Foreign Affairs and the United States Constitution

by Henkin, Louis

• ISBN13: 9780198260998
• ISBN10: 0198260997
• Edition: 2nd
• Format: Hardcover
• Copyright: 1997-01-02
• Publisher: Oxford University Press

Table of Contents

Table of Abbreviations	xvii	(2)
Table of Cases	xix	(30)
Table of Statutes	xlix	(16)
Table of Treaties, International Instruments	lxv
Introduction	1	(10)
I. FOREIGN AFFAIRS AS NATIONAL AFFAIRS	11	(12)
Chapter I. The Constitutional Authority of the Federal Government	13	(10)
II. THE DISTRIBUTION OF CONSTITUTIONAL POWER	23	(148)
Chapter II. The President	31	(32)
The Sources of Presidential Power	34	(1)
The President's Foreign Affairs Power	35	(10)
Enumerated and Implied Powers	36	(9)
The treaty power	36	(1)
Appointing and receiving ambassadors	37	(2)
`The Executive Power'	39	(2)
`Sole organ'	41	(4)
Related Presidential Powers: The Commander in Chief	45	(5)
Presidential War Powers	46	(4)
General Presidential Powers	50	(3)
`He shall take Care that the Laws be faithfully executed'	50	(3)
National Security and Emergency Power	53	(1)
Presidential `Law-making'	54	(7)
Limitations on Presidential Power	61	(1)
The Political Influence of the President	62	(1)
Chapter III. The Congress	63	(20)
Congress as Law-Maker	63	(12)
Enumerated Foreign Affairs Powers	64	(6)
The Foreign Commerce Power	65	(2)
The War Power as legislative power	67	(1)
`To define and punish offences'	68	(2)
Powers Deriving from National Sovereignty	70	(2)
The Foreign Affairs Power	70	(2)
General Congressional Powers	72	(3)
`To lay...Taxes...to provide...for the general Welfare'	72	(1)
`Laws which shall be necessary and proper'	73	(2)
Non-legislative Powers of Congress	75	(5)
To Declare War	75	(1)
To Make Other Foreign Policy	76	(4)
Limitations on Congressional Power	80	(1)
The Political Influence of Congress	81	(2)
Chapter IV. Separation of Powers: Competition, Conflict, and Cooperation	83	(48)
Exclusive and Concurrent Authority	86	(10)
Exclusive Powers of the President	88	(1)
Exclusive Powers of Congress	89	(3)
Concurrent Powers	92	(4)
Competition for Power	96	(16)
War Powers, Exclusive and Concurrent	97	(14)
What is `war'?	98	(1)
Military deployments and hostilities `short of war'	99	(2)
Did Congress authorize war?--Vietnam	101	(2)
Exclusive and concurrent powers during war	103	(2)
The War Powers Resolution	105	(6)
`Cold war'	111	(1)
Regulating Intelligence Activities	111	(1)
Issues in Cooperation	112	(6)
The Obligation of Congress to Cooperate: Implementing Legislation and Appropriations	112	(3)
The `power of the purse'	113	(2)
The President's Obligation to Cooperate: Executive Privilege	115	(2)
The President's Obligation to Execute the Laws	117	(1)
Interference between Branches	118	(5)
`Unconstitutional conditions'	119	(2)
Congressional Control of the Foreign Affairs Establishment	121	(2)
Issues in Delegation	123	(5)
`Excessive' Delegation	124	(1)
Controlling Delegated Authority: The `Legislative Veto'	125	(3)
The Independent Agencies	128	(3)
Chapter V. The Courts in Foreign Affairs	131	(18)
The Judicial Role in Foreign Affairs	133	(1)
Judicial Review	134	(2)
Monitoring Federalism: The `Dormant' Commerce Clause	135	(1)
Monitoring Separation of Powers in Foreign Affairs	135	(1)
Monitoring Respect for Individual Rights	136	(1)
Judicial Law-making	136	(5)
The Act of State Doctrine and the `Federalization' of International Law	137	(3)
Supervisory Power of the Federal Courts	140	(1)
Limitations on Judicial Power	141	(8)
Constitutional Limitations: Case or Controversy	142	(1)
`Political Questions'	143	(6)
Chapter VI. The Abiding Significance of Federalism: the States and Foreign Affairs	149	(22)
State Exclusion from Foreign Affairs	151	(5)
Exclusion by Federal Supremacy	156	(9)
Federal Preemption	157	(1)
`Commerce with Foreign Nations'	158	(4)
State `Intrusion' into Foreign Affairs	162	(3)
States Rights Limitations on National Policy	165	(2)
Political Influence of the States	167	(4)
III. COOPERATION WITH OTHER NATIONS UNDER THE CONSTITUTION	171	(104)
Chapter VII. Treaties, the Treaty Power, and Executive Agreements	175	(56)
Treaties	175	(40)
The Treaty-making Process	176	(8)
The President and the Senate	177	(3)
Reservations and Other Conditions	180	(4)
What is a Treaty?	184	(1)
Limitations on Treaties	185	(13)
Limitations Implied in Federalism	189	(5)
Limitations Deriving from the Separation of Powers	194	(2)
Domestic Matters, Not of `International Concern'	196	(2)
Treaties as Law of the Land	198	(17)
Self-executing and Non-self-executing Treaties	198	(6)
Congressional Implementation	204	(2)
Interpretation	206	(1)
Enforcement of Treaty Obligations	206	(3)
Treaties and Acts of Congress	209	(2)
Breach and Termination of Treaties	211	(4)
Executive Agreements	215	(16)
Congressional-Executive Agreements	215	(4)
Sole Executive Agreements	219	(6)
Limitations on Executive Agreements	225	(1)
Executive Agreements as Law of the Land	226	(5)
Chapter VIII. International Law and International Organizations: Constitutional Issues	231	(44)
International Law in the Constitutional Framework	232	(15)
International Law as Law for the United States	232	(4)
International law and the political branches	234	(2)
International Law as Law of the United States	236	(1)
International law as supreme federal law	237	(2)
International law in the courts	239	(8)
International Organizations in the U.S. Constitutional Framework	247	(28)
U.S. Adherence to International Organizations	249	(1)
U.S. Participation in International Organizations	249	(1)
The Executive as U.S. representative	249	(1)
The United Nations	250	(9)
President, Congress and the United Nations	255	(4)
NATO	259	(1)
Regulation of U.S. Activities by International Agencies	260	(6)
International Judicial Tribunals	266	(5)
International Criminal Courts	268	(3)
Dispute Resolution Pursuant to International Agreements	271	(4)
IV. CONSTITUTIONAL LIMITATIONS: INDIVIDUAL RIGHTS AND FOREIGN AFFAIRS	275	(36)
Chapter IX. Individual Rights and Foreign Affairs	283	(28)
Applicability of Constitutional Safeguards	283	(2)
The Bill of Rights	285	(18)
Freedom of Speech and Press	286	(2)
Unreasonable Searches and Seizures	288	(1)
Safeguards in the Criminal Process	289	(1)
Due Process of Law	289	(3)
Equal Protection of the Laws	292	(5)
Aliens and citizens	293	(4)
`Taking' and `Just Compensation'	297	(6)
Immigration, Exclusion, Deportation	303	(2)
The Constitution Abroad	305	(4)
The States and Individual Rights	309	(2)
CONCLUSION	311	(14)
Chapter X. An Eighteenth Century Constitution for the Twenty-First Century	313	(12)
Endnotes	325	(235)
Appendix: The Constitution of the United States	555	(18)
Index	573