Sources of Foreign Affairs Power

Sources of Foreign Affairs Power

Every dispute over presidential action abroad starts with one question: where did the President get the authority to do this? At home the answer is usually easy to locate, because Article I gives Congress the lawmaking power and Article II directs the President to carry out what Congress enacts. Foreign relations are harder to map. Article II makes the President commander in chief and gives the President the power, with the Senate's advice and consent, to make treaties and appoint ambassadors.¹ Other powers that touch foreign relations sit with Congress, and some of the most important tools of diplomacy appear in no clause at all. A President who acts in that gap needs a source of authority, and a court asked to review the act needs a method for deciding whether the source is sufficient.

This section builds that groundwork in four steps. The first looks at what the text expressly grants, since every later argument about implied authority has to be measured against it. The next steps ask what the President may claim beyond the written grants: a power the Constitution never names yet courts treat as belonging to the President alone, and a broader claim that foreign affairs authority flows from national sovereignty itself. The last step supplies the framework courts now use to sort presidential acts into those that stand on strong ground and those that do not, depending on how the act relates to the will of Congress. The treaty and executive agreement cases later in the chapter are applications of this framework, so the discussion starts below with the explicit grants.

Enumerated Article II Powers

The written grants come first, because every later argument about implied presidential power has to be measured against what the text actually says. Article II, Section 2 makes the President commander in chief of the Army and Navy, and of the state militias when they are called into federal service. The same section gives the President the power to make treaties, but only with the Senate's advice and consent and only if two-thirds of the senators present concur. It also lets the President nominate ambassadors, other public ministers, and consuls, who are appointed only with the Senate's advice and consent.²

Section 3 adds two further duties that matter abroad: the President receives ambassadors and other public ministers, and takes care that the laws be faithfully executed.³ The reception clause looks ceremonial, yet it becomes the textual root of the recognition power taken up next, and the Take Care Clause ties the President to carrying out the laws that Congress and the treaty process produce. Section 1 supplies a broader hook, because its opening sentence vests the executive power in the President without listing what that power includes.⁴ Whether that vesting sentence adds powers beyond the listed ones remains contested.⁵ In Myers v. United States the Court quoted Alexander Hamilton's argument that the listed powers illustrate the executive power without exhausting it, subject to express exceptions such as the Senate's role in making treaties and Congress's power to declare war.⁶ That argument is one side of a dispute, and later sections ask how far implied authority actually reaches.

Set beside those grants, the text gives Congress its own foreign affairs powers. Article I, Section 8 lets Congress regulate commerce with foreign nations, declare war, grant letters of marque and reprisal, raise and support armies, and define and punish offenses against the law of nations.⁷ Congress also controls the money, and it may refuse new funds or bar the spending of funds already appropriated for a military operation it opposes, as it did toward the end of the Vietnam War.⁸ Read together, the presidential grants pair off against congressional or Senate counterparts:

• Command of the armed forces belongs to the President, while Congress declares war, raises armies, and decides whether to fund them.⁹
• Treaty making belongs to the President, but a treaty takes effect only if two-thirds of the senators present concur.¹⁰
• The nomination of ambassadors belongs to the President, but the appointment takes effect only with the Senate's consent.¹¹

The overlap has a logic that you can reconstruct from the structure. Dealing with other governments calls for one actor who can negotiate in confidence, move quickly, and speak for the whole nation with a single voice, and that need explains why negotiation, the reception of ambassadors, and military command sit with the President. A foreign commitment can also bind the entire country to obligations or to war, so giving that same actor the last word would leave nothing between one official's judgment and a national commitment. The Senate's supermajority requirement answers that risk, since a little more than one-third of the senators present can block a treaty. Congress's powers over declaring war and funding answer it for military action in the same way. The price of this design is that each branch holds a piece of the same subject and can claim that a disputed power belongs to it, while a text this sparse does little to settle the claim.¹² That is why boundary disputes arise.

Two applications show where the line falls. When the President arranges joint naval exercises with France through an executive agreement, the act rests on the commander-in-chief power that Article II gives the President independently, so skipping the Senate neither usurps its role nor enlarges the executive's domain. The same reasoning supports using an executive agreement to fix the location of a U.S. embassy in France, because dealing diplomatically with foreign governments flows from the power to receive ambassadors.¹³ The result changes when the power at stake belongs to Congress. If the President cites a Senate-approved mutual defense treaty as authority to send troops into a long foreign war with no congressional declaration, the argument fails, because the power to declare war sits with Congress as a whole and approval by the Senate alone cannot take its place.¹⁴ Many mutual defense treaties anticipate the problem by committing the United States to respond only in accordance with its constitutional processes. What separates the two cases is whose power the act exercises: the naval exercise falls within an Article II grant the President holds independently, while the decision to go to war belongs to Congress, and the treaty route gives the Senate, not the whole legislature, a voice.

Recognition and Reception

The shared powers described above do not prevent every foreign affairs power from landing in one branch's hands, and recognition is the clearest example. Recognition is the formal act by which the United States acknowledges that an entity is a sovereign state, or that a particular regime is that state's legitimate government. The act carries legal consequences, which is why governments treat it with care. A recognized sovereign may sue in United States courts and may claim sovereign immunity when sued, and its official acts within its own territory receive deference under the act of state doctrine, a rule under which American courts accept those acts as valid rather than reviewing them. Regular diplomatic relations at international law also depend on recognition.¹⁶

The puzzle is that the Constitution never uses the word recognition, in Article II or anywhere else.¹⁷ The usual textual starting point is the Reception Clause, which directs that the President "shall receive Ambassadors and other Public Ministers."¹⁸ At the founding that clause drew little attention, and Hamilton described the reception of ambassadors in the ratification debates as a ministerial duty of dignity, largely without consequence. Prominent international scholars of the period, however, treated receiving an ambassador as equivalent to recognizing the sovereignty of the sending state. A clause directing the President alone to receive ambassadors would therefore have been understood to acknowledge a power to recognize other nations, so the clause supports the power without being its only source.¹⁹

Two other Article II powers fill out the argument from text and structure. The President makes treaties with the Senate's consent and nominates ambassadors, who are appointed only with that consent.²⁰ Those powers matter because international law lets a state be recognized in several ways: by receiving its ambassador, by concluding a bilateral treaty with it, or by formally opening diplomatic relations, including by sending an ambassador to it. Each route depends on presidential action. The President alone negotiates treaties, and the Senate cannot conclude or ratify one without the President. The President nominates and dispatches the nation's ambassadors, and Congress cannot send one without him. The President can also open diplomatic channels simply by dealing directly with foreign heads of state and their ministers, whereas Congress holds no constitutional power with which it could begin diplomatic relations on its own.²¹ Because these specific clauses already supply the power, the Court did not need to decide whether the Vesting Clause adds further support.²²

Showing that the President may recognize does not yet show that Congress may not. In Zivotofsky v. Kerry the Court held that the Constitution gives the recognition power to the President and that the power is exclusive.²³ The structural reasoning runs from the means to the monopoly: the Constitution hands the President several ways to recognize a state on his own initiative and hands Congress none, which suggests that the whole power sits in the executive.²⁴ Function points the same way. A foreign government must know, before it opens relations or commerce with the United States, whether its ambassadors will be received, whether its officials will be immune from suit in federal court, and whether it may bring suits here, and those assurances cannot be equivocal.²⁵ A nation cannot give them if two branches may announce different answers, and between the two political branches only the President has unity at all times, along with the capacity for the delicate and often secret contacts that lead to a recognition decision.²⁶ History adds support. From the first Administration forward, Presidents have claimed unilateral authority to recognize foreign sovereigns, and Congress has for the most part acquiesced, so that on balance practice favors the President even though it is not entirely one-sided.²⁷

The passport dispute that produced the holding shows exclusivity at work. When the United States recognized Israel in 1948, President Truman's statement did not acknowledge Israeli sovereignty over Jerusalem, and no President since has officially acknowledged any country's sovereignty there. State Department passport policy reflects that position by requiring citizens born in Jerusalem to list "Jerusalem" rather than "Israel" as their place of birth.²⁸ In 2002 Congress enacted § 214(d), which lets a citizen born in Jerusalem require the Secretary of State to record "Israel" instead, and when the Department refused, the citizen sued to enforce the statute.²⁹ The Court reasoned in a chain. If the recognition power is to mean anything, it must include the ability to maintain a recognition position in the President's own statements and those of his agents. If Congress could command the President to state a position inconsistent with his own, Congress would in effect override his recognition decision, because international law allows recognition by written or oral declaration. Congress cannot pass a law, in its own voice, that effects formal recognition, and it follows that Congress cannot force the President to contradict his earlier statement.³⁰ Because a passport's place-of-birth entry has long been treated as an official executive statement implicating recognition, § 214(d) fell as an attempt by Congress to exercise an exclusively executive function.³¹

The case reached that merits ruling only after an earlier trip to the Supreme Court. In 2012, in Zivotofsky v. Clinton, the Court held that the dispute presented no political question, because the plaintiff asserted a statutory right even though the underlying subject had political implications.³² Courts may therefore decide whether a statute intrudes on the recognition power, even though they do not decide whom the nation should recognize.

Two dissents supply the counterargument. Chief Justice Roberts, joined by Justice Alito, read the text differently: the Reception Clause appears among the duties listed in Section 3 rather than the powers granted in Section 2, and the treaty and ambassador powers are shared with the Senate, so neither supports an inference of exclusivity.³³ He found the history to point in both directions, noting that Presidents Jackson and Lincoln voiced doubt about exclusive authority, and he observed that congressional acquiescence matters when the President acts without Congress's authorization but not when the President defies a statute. He added that even an exclusive recognition power would not decide the case, because an optional passport designation does not change the nation's position on Jerusalem.³⁴ Justice Scalia's dissent attacked the premise from another angle. Recognition, he reasoned, is a legal act, and exclusive authority over legal commitments about sovereignty does not stretch to every statement or document that mentions a border.³⁵ He would have read Congress's enumerated powers, such as the power over foreign commerce, to cover the passport rule, and he rejected the idea that in a field of shared authority the President's policy overrides a statute.³⁶ The dispute between majority and dissents is a dispute over scope: the majority holds that recognition has meaning only if the President controls the statements that express it, and the dissenters treat recognition as a narrower act. The Chief Justice also stressed that the decision let the President prevail against an Act of Congress in foreign affairs, a posture in which presidential power ordinarily sits at its lowest, and exclusivity is what changed that outcome here. The framework behind that observation is taken up later in this chapter.³⁷

Exclusivity is narrow, and the majority drew its boundary with care. The President alone effects the formal act of recognition, yet many decisions that shape the nation's dealings with a recognized country require Congress. Congress regulates commerce with foreign nations, writes naturalization rules, defines and punishes offenses against the law of nations, declares war, and makes rules for the armed forces. The Senate must consent to treaties and ambassadors, and the President cannot build an embassy abroad without an appropriation.³⁸ Formal recognition can look hollow without an ambassador, eased trade restrictions, and treaties, and each of those requires the Senate or the whole Congress, so disagreement with the President's recognition policy carries real consequences.³⁹ The majority also declined to read the description of the President as the sole organ of the nation in international relations, found in United States v. Curtiss-Wright Export Corp., as an unbounded foreign affairs power, since that description was unnecessary to a holding about congressionally authorized action.⁴⁰ The next section returns to that decision.

The line to draw on an exam runs between a congressional act aimed at the recognition decision itself, or at forcing the President to contradict it, and a congressional act that shapes the policies before and after recognition. The first kind intrudes on the exclusive executive power, while the second falls within Congress's ordinary appropriation, commerce, and lawmaking powers.

Curtiss-Wright and Inherent Power

The enumerated grants leave gaps, and one of the most quoted opinions in foreign affairs law offers a way to fill them without pointing to any clause at all. That opinion is United States v. Curtiss-Wright Export Corp., and it is easiest to understand by starting with what the Court actually decided. In May 1934 Congress passed a joint resolution authorizing the President to prohibit the sale of arms and ammunition to countries engaged in the Chaco border conflict in South America, and President Roosevelt issued the embargo proclamation the same day.⁴² The defendants were later indicted for conspiring to sell fifteen machine guns to Bolivia, and they defended by attacking the resolution itself as an unconstitutional delegation of lawmaking power.⁴³

The challenge looked strong for its time. The nondelegation doctrine, which forbids Congress from handing its legislative power to another branch without limits, was being enforced aggressively when the case was decided, and the resolution gave the President wide discretion with no detailed standards to guide it.⁴⁴ The Court sustained the resolution anyway. It found it unnecessary to decide whether the same grant of discretion would be valid if it concerned only internal affairs, and it asked instead whether the delegation could stand when its whole aim was to remedy a hurtful condition in foreign territory.⁴⁵ The answer was yes, even though the Court was then hostile to delegations in the domestic sphere.⁴⁶ The holding is therefore a narrow one about delegation: Congress may leave the President broader discretion in external affairs than it could leave in domestic regulation.

Justice Sutherland's opinion for the Court justified that result with a theory about where foreign affairs power comes from. Internal federal powers, he reasoned, were carved out of the mass of powers the states already held, and the enumeration of powers marks what was carved out. The states never possessed international powers, so those powers could not have been carved from them, and they passed to the national government from the Crown as attributes of nationality. In his words, the investment of the federal government with the powers of external sovereignty did not depend on the affirmative grants of the Constitution.⁴⁷ On this view the powers to make treaties, wage war, and maintain diplomatic relations would have belonged to the national government even if the Constitution had never mentioned them.

The opinion then added a functional argument that explains why the President in particular benefits from the theory. Negotiation with other governments requires one voice, and the President alone speaks or listens as the nation's representative, so that the Senate cannot intrude into negotiation and Congress is powerless to invade it.⁴⁸ The President also has the better opportunity to learn conditions abroad, through confidential sources and diplomatic and consular agents, and premature disclosure of what they gather may be harmful.⁴⁹ Legislation made effective through negotiation therefore often has to leave the President a degree of discretion that would be unacceptable in a purely domestic statute, which is the link between this reasoning and the tolerant treatment of the delegation. Later Court opinions have quoted the passage on confidential information when discussing the executive's advantages in foreign matters.⁵⁰ The most famous phrase came in the same discussion, describing a "very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations" that does not require an act of Congress as its basis.⁵¹

That sole-organ language is broader than anything the case required, and the limits on it matter more than the phrase itself. The embargo rested on a congressional resolution, so the President was acting in harmony with Congress rather than against it. Sutherland himself added that the power must be exercised in subordination to the applicable provisions of the Constitution.⁵² Justice Jackson later made the same point in his concurrence in the Steel Seizure Case, observing that Curtiss-Wright concerned presidential action in harmony with an act of Congress and not action contrary to Congress, a reading that sharply limits any theory of unrestrained executive power in foreign affairs.⁵³ The Court adopted that restraint in Zivotofsky v. Kerry, where the Secretary of State relied on the sole-organ description to claim broad, undefined foreign affairs power. The Court said it "declines to acknowledge that unbounded power," because the description was unnecessary to a holding about congressionally authorized action and the case did not hold the President free from Congress's lawmaking power in this field.⁵⁴

The sovereignty theory also draws two objections from the text and the history. The textual objection is that if national sovereignty automatically supplied every external power, the Constitution would have had no reason to enumerate treaty, war, appointment, and commerce powers, and the detailed allocation rebuts the idea that the President controls foreign affairs just by being the chief executive. The historical objection is that the account of the founding on which the opinion rests has been called inaccurate and is not grounded in the framers' intent, which was that the President, like every branch, hold limited powers.⁵⁵

The same line explains the recognition ruling in the preceding section. The President prevailed against a statute in Zivotofsky because the Court found the recognition power exclusive, an inference drawn from the Reception Clause and the treaty and ambassador powers, and not because of the sole-organ phrase. When the President contradicts Congress and no exclusive power has been shown, a different method is needed to decide who wins. The next section supplies it.

Jackson's Three Categories

The preceding sections end with an open question. When the President acts abroad, no exclusive power has been shown, and Congress has taken some position on the subject, which branch prevails? Courts answer with a framework from Justice Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, which the Supreme Court has since endorsed, including in Zivotofsky v. Kerry.⁵⁷ The need for a framework is easy to see. Opening its opinion in Dames & Moore v. Regan, the Court quoted Jackson's warning that a judge may be surprised at the "poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves."⁵⁸ Jackson's three categories respond to that poverty by turning a search for a missing constitutional clause into a question about Congress: how has the legislature positioned itself toward what the President did? The discussions of claims settlement and treaty implementation later in this chapter both run on this framework.

The framework sorts presidential action into three positions, and the Court has restated them in nearly Jackson's own words.⁵⁹ In order from the strongest presidential position to the weakest, they are these:

1. When the President acts under an express or implied authorization from Congress, the authority is at its maximum, because it includes everything the President holds independently plus everything Congress can delegate.
2. When Congress has neither granted nor denied authority, the President acts in a zone of twilight where the President and Congress may have concurrent authority, and congressional inertia, indifference, or quiescence may invite the exercise of executive power.
3. When the President takes measures incompatible with the expressed or implied will of Congress, the President can rely only on independent constitutional powers minus any constitutional powers of Congress over the matter.

All three categories ask one thing: how much of the constitutional power over this subject does the President actually hold? In the first category the answer is the most any President can have. The act carries the President's own authority and whatever Congress can hand over, so a challenger would have to show that the Constitution bars the national government as a whole from acting at all, and a claim of that size rarely succeeds. In the third category the arithmetic reverses. Congress's powers over the subject are subtracted from the President's, and what remains controls, so the President wins only if the Constitution gives the subject to the executive exclusively. The second category sits between the two, and the result there turns on the strength of the President's own power and on whether Congress's silence amounts to an invitation. Together the categories keep lawmaking with the branch designed for it while leaving the executive room to act where Congress has not spoken.

The arms embargo in Curtiss-Wright, discussed above, is a clean first-category case. Congress authorized the embargo by joint resolution and the President issued the proclamation, so the executive stood on its own power plus Congress's grant. That posture explains why the sole-organ language never had to carry weight against a statute.

The twilight zone is where the hardest questions arise, and emergencies are the hardest of them. Youngstown arguably left open whether the President may exercise lawmaking power on an interim basis in a national emergency that Congress has not had an opportunity to address, and a number of Justices suggested that President Truman might have been justified in acting temporarily had Congress not already spoken.⁶⁰ Congressional quiescence is the pivot in this category, because a legislature that watches a practice continue for decades without objecting gives the President a reason to treat the practice as accepted. Acceptance can lift an action out of the twilight zone and toward the first category, which is how Dames & Moore came out. In that case the President's orders nullified attachments and liens on Iranian assets in the United States, directed that the assets be transferred to Iran, and suspended claims against Iran that could be presented to an international claims tribunal, all to carry out an executive agreement with Iran.⁶¹ Justice Rehnquist's opinion treated Congress as having given legislative approval to that agreement, and in doing so appeared to follow Jackson's functional approach more closely than Justice Black's opinion in Youngstown had.⁶² The Court rested that approval on Congress's long and open acceptance of presidential claims settlement, and it did not treat acquiescence alone as conclusive. Critics of the decision argue that the Court should have demanded more specific legislative approval for such far-reaching measures, because reading silence as consent sits uneasily with Youngstown.⁶³

Acquiescence can also fail to move a case, and the two decisions that show it are the best guide to the third category. In Youngstown, Congress had earlier considered and rejected the option of letting the President seize industries to avoid major shutdowns, so the President could not describe the seizure as a stopgap until Congress acted. Jackson placed the action at its "lowest ebb" because it was "incompatible with the expressed or implied will of Congress."⁶⁴ In Medellin v. Texas, the International Court of Justice issued a judgment under the Vienna Convention concerning 51 Mexican nationals convicted and sentenced under state law, and the President issued a memorandum on February 28, 2005, determining that the United States would discharge its obligation by having state courts give effect to the decision.⁶⁵ The Court acknowledged the President's leading role in foreign affairs but insisted that executive authority must stem from an act of Congress or from the Constitution, and it applied Jackson's framework to the memorandum.⁶⁶ The argument that the treaties themselves authorized the President to implement the judgment failed, because a non-self-executing treaty is ratified with the understanding that it will not have domestic effect of its own force, and that understanding rules out finding that Congress implicitly authorized the President to produce the effect alone.⁶⁷ The Court also rejected the claim of an independent presidential power to settle claims that would cover the memorandum.⁶⁸ With no authorization to rely on and the treaty's non-self-executing character cutting against the President, the order ran against the implied will of Congress and fell into the third category.

Placed side by side, the two decisions show how the same motive can produce different categories. In Dames & Moore the President was carrying out an international commitment, and so was the President in Medellin. What differed was Congress's position. Long acceptance of claims settlement pointed toward approval in the first case, while the ratification understanding in the second pointed toward a refusal to let the President give the treaty domestic force.

Placement in the third category leaves the President one route to victory, which is to show that the Constitution commits the subject to the executive exclusively. That requirement explains why the recognition holding in the previous section came out for the President even against a contrary statute, and why the sole-organ language in Curtiss-Wright could not carry the same weight, since that case arose in the first category.

Because the category depends on what Congress has done, the placement is best run by looking for congressional action before weighing the President's claim.