Executive Branch Authority Over U.S. Foreign Affairs

Introduction: Constitutional Foundations of Executive Power

Executive power is vested in the President of the United States by Article II of the Constitution. Article II, Section 1, Clause 1 — known as 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 granted to the President above and beyond the powers enumerated in the Constitution. The power and authority of the President affects not only the President himself and the two chambers of 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 today, due to the "War on Terror," issues of executive power are again prominent topics in American law and politics. To some extent, jurisprudence regarding the President's executive powers finds a foundation in the concurring opinion of Supreme Court Justice Robert Jackson in the Steel Seizure Case. In that opinion, Justice Jackson stated that presidential powers fluctuate and are not fixed relative to whether they concur or conflict with the powers of Congress. According to Kozinski, Justice Jackson articulated a sliding scale illustrating the relative exercise of congressional versus 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 Congress and the President, the actual law in these cases is not well settled. There are constitutional scholars who contend that proper interpretation of the Constitution gives the "preeminent role" to Congress with respect to foreign policy — an interpretation taken to include not only the authority to declare war but also to "decide on lesser acts of military hostility." From the perspective of those who assign preeminent power to Congress, the role of the President is seen as one of executing foreign policy rather than formulating it. For these scholars, the preeminence of Congress is self-evident from the Constitution, although the details and implications of this perspective may vary. Those who grant Congress a constitutionally grounded preeminent role in foreign affairs further contend that over the last sixty years there has been a clear trend toward presidential domination of U.S. foreign affairs — a trend that, in their view, "represents a dramatic departure from the basic scheme of the Constitution" (Powell).

As this statement makes clear, the opinions of constitutional scholars are not always consistent with those of the presidential administration. Over the last fifty years, a growing view has emerged that the executive branch holds primary authority with respect to national security and foreign affairs. The executive branch advances its own interpretation of the Constitution and its limits on the allocation of power. Those who favor presidential primacy argue that the Constitution grants the President independent authority to act with respect to U.S. foreign policy. Notably, 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 a core responsibility of the executive branch has been explicitly affirmed by the Court. For example, opinions have stated that military and foreign affairs are areas for which the President has "unique responsibility" (Powell).

The original objective of distributing foreign policy authority between the executive branch and Congress was to achieve consistency, coherence, and continuity. With dual responsibility, both governmental branches can shape aspects of foreign policy, ensure a fully deliberate process, and implement a beneficial foreign policy. Because the United States operates in a complex and often difficult global arena, forming an effective foreign policy is not simple; having the two branches work together should engender strength and clarity of approach. The relationship between Congress and the President is often described as one of "checks and balances" — a feature of the U.S. political system designed to prevent any one governmental branch from accumulating too much power. Division of foreign policy authority between the two branches should therefore produce cooperation, coordination, and consultation between the President and Congress (Khan and Sabir).

In the field of foreign policy, it is the role of the President to lead. As Chief Executive, Chief of Foreign Policy, Chief Treaty Negotiator, Commander-in-Chief, Chief Diplomat, and Chief Appointing Authority, the President — by constitutional design — dominates and controls U.S. foreign policy. At the same time, Congress retains an independent and powerful role through its ability to approve arms sales, manage and regulate trade, ratify treaties, confirm or deny presidential appointments, declare war, and control the power of the purse. The President, in turn, retains the right of veto to check congressional action (Khan and Sabir).

Ultimately, the success or failure of U.S. foreign policy depends on the interaction and mutual cooperation of Congress and the President, particularly with respect to the formulation of a unified foreign policy. When the two branches disagree, lack of communication and partisan attitudes can produce direct confrontation, making it far more difficult to address foreign policy issues. The concept of bipartisanship — that no single political party should dominate foreign policy in a two-party system — is central to this arrangement. The end goals are to reach compromises that transcend partisan politics and serve the best interests of the United States and the other nations involved. Through cooperative action, trust can develop between Congress and the President, benefiting the crafting of foreign policy as well as important issues of commerce, trade, and internal security. Discordance between the two branches is not beneficial to either foreign or domestic policy, and the necessity of working together has at times caused delays on significant regional and global issues (Khan and Sabir).

Making Foreign Appointments

As outlined in Article II, Section 2 of the U.S. Constitution, the President is empowered to nominate and appoint ambassadors, Supreme Court justices, 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 guided less by formalized and strict rules than by informal customs that vary with the shifting balance of power between the Senate and the President (Gerhardt, 2000:10).

The nomination, appointment, and confirmation process is challenging given the differing roles of the President and the Senate. Nominees have at times become focal points of confrontation and contention between the two branches. McCarty and Razaghian observed that the Senate's confirmation process is "entirely consistent with all its other norms, traditions, and rules," yet the process frequently involves 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, of whom 843 were eventually confirmed by the Senate. As Binder noted, "most presidential nominees emerge from the Senate confirmation process and are eventually confirmed" (Binder, 2001:37). Although a majority of any given President's nominees are ultimately confirmed, there are cases in which the Senate rejects a nominee, prompting the President to make a different selection. In further instances of wholesale Senate disagreement with a nominee, a filibuster may be employed to prevent the nomination from being brought to a vote — a procedural technique used to halt contentious matters and encourage further discussion (Khan and Sabir).

The Use of Force and the Declaration of War

Article II, Section 2 of the Constitution defines the President of the United States as "Commander-in-Chief of the Army and Navy of the United States." At the same time, the power to declare war is vested in Congress by Article I, Section 8, which limits the President's authority in foreign policy. In general, Congress has supported the President's role in decisions concerning global military deployment. Several instances of American military deployment and intervention have been solely at the discretion of the President, including: Panama in 1989, Grenada in 1983, Vietnam from 1965 to 1973, the Dominican Republic from 1965 to 1966, Lebanon in 1958, and Korea from 1950 to 1953. However, following the Watergate Scandal and the Vietnam War, Congress became less willing to support presidential foreign policy initiatives (Yankelovich, 1978:93).

In order to guarantee congressional participation in any use of force, the War Powers Resolution requires consultation between Congress and the President. Nevertheless, both President Ford and President Carter authorized military actions without such consultation — Ford in the 1975 Mayaguez rescue and Carter in the 1980 attempted Iran hostage rescue. Carter asserted that secrecy was necessary, thus precluding congressional consultation (Kegley and Wittkope, 1991:434–35). There was considerable controversy at the time over presidential decisions regarding Lebanon, and President Carter's policy for the Persian Gulf was severely criticized by Congress. In May 1987, thirty-seven U.S. sailors were killed by an Exocet missile attack. At the time, the United States maintained an extensive naval presence in the Persian Gulf, tasked in part with protecting Kuwaiti oil tankers during the lengthy Iraq-Iran conflict. As hostilities continued, Congress declared the area to be under military invasion and introduced HR-2342 to delay deployment (Grabb and Holt, 1992:146–52; Khan and Sabir).

Conclusion: The Shifting Balance of Power

Whether Congress or the President has been dominant over the last two centuries has varied considerably. There have been periods when Congress exercised extensive power, and others when presidential leadership was more constrained. At all times, the President retains an influential political status. In the early history of the Republic, the presidential veto was rarely utilized, so foreign policy was generally shared between Congress and the President. Presidential power over Congress was weakened during Andrew Johnson's tenure and his impeachment in 1868. More recently, we have witnessed the rise of presidential power in the twentieth and twenty-first centuries, under Presidents from Franklin Roosevelt through George W. Bush. While the power struggle between Congress and the President remains unequal, the prestige of the Presidency carries its own authority and ultimately gives the President a "bully pulpit" capable of outweighing 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 practice the reverse has increasingly been true. Although Congress has begun to address its functional weaknesses, significant issues remain. Congressional power is diffuse, and Congress's capacity to discharge its foreign policy duties is not directed in a single, unified manner. The structural incentives of the institution encourage a more localized and provincial focus rather than a broad national one. At present, it appears more likely that congressional powers in foreign affairs will continue to be absorbed by the President than the reverse (Khan and Sabir).

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