The Textual Basis of the President's Foreign Affairs Power

Article excerpt

What I want to present here is, if not an alternative to Justice Robert Jackson's famous Youngstown framework, (1) at least a complement to that framework for approaching the President's foreign affairs power. My central proposition is that the eighteenth-century meaning of "executive" power included foreign affairs powers as well as the more familiar power to execute the law. Thus, Article II, Section 1 of the U.S. Constitution--which states that "the executive Power shall be vested in a President"--grants, in eighteenth-century terms, the power to execute the law plus foreign affairs powers. This is sometimes called Hamilton's vision of executive power, but its first reasoned exposition after the Constitution's ratification was actually made by Thomas Jefferson, and that is why I have called it the "Jeffersonian" executive power in prior articles. (2)

Jefferson wrote: "The Constitution ... has declared that 'the Executive powers shall be vested in the President.' ... The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate." (3) Of course, Jefferson was not a Framer and he had at times some unusual constitutional ideas. So, why should we rely on him? I do not rely on him exclusively. I only say that if we are interested in what the Constitution meant to reasonable people at the time it was written, it is useful to explore what Jefferson suggested. Therefore, I will explain where I think Jefferson got his idea of executive power and then show why one can think the idea represents the Constitution's original meaning.

There are four basic steps in this argument. First, the key writers of the eighteenth century on whom the Framers relied, particularly Montesquieu and Blackstone, defined "executive" power to include foreign affairs powers. For example, Montesquieu wrote: "In every government, there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law." (4) In listing the "executive" powers "dependent on the law of nations," he included things like war and peace, ambassadors, defense, and national security. (5) Modern experts on Montesquieu's philosophy conclude that Montesquieu "use[s] the term 'executive power' ... to cover the function of the magistrates to make peace or war, send or receive embassies, establish the public security, and provide against invasions," and that "Montesquieu, like most writers of his time, was inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs." (6) According to constitutional historian Francis Wormuth, "[t]he famous sixth chapter of Book XI of [Montesquieu's] Spirit of the Laws ... recognizes ... the executive power in foreign relations...." (7)

Similarly, Blackstone described the "executive" powers of the English monarch as encompassing the principal foreign affairs authorities, including ambassadors, treaties, war, and letters of marque and reprisal. These "foreign concerns," Blackstone explained, are included within the powers "the exertion whereof consists the executive part of government." (8)

This in itself does not prove how the Framers chose to organize their new government. It does suggest, though, that the vocabulary that they started with defined "executive" power to include foreign affairs powers. Montesquieu and Blackstone were by far the most widely read and influential political writers in America during the founding era, enjoying wide circulation and citation. (9) Madison described Blackstone's Commentaries as "a book which is in every man's hand" and Montesquieu as "the oracle who is always consulted and cited" on separation of powers. (10) Their use of words, especially words as central to the idea of separation of powers as "executive power," was surely well-known to educated Americans. …