The executive power over foreign affairs

This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the U.S. government. The authors argue tha t modem scholarship has too hastily given zip on the Constitution's text an d too quickly concluded that the Constitution contains enormous gaps in for eign affairs that must be filled by extratextual considerations. In particu lar, modem scholarship incorrectly regards the text as largely unhelpful in resolving three central foreign affairs puzzles: (1) What is the source of foreign affairs powers conventionally believed to lie with the President b ut apparently beyond the President's explicit textual powers? (2) What is t he source of Congress's authority to regulate foreign affairs matters that do not seem encompassed by Congress's enumerated powers? (3) How should one allocate foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the powers to set fore ign policy, to enter into executive agreements, and to terminate treaties? Contrary to the trend in modem scholarship, this Article argues that the co nstitutional text provides a sound guide for resolving these puzzles. The a uthors derive four basic principles from the Constitution's text (and its h istory). First, the President has a "residual" foreign affairs power from A rticle II, Section 1's grant of "the executive Power." The executive power, as described by political theorists consulted by the Framers-such as Locke , Montesquieu, and Blackstone-included foreign affairs power. By using a co mmon phrase infused with that meaning, the Constitution establishes a presu mption that the President has the foreign affairs powers that were traditio nally part of the executive power. Second, the Framers thought the traditio nal executive had too much authority over foreign affairs, so they specific ally allocated many key powers (including war, commerce, and treaty-making) , in whole or in part, to other branches. These are allocations away from t he President, and thus, despite having "the executive Power," the President cannot claim independent authority in these areas. Third, although Congres s lacks a general power over foreign affairs, it has two textual fonts of f oreign affairs power: powers specifically given to it (such as war and comm erce) and its power to carry into execution powers granted to other branche s by the Constitution. The latter is a derivative power, exercisable in con junction with the President, to give effect to the President's executive po wer over foreign affairs. Finally, although the President has broad residua l power over foreign affairs, that power does not extend to matters not par t of the traditional executive power. Hence, the President cannot claim law making or appropriations power in foreign affairs.