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Foreign Affairs Powers

Americans have become accustomed to a steady drumbeat of presidential assertions of sweeping powers in the realm of foreign affairs and national security. They may be surprised to learn, however, that these claims are inconsistent with the constitutional blueprint for foreign relations, which vests the lion’s share of authority in Congress, not the president.

The arrangement for foreign affairs reflects the Constitutional Convention’s preference for collective decision-making and its fear of unilateral executive power. As a result, Congress is assigned senior status in a partnership with the president for the formulation, management and conduct of American foreign policy. But this design has been overwhelmed in the years since World War II by expansive claims of presidential power that have laid the basis for a presidential monopoly over foreign affairs and advanced a conception of executive authority so broad that it has produced a wide gulf between constitutional principle and governmental practice.

The framers’ preference for collective, rather than individual, decision-making runs throughout the constitutional provisions that govern foreign policy. Check out the text of the Constitution. In addition to its exclusive jurisdiction over legislation and appropriation, Congress derives broad authority from Article I, Section 8 of the Constitution to provide for the common defense, regulate commerce with foreign nations, make rules governing immigration and naturalization, and define and punish pirates and felonies committed on the high seas and offenses against the law of nations.

Congress, alone, has the power to declare war and to authorize lesser military activities. It develops rules regarding captures on land and water, possesses the sole authority to raise, support and maintain an army and navy, and to make all rules for the governance of our military, and to call forth the militia to execute the laws of the nation, and suppress insurrections and repel invasions.

Article II, Section 2 indicates that the president shares some powers with the Senate. The two branches, together, make treaties and appoint ambassadors. These shared powers reflect the framers commitment to apply to foreign relations the principle of checks and balances, just as it applies to the creation of domestic policy. The Constitutional Convention never entertained the idea of vesting these two powers in the hands of the president, alone, because they valued in foreign affairs, as in domestic affairs, the virtues and values of shared decision- making.

Which foreign affairs powers are assigned by the Constitution to the president? Readers may be surprised to learn that the president is assigned only two exclusive roles in this realm. The president is Commander in Chief of the army and navy, and of the militia, “when called into service.” As James Madison and Alexander made clear in the convention, Congress does the calling. If the United States is attacked by a foreign adversary, then the president has the duty to repel the invasion, leaving to Congress the decision to determine what steps might be subsequently taken, as in suing for peace or declaring war. The Commander in Chief Clause does not confer upon the president authority to decide to initiate war or lesser military hostilities against another country, for that decision is part and parcel of the authority to declare war, granted to Congress by Article I, Section 8, of the Constitution.

The president’s other constitutional role is to receive ambassadors and public ministers from foreign nations. The framers considered this a mere ceremonial act, one performed in other countries by a ceremonial official for the purpose of carrying out meet-and-greet formalities. The framers attached to this role no independent policy authority, thus confining the president to the performance of an administrative, clerk-like function.

The president’ constitutional powers in the realm of foreign affairs are few and modest, and they pale in comparison to those vested in Congress. Why did the Constitutional Convention create such an arrangement? The clear answer is that the framers were committed to the practice of discussion and debate in the formulation of American foreign policy, believing that this process would yield superior policies, rather than those that might emerge from the brain of the president, alone. The founders rejected the doctrine of human infallibility and did not want to leave the nation’s foreign relations to the relative judgment, temperament, instincts and expertise of a single person. In the end, the framers placed their trust in the halls of Congress. Whether or not that was wise, is a matter for readers to contemplate.

No power in the realm of foreign relations and national security is more awesome that that of deciding to take the nation to war, given that the very fate of the nation--its blood and treasure—is in jeopardy when the dogs of war are unleashed. The framers vested that power solely and exclusively to Congress, but in the modern era, presidents of both parties have usurped that critical authority, thus turning the Constitution upside down. We consider that constitutional crisis next week.


David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.

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