to executive power essentialism, it does boast the advantage of legitimacy.

I.

Under conventional, or for that matter many unconventional, interpretive principles, text remains the starting point for determining legitimate constitutional meaning. This brings me to my first objection to the Vesting Clause Thesis: the term "executive" simply cannot bear the massive weight that Professor Ramsey would have it bear. For starters, consider Samuel Johnson's Dictionary, though this already crosses from textualism to originalism. In Johnson's Dictionary, as in modern dictionaries, "execute" does not refer to a general foreign affairs authority. Then, as now, "execute" means to implement and render effective the laws. (16) For this reason alone, it necessarily falls to specific constitutional clauses to allocate foreign affairs authority. As Professor Bradley and I have argued, exactly such reliance was the dominant approach at the Founding. (17)

Second, as has often been pointed out, there are countertexts--specific grants of authority in Article II that would make no sense, or at the very least would be redundant, if the Executive Vesting Clause conveys foreign affairs authority en masse. Why have a Commander-in-Chief Clause? (18) Why have an Opinions Clause? (19) Why have an Ambassador Receipt Clause? (20) Moreover, why have a Treaty Clause and an Appointments Clause written the way they are: in terms of grants of power to the President, rather than as exceptions to a foreign affairs authority on behalf of the Senate or Congress? (21) So the answer cannot lie in the text. At best, the text is simply inconclusive.

II.

The answer, therefore, ostensibly comes from history. On the essentialist view, the eighteenth-century world understood executive power to encompass much more than mere law implementation. And whatever else counted as part of the "much more," the argument continues, foreign affairs authority was almost universally taken to be a component of executive power. Is this version of the history correct?

Getting the history right is often an elusive quest, especially in constitutional controversies that have endured for centuries. As Justice Jackson famously stated, in the realm of foreign relations law no less, often the historical sources are "almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." (22) But not here. There is very, little evidence to support the proposition that eighteenth-century Americans generally-or even occasionally--believed that executive power equaled foreign affairs power.

Asserting this proposition, however, brings up a problem about getting history right, which is that it usually entails exhaustive research, exhaustively presented. (23) A debate format, however, is not ideal when questions of law turn on historical rigor. A few representative sound bytes must suffice.

The first sound byte is a stark fact. Examine the four volumes of Farrand's Records of the Federal Convention, (24) the twenty or so volumes of the Documentary History of the Ratification of the Constitution, (25) and the debates of the First Congress. Take a step back and read the texts and interpretations of the sixteen state constitutions drafted between 1766 and 1787, many of which had executive power clauses. For the truly stout of heart, examine all the sources in the 690 footnotes that Professor Bradley and I compiled. (26) In those sources you will find no instance of anyone asserting that any version of an "executive authority vesting clause" or other general grant of executive power, without more, also entails general foreign affairs authority--not one. (27) With a minor precursor, (28) the first time one sees this "executive essentialism" argument in any unambiguous fashion is in Alexander Hamilton's Pacificus essays, and then only en route to arguments that rely on more specific textual grants. (29)

Nor, countering Professor Ramsey's own principal sound byte, (30) did Thomas Jefferson adopt the "executive power...