The President's Authority over Foreign Affairs

by Powell, H. Jefferson

• ISBN13: 9780890894668
• ISBN10: 0890894663
• Format: Hardcover
• Copyright: 2002-01-01
• Publisher: Carolina Academic Press

Summary

Debate over who has the authority to make foreign policy for the United States has been a constant feature of our political and constitutional history. In the modern era, the debate has come to be both shrill and stale: the proponents of presidential autonomy and the advocates of congressional supremacy start from mutually incompatible premises and come to predictable, and antagonistic, conclusions. The President¿s Authority Over Foreign Affairs argues that the best interpretation of our Constitution¿s distribution of foreign affairs authority resolves this irresolvable stand-off. Powell presents a traditional legal argument, giving careful weight to original understandings, early practice and considerations of institutional structure, and concludes that the Constitution vests the president with the clear authority to formulate and implement foreign policy. At the same time, the Constitution vests Congress with powers that enable it to exercise a near-absolute veto ¿ not on the president¿s foreign policy choices, but on his or her ability to carry those choices out. The resulting system of interlocking constitutional powers is faithful to the Constitution¿s text and to the purposes that are embodied in it. In making this argument, a variety of hotly contested issues are addressed, and Powell shows how constitutional interpretation enables us to reach satisfactory answers.

Author Biography

H. Jefferson Powell is a professor of law at Duke University. He has served in the United States Department of Justice and while there worked extensively on issues relating to foreign affairs

Table of Contents

Foreword	p. ix
Introduction	p. xiii
Abbreviations and Acknowledgments	p. xvii
Professor Corwin's question, and his inconclusive conclusion	p. 3
Two dead-end answers to Professor Corwin's question	p. 8
The consequences of the legalist premise	p. 19
The form of the legal argument	p. 26
Some hints from Publius	p. 30
President Washington's answer to Professor Corwin's question	p. 34
Establishing the diplomatic corps	p. 36
Hamilton v. Madison on the president's declaration of neutrality	p. 47
The Little Sarah and the issue of military action	p. 51
The confidentiality of Gouverneur Morris's dispatches	p. 61
The confidentiality of John Jay's instructions	p. 66
John Adams, John Marshall and the "sole organ"	p. 77
Thomas Jefferson and the Republican presidency	p. 89
A preliminary answer of our own	p. 95
Efficacy and foreign policy in the 21st century	p. 98
Accounting for Congress	p. 107
Accounting for war	p. 113
Accounting for the Supreme Court	p. 126
Accounting for the Senate	p. 132
The answer restated, and some objections considered	p. 139
The desirability of politics	p. 147
A lawyer's political conclusion	p. 150
A taxonomy of the president's foreign-affairs powers
The recognition power	p. 152
The negotiation power	p. 153
The power to maintain the confidentiality of diplomatic information	p. 153
The responsibility to protect national security	p. 154
Select Bibliography	p. 156
Index	p. 162
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