Introduction

The President's Foreign Affairs Powers

Introduction

Few areas of constitutional law ask as much of so little text. The Constitution speaks to foreign relations in only a handful of clauses, scattered across the articles that describe the executive and the legislature. Yet the President, the Senate, Congress as a whole, the states, and the federal courts each claim some stake in how the nation deals with other countries. Wherever the text leaves a gap, those claims meet, and the resulting disputes over who may act, and on whose say-so, are among the most structurally interesting questions in the study of separation of powers.

This chapter follows how the executive and legislative branches share, and sometimes contest, authority over treaties, other international agreements, and diplomacy. It also asks how willing courts are to police those boundaries once a dispute reaches them. Because the written text is thin, much of the law here comes from judicial decisions and from a framework for sorting out conflicts between the branches, so you will read cases alongside constitutional clauses.

No prior mastery of international law is needed. You need only the basic structure of the three branches and the idea that valid federal law overrides conflicting state law. Any specialized vocabulary is explained as it arises. The discussion begins below.