Executive Power in Foreign Affairs

By Kozinski, Alex | Harvard Journal of Law & Public Policy, Fall 2006 | Go to article overview

Executive Power in Foreign Affairs


Kozinski, Alex, Harvard Journal of Law & Public Policy


Article II of the U.S. Constitution begins by declaring that "the executive Power shall be vested in a President of the United States of America." (1) This so-called Executive Vesting Clause has been the subject of intense constitutional discussion since the Constitution was ratified. For instance, in 1793 Alexander Hamilton and James Madison debated whether this clause grants residual authority to the President beyond the enumerated powers listed in the Constitution. (2) The answer to this question is significant not only because it affects the power and the authority of the President, but also, as a necessary implication, because it impacts the rights and freedoms of U.S. citizens here and abroad.

Some of the most notable Supreme Court cases concerning the contours of executive power have arisen in the context of war (3) and foreign affairs. (4) Thus, it is not surprising that now, during the War on Terror, the subject of executive power is once again at the forefront of both American law and politics.

Modern executive power jurisprudence finds much of its basis in Justice Robert Jackson's concurring opinion in the Steel Seizure Case. In that case, Justice Jackson declared, "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." (5) He then went on to fashion a sliding scale for the exercise of executive power vis-a-vis congressional power.

According to Justice Jackson, the President's power is at its "maximum" when Congress actually confers power on the President to act. (6) The President's power occupies a middle position, a "zone of twilight," when the President acts without authorization or opposition from Congress. (7) Finally, presidential power is at its "lowest ebb" when the President acts contrary to laws passed by Congress. (8) It is both important and interesting to note that Justice Jackson did not say that the President may not act contrary to legislation; he simply said the power to act was at its "lowest ebb" and that under these circumstances the President must "rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." (9) Thus, even Justice Jackson's framework allows for the possibility that the President may have powers that in fact supersede constraints imposed by the other branches of government.

Of course, it is an awesome thing for one man to hold such power. Therefore we have seen--consistent with our American values--a gradual cutting back of executive power. It becomes less and less with every administration, and now it is practically gone. But there's a little bit left, and this panel, composed of Professor Martin Flaherty and Professor Michael Ramsey, discusses that remaining portion.

This is not the first time that Professor Flaherty and Professor Ramsey have thrown academic jabs, uppercuts, and hooks at one another over this topic. Round One of Flaherty v. Ramsey took place over several hundred pages in the Yale Law Journal and the Michigan Law Review. …

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