Posted: March 18th, 2023
Executive Branch Authority to Conduct Foreign Affairs
Executive Power is vested in the President of the United States by Article II of the Constitution. Article II, Section 1, Clause 1 of the American Constitution, called the ‘Executive Vesting Clause’ has been the constant focus of constitutional analysis, even at the time of its ratification. James Madison and Alexander Hamilton famously debated this clause in 1793, on the specific issue of residual authority given to the President above and beyond powers as enumerated in the Constitution. The power and authority of the President affects not only the President himself, and the two arms of the Congress, but also the freedoms and rights of U.S. citizens. The precise delineation of executive power has been the subject of notable Supreme Court cases particularly with respect to foreign affairs and war. In the United States now, due to the ‘War on Terror’, issues of executive power are again prominent topics with respect to American law and politics. To some extent, jurisprudence in terms of the President’s executive powers finds a foundation in the concurring opinion by Supreme Court Justice Robert Jackson from the Steel Seizure Case. Rendering his opinion on that case, Justice Jackson stated that Presidential powers fluctuate and are not fixed relative to whether they concur or disagree with the relative powers of the Congress. According to Kozinski, Justice Jackson prepared a sliding scale that illustrated the exercise of congressional vs. Presidential power.
While it is clear that constitutional law is relevant to issues concerning national security and foreign affairs as well as the relative distribution of power between the Congress and the President, the actual Law in these cases is not well focused. There are constitutional scholars who would contend that proper interpretation of the constitution gives the ‘preeminent role’ to the Congress with respect to foreign policy; this is taken to include not only authority to declare war but also to ‘decide on lesser acts of military hostility’. From the perspective of those who give preeminent power to the congress, the role of the President is seen to be one of execution of foreign policy but not its actual formulation. Indeed, for these scholars, there is an assumption that the preeminent role of the Congress is self-evident from the Constitution, although details and implications of this perspective may vary. Those who would give Congress a constitutionally-based preeminent power over foreign affairs contend that there has been, over the last sixty years, a clear-cut trend towards Presidential domination of United States foreign affairs. These scholars believe this ‘represents a dramatic departure from the basic scheme of the Constitution’ (Powell). As is obvious from such a statement, the opinions of constitutional scholars are not consistent with those of the Presidential administration. Indeed, over the last fifty years, there has been a growing view of the Executive branch being primary with respect to affairs of national security and foreign actions. The Executive branch has a different interpretation of the Constitution and its limits in re allocation of power. Those who would give primacy to the President aver that the Constitution gives the President authority to act independently with respect to the foreign policy of the United States. Indeed, the idea of ‘Presidential primacy’ has come not only from the Executive Branch itself, but also from opinions expressed by the Supreme Court. In several cases, recognition of foreign policy as being the responsibility of the Executive Branch has been explicitly expressed by the Supreme Court. For example, there are opinions stating that issues such as military and foreign affairs are areas for which the President has ‘unique responsibility’ (Powell).
The original objective of separating foreign policy between the Executive branch and Congress was to achieve consistency, coherence, and continuity in said foreign policy. With dual responsibility, both governmental branches can alter aspects of foreign policy, focus on a process that is fully realized, and implement and execute a beneficial foreign policy. Because the United States has a complex and often difficult global arena, formation of an effective foreign policy is not simple, and having the two branches work together on foreign policy should engender strength and clarity of approach. It is often said that the relationship between the Congress and the President is one of ‘checks and balances’. The intent of this aspect of the United States political system is to preclude any one governmental branch from becoming too powerful. Thus, division of foreign policy between the two branches should result in cooperation, coordination and consultation between the President and the Congress (Khan and Sabir).
In the field of foreign policy, it is the role of the President of the United States to lead. As Chief Executive, Chief of Foreign Policy, Chief Treaty Negotiator, Commander-in-Chief, Chief Diplomat, and Chief Appointing Authority, based on the constitution, the President dominates and controls the foreign policy of the United States. In other respects, the Congress can be considered to have an independent and powerful role in foreign policy, through its ability to approve the sale of arms, manage trade, regulate trade, ratify treaties, deny or confirm presidential appointments, use its power to declare war, and maintain the power of the purse. However, the President also retains the right of veto to block the power of Congress (Khan and Sabir).
Ultimately, the failure and/or success of the foreign policy of the United States is dependent upon the interactions between, and mutual cooperation of the Congress and the President particularly with respect to formulation of a unified foreign policy. When the two bodies disagree, lack of communication and attitudes, particularly of partisanship, can result in direct confrontation, and addressing foreign policy issues becomes far more complicated and difficult. In general, the idea of having input from the two branches is based on the concept of bipartisanship, which means that (for a two-party System such as the United States) that no single political party dominates foreign policy. The end goals are to reach a compromise that is beyond the merely partisan in terms of politics, and is for the best interests of the United States and to the benefit of other nations involved in said foreign policy. Hopefully through cooperative actions, a trust develops between the Congress and the President; this mutual trust is beneficial in the crafting of foreign policy and important issues of commerce and trade as well as internal security. There are aspects in which the necessity for the two branches to work together has resulted in delays on regional and global issues of significance. As well, discordance between the two branches is not beneficial for either foreign or domestic policies (Khan and Sabir).
Making Foreign Appointments
As outlined in the U.S. Constitution (Article II, Section 2), the President is able to nominate and appoint not only ambassadors, but judges of the Supreme Court, public consuls and ministers, and officers of the United States, with ‘the advice and consent of the Senate’. In general, the confirmation procedure for Presidential nominees is more often guided not by formalized and strict rules but rather by non-formalized customs that vary along with the variable balance of power between the Senate and the President (Gerhardt, 2000:10)
The process involved in nomination/appointment and confirmation of such nominations is a challenge given the different roles of the President and of the Senate. Indeed, nominees have been, at times, the focus of confrontation and contention between the two branches of the United States government. McCarty and Razaghian commented that the Senate’s process for confirmation of nominees is ‘entirely consistent with all its other norms, traditions and rules.’ However, often the process includes numerous delays due to the various prerogatives of individual senators (McCarty and Razaghian, 1999:37). At the time of the 111th Congress, 964 nominees were submitted for confirmation, and of these, 843 were eventually confirmed by the Senate. Indeed, as Binder stated, ‘most presidential nominees emerge from the Senate confirmation process and are eventually confirmed.’ (Binder, 2001:37). Although it is indeed the case that generally more than the majority of a given President’s nominees are ultimately confirmed, there are cases where the Senate will reject a nominee. In this case, the President will make a different selection and nomination. In further instances, when there is a wholesale disagreement of the Senate with a nominee, a filibuster may be held, to prevent the nomination from being brought forward for a vote. A filibuster is a procedural technique used to halt various issues of contention and often to engender further discussion (Khan and Sabir).
The Use of force & the Declaration of War
The President of the United States is defined by Article 1, Section 2 of the constitution as “Commander-in Chief of the Army and Navy of the United States.” Simultaneously however, the power to declare war is given to the Congress in Article 1, Section 8 of the constitution, and the Congress limits the President’s power in foreign policy. In general, Congress supports the President’s role with respect to foreign policy, assuming that the role of the President dominates for decisions concerning military deployment globally. Several cases of American military deployment and intervention have been solely at the discretion of the President. These include: Panama in 1989, Grenada in 1983, Vietnam from 1965-1973, the Dominican Republic from 1965-1966, Lebanon in 1958, and Korea from 1950-1953. However, following the Watergate Scandal and the Vietnam War, Congress became less willing to back the foreign policy initiatives of the President (Yankelovich, 1978:93).
In order to guarantee congressional participation in any use of force, the war power resolution requires consultation between the Congress and the President. However, both President Ford and President Carter authorized actions without such consultation in the 1975 Mayaguez rescue and the 1980 attempted Iran hostage rescue, respectively. Carter asserted that there was a need for secrecy, thus precluding congressional consultation (Kegley and Wittkope, 1991:434-35). At the time, there was considerable controversy over the President’s decisions with respect to Lebanon, and next President Carter’s policy for the Persian Gulf was severely attacked by Congress. Thirty-seven U.S. sailors were killed in May of 1987 by an Exocet Missile attack; the United States had, at the time, an extensive naval presence in the Persian Gulf, with a mission that included protection of Kuwaiti oil tankers during the lengthy Iraq-Iran conflagration. As hostilities continued, Congress declared the area to be under a military invasion, and introduced HR-2342 to delay deployment (Grabb & Holt, 1992:146-52; (Khan and Sabir).
Regulating and Managing Trade
Commercial policies and trade have also been the source of conflict in the relationship between the Congress and the President. During the Kennedy Administration a new position with rank of Ambassador was established, that of United States Trade Representative. The responsibilities of this position include coordination, implementation, and development of international trade policy. This individual communicates with the President on the topics of economic relations and trade. Examples of the role and activity of the Trade Representative include the Organization for Economic Cooperation and Development (OECD), United Nations Conference on trade and Development (UNCTAD), ‘1986, Uruguay Round’, and the General agreement on Trade and Tariff (GATT). These activities, controlling American trade negotiations and participation in international forums strengthen the role of the President in trade relations. Under President Carter, the activity of the Robert Strauss as Trade Representative was expanded with his involvement in the Tokyo Round of multilateral trade negotiations. A dominant role for the Trade Representative was also part of the Reagan Presidential administration (Khan and Sabir).
The United States Constitution provides the authority to regulate foreign trade and commerce to both houses of Congress, and, by delegating some authority to the President, legislative interests can be protected through congressionally established procedures and mechanisms. A ‘Fast-track’ legislative protocol for trade agreements was offered to the President by Congress in 1974. This procedure means that a bill from the President which he seeks to implement as a trade agreement is automatically introduced in the Congress. It stipulates that Congress must act in a specified time period, and that no amendments to the bill can be presented from the floor. In 2002, this was renamed Trade Promotion Authority (TPA), and is addressed in Article 1, Section 8 of the Constitution. While ‘Fast-track’ speeds up congressional action on a bill from the President, it also significantly decreases the actual power of the Trade Representative and of the President with respect to commercial and trade relations. Negotiation objectives were set forward by the Senate Finance Committee in 1974 at the time that the ‘Fast Track’ process was being developed. The intent of the addition of the ‘Fast Track’ process to the Trade Reform Act was to establish more equitable and open access to markets for U.S. export services and goods. It was also stated that the intent of the Trade Reform Act was to reduce and eliminate barriers as well as to harmonize international trade (The U.S. Congress, 1974:93).
Negotiation and Making of Treaties
Formal agreements between two or more nations are called treaties. A two-thirds vote in the Senate is required to ratify a treaty before it becomes effective, although negotiation of treaties is a Presidential power. Implementation of foreign policy, as well as initiation of such are both permitted actions for the President according to the U.S. constitution. The political resources available to the President with respect to foreign policy are threefold: crisis management, information control, and personal diplomacy (Bliss and Johnson, 1975:145-154). In some cases, Presidents have made political accords or executive agreements with heads of other governments without seeking Senatorial ratification. Examples include using executive agreements to send U.S. troops to foreign countries as well as the establishment of military installations and bases (Khan and Sabir).
In the arena of foreign affairs, information can be denied to Congress by the President. Khan and Sabir suggest that the President does not intend to withhold information from Congress. Washington himself stated that only the President can negotiate treaties; the ‘Senate and Congress are powerless in this regard’. The Senate does have the power not only to consent or deny a proposed treaty, but may also make amendments to the treaty or express reservations. In the latter two cases of reservations and amendments, if the President accepts them, negotiations with the other country must be reopened. Alternatively, the President may, if not satisfied with Senate actions abandon negotiations (Crandall, 1916:109-120).
During the Iran-Contra Hearings, Colonel Oliver North stated that the President did not have to share information with the Congress with respect to foreign policy. His opinion was that secrecy was required concerning some types of information, so that such information release might avoid negative and/or harmful results. Indeed, the President refused to honor the request of the House of Representatives in this case (Iran-Contra Hearing Transcript, 1987:11). It is within the constitutional power of the President of the United States to withhold foreign affairs information to the Congress. In part, this arises because the House of Representatives has no constitutional empowerment to make treaties. Whether or not the Senate can make treaties can been the center of dispute recently, as in the 1987 case where Congress and President Reagan disagreed concerning the 1972 Anti-Ballistic Missile (ABM) treaty and its re-interpretation. At the time, the Reagan administration was interested in testing technology as part of its planned strategic defense initiative (SDI); this testing was thought to be prohibited by the ABM treaty. Senator Sam Nunn expressed the opinion that the original ABM treaty of the Nixon administration could only be interpreted narrowly (Nunn, 1987:45-57). This contrasted with the opinion of the legal advisor to the State Department who understood the original ABM treaty to be more broadly interpretable.
Whether Congress or the President has been dominant over the last two centuries has varied. There have been periods when the Congress had its own extensive level of power, and others when the leadership of Congress was more measured. At all times the President retains an influential political status. In its early history, the Presidency was not one where the right of veto was frequently utilized, so that foreign policy was generally shared between the Congress and the President. Presidential power over the Congress was weakened as a result of Andrew Johnson’s term in office and his impeachment in 1868. More recently, we have seen the rise of Presidential power in the 20th and 21st century, under the leadership of Presidents from Franklin Roosevelt through George W. Bush. While the power struggle between the Congress and the President remains unequal, the prestige of the Presidency is not without its own power, and ultimately gives the President the ‘bully pulpit’ that can out-weigh Congress (Khan and Sabir).
Although it would appear that, according to the constitution, Congress should be preeminent with respect to money, treaties, and war, in actuality the reverse has been true. Although Congress has begun to address its functional weaknesses, issues remain. The power of Congress is unfocused and its capability to discharge and/or assume its duties is not directed in a single unified manner. Indeed, the given inducements encourage a more localized and provincial attitude rather than a generalized and broad national focus. Unfortunately, at present it would appear more likely that Congressional powers will be absorbed by the President than the reverse (Khan and Sabir).
Article II, Section 2 of the United States Constitution
Article I, Section 8 of the United States Constitution
Binder, Sarah A. ( Spring 2001).The Senate as a Black Hole: Lessons Learned from the Judicial Appointment Experience. The Booking Review 19.
Bliss, Howard and Johnson, M. Glen. (1975). Beyond the Water’s Edge: America’s Foreign Policies. (Philadelphia, J.B. Lippincott Company).
Crandall.(1916). Treaties: Their Making and Endorsement 53; CRS Study.
Gerhardt Michael J. (2000). The Federal appointment Process: A Constitutional and Historical Analysis (Durham N.C: Duke University Press).
Grabb, Cecil V. & Holt, Patt M. (1992). Invitation to Struggle: Congress, President, and Foreign Policy. Washington D.C. Congressional Quarterly 46.
Iran-Contra Hearing Transcript. (1987, July 14).
Khan, Zahid Ali and Munawar Sabir. “President Vs Congress in U.S. Foreign Policy: Cooperation or Confrontation.” Journal of Political Studies (2013): 143-158.
Kegley, Charles W. & Wittkope, Eugene R. (1991). American Foreign: Pattern and Process. (New York: Martine’s Press).
Kozinski, Alex. “Executive Power in Foreign Affairs.” Harvard Journal of Law and Public Policy (2014): 137-139.
McCarty, Nolan and Razaghian, Rose (1999, October 4). Advice and Consent: Senate Responses to Executive Branch Nomination 1985-96. American Journal of political Science 43:4.
Nunn, Sam. (Autumn, 1987).The ABM Reinterpretation Issue. Washington Quarterly 10.
Powell, H. Jefferson. “The President’s Authority over Foreign Affairs: An executive Branch Perspective.” The George Washington Law Review (2014): 527-576. Document.
The U.S.. Congress.(1974). Trade Reform Act of 1974. S.Repor, No.93-1298, 3d Cong., 2d sess.
Yankelovich, Daniel.( 1978). ‘Farewell to President to Know Best.’ Foreign Affairs 57:3.
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