I have written several articles on postings related to politics. A list of links has been provided at the bottom of this article for your convenience. This article will, however, address different aspects of these political events.
This article is being written in an effort to determine how much influence the Supreme Court has regarding the President and our foreign policy, for example, levying tariffs. I believe that the executive branch has allowed the other two houses too much power, especially the courts.
The Supreme Court (SC) found it had authority to make limited constitutional determinations in the foreign policy context in Boumediene v. Bush. There, the Court considered whether it could entertain habeas petitions from prisoners designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. The United States argued that, because Guantanamo Bay was not a part of the United States, the United States had no sovereignty over it, and as such, the writ of habeas could not extend to prisoners held there. The operative word is limited. The SC is over-stepping it’s charter with the Tariffs.
Has any president used his executive powers to levy tariffs?
Yes, several U.S. Presidents have used executive power, often under authority delegated by Congress through laws like the Trade Act of 1974, to levy tariffs, with prominent recent examples being Donald Trump imposing significant tariffs on Chinese goods and other partners, and previously, Richard Nixon using emergency powers for import surcharges, though this power is a subject of ongoing debate regarding constitutional limits.
Examples of Presidential Tariff Actions:
- Donald Trump (2018-2020s): Imposed substantial tariffs on steel, aluminum, and vast amounts of Chinese goods, citing national security and unfair trade practices under authorities like Section 301 of the Trade Act of 1974 and IEEPA.
- Richard Nixon (1971): Implemented a 10% import surcharge using emergency powers under the Trading with the Enemy Act to address balance-of-payments issues, a move later upheld in part by courts.
- Jimmy Carter (1970s): Used proclamation authority to implement tariff reductions agreed upon in multilateral trade negotiations.
Legal Basis & Controversy:
- Congressional Delegation: Congress has, over time, delegated significant, though limited, authority to presidents to adjust tariffs through various acts (e.g., Trade Act of 1974, Trade Expansion Act).
- Constitutional Debate: The Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises,” leading to debate over how much power can be delegated to the executive branch, especially for broad, unilateral actions.
- Court Challenges: While some presidential tariff actions have been upheld (like Nixon’s surcharge and Section 301 tariffs on China), others, particularly Trump’s broad IEEPA-based tariffs, faced legal challenges questioning whether Congress clearly authorized such expansive power.
The intersection of foreign affairs, policy, and the Supreme Court in the United States is characterized by a complex relationship between the executive and legislative branches, with a notable emphasis on presidential authority. The U.S. Constitution designates the president as the primary actor in foreign relations, granting powers such as treaty negotiation and military command, while Congress retains limited authority, primarily in budgetary matters and treaty ratification. Historically, the Supreme Court has upheld the premise that the president possesses extensive powers in foreign affairs, supporting this through various rulings that have reinforced executive authority, such as in Missouri v. Holland and United States v. Curtiss-Wright Export Corp.
The Court often refrains from intervening in disputes between Congress and the president regarding foreign policy, labeling many of these issues as political questions beyond its jurisdiction. This reluctance can result in the strengthening of presidential power at the expense of legislative oversight. However, the Court has also delineated boundaries on presidential actions, as evidenced in Youngstown Sheet and Tube Co. v. Sawyer, which restricted the president’s ability to act against congressional intent in certain scenarios. Overall, the dynamic between foreign affairs, policy, and the Supreme Court reflects ongoing tensions and balances of power within the U.S. governmental framework.
Foreign affairs and policy and the Supreme Court
Description: Domain of public policy making whereby the national government orders its relations with other countries.
Significance: Although foreign affairs and policy are mainly the concern of the president and, to a lesser degree, Congress, the Supreme Court arbitrates in disputes between the political branches. Its original jurisdiction includes cases involving foreign ambassadors, ministers, and consuls, and its appellate jurisdiction embraces disputes involving foreign governments, citizens, and subjects as well as admiralty and maritime law.
The Supreme Court typically defers to the political branches of the government in the area of foreign policy making. The president is constitutionally the lead actor in dealing with foreign governments. Article II of the U.S. Constitution invests the president with the power to make treaties, to conduct foreign relations, and, as commander in chief, to make war. Congress is not without authority in these areas, but its powers are more limited. The Senate advises and consents to the ratification of treaties, while the president negotiates and ratifies them and determines which agreements will be submitted for formal Senate consideration. Only Congress may declare war, but it does so only after a presidential request, and it is the president who, as commander in chief, conducts the war. The president nominates ambassadors subject to congressional approval. In each case the president acts and Congress reacts in matters involving foreign affairs.
The one area in which Congress has primary power is in the authorization of budgets for the conduct of foreign policy, but rarely does it use this power to contradict a president’s foreign policy. Although the Constitution nowhere says definitively that the president is the primary constitutional authority in foreign affairs, and indeed both the president and Congress are invested with certain powers relative to the making and conduct of foreign policy, the deck is stacked in the president’s favor. Still, the interpretation and relationship of the checks and balances that exist in this area have proved an invitation throughout U.S. history to struggle and contest between the executive and legislative branches, and the Supreme Court has ruled in several important cases in ways that have supported the assertion of presidential authority.
The Supreme Court’s Role
Presidential authority in foreign policy increased in the twentieth century, as the United States rose to a position of prominence in international affairs. The Court, although not a direct player in the foreign policy arena, provided, in a series of rulings, an interpretation of the Constitution that supported the growth of presidential authority in this arena. In Missouri v. Holland (1920), the Court upheld the supremacy of treaties as the law of the land, giving the president and Congress the power to override state legislation where foreign policy interests and international obligations were involved. In the United States v. Curtiss-Wright Export Corp. (1936), which was advanced on appeal by an individual who had violated an arms embargo established by the president with the authorization of Congress concerning the Chaco War in South America, the Court upheld the legislative authorization and the presidential action as valid. Justice George Sutherland, writing for the majority, argued that the president had authority for his action not only from Congress but also from the “very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.” This case established a tone that the president, not Congress, conducts foreign relations, and that his or her powers are extensive.
Political Questions
The Court proved extremely reluctant to interfere with political disputes between Congress and the president over the conduct of foreign policy. In Goldwater v. Carter (1979), when Senator Barry Goldwater challenged President Jimmy Carter’s authority to terminate a treaty with Taiwan without the advice and consent of the Senate, the Court dismissed the case on the grounds that this was a nonjusticiable political question. Legal challenges by members of Congress to the authority of the president to conduct military actions overseas without congressional authorization were also rebuffed by the Court as nonjusticiable political questions. Here, too, the Court was reluctant to interfere. Court abstention from interference in cases where legislative and executive claims were at odds concerning foreign policy often worked to the advantage of the chief executive rather than the legislature.
However, although a president’s powers are considered to be broad in the foreign policy area, they are limited. The Court ruled in Youngstown Sheet and Tube Co. v. Sawyer (1952) that President Harry S Truman could not, under his powers as commander in chief during time of war, seize steel mills because he feared an impending strike by workers, especially in view of congressional opposition to such action. In this case, the Court displayed a reluctance to acknowledge as constitutional actions that, although related to foreign affairs, had no clear constitutional basis, had chiefly a domestic impact, and defied congressional wishes.
Article III, Section 2, Clause 1:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
One area where the political question doctrine has significant importance is in foreign affairs. In 1918, the Court wrote that “the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative’—the political’—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” However, despite that sweeping statement, as the Court recognized in Baker, not “every case or controversy which touches foreign relations lies beyond judicial cognizance;” rather, the Court analyzes each question on a case-by-case basis. For example, many pre-Baker cases concluded that the Judiciary was bound to defer to the political department on certain questions involving the validity of treaties or the recognition of foreign governments. The Baker Court characterized those cases as ones in which “resolution of such issues frequently turn on standards that defy judicial application, . . . involve the exercise of a discretion demonstrably committed to the executive or legislature . . . or uniquely demand single-voiced statement of the Government’s views.”
The first major post-Baker case to consider these principles was the 1973 case Gilligan v. Morgan. In Gilligan, the Supreme Court determined that the political question doctrine was one reason to bar a suit for broad equitable relief against the Governor of Ohio that alleged that the training of the Ohio National Guard was defective, leading to the violence that occurred at Kent State University three years earlier. The plaintiffs sought a “judicial evaluation of the appropriateness of the ‘training, weaponry and orders’ of the Ohio National Guard” and “continuing judicial surveillance” over the Guard to ensure compliance with any court-approved requirements. Although the case did not involve foreign policy, it raised related considerations. Recognizing that the case involved “the complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,” the Court gave two reasons why the political question doctrine applied. First, Article I, Section 8 of the Constitution gives the authority for “organizing, arming, and disciplining the Militia” to Congress. Second, in concert with the explicit textual commitment of military supervision to a branch outside the Judiciary, the Court recognized that the Judicial Branch was uniquely poorly suited to supervise this activity: “It is difficult to conceive of an area of governmental activity in which the courts have less competence.” Following what Baker called the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” the Court concluded that the case involved a political question.
The Court next considered whether it could hear a case involving a foreign policy question in 1979, in Goldwater v. Carter. Goldwater involved whether courts could entertain a lawsuit by Members of Congress over the President’s unilateral termination of a joint defense treaty with Taiwan. The plaintiff Members argued that this unilateral action deprived them of their constitutional role in the amendment of the supreme law of the land. The Court voted to dismiss the case without hearing oral argument. Although six Justices voted to dismiss for want of jurisdiction, no opinion received five votes. Justice William Rehnquist, writing for a plurality of four Justices, argued that the question presented was nonjusticiable “because it involved the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.” The plurality made three main points in support of the lack of justifiability. First, the question involved separation of powers between two branches, each with resources “available to protect and assert its interests.” Second, the question involved foreign affairs. Finally, the Constitution was silent on the question presented, providing no standards to evaluate the question of the role of Congress in the termination of treaties. The fifth vote was provided by Justice Lewis Powell, who agreed that the complaint should be dismissed, but for the lack of a ripe dispute, rather than on political question grounds. Justice Thurgood Marshall also concurred in the dismissal, but provided no reasoning to support his decision.
In other cases, however, the Supreme Court has explicitly rejected the application of the political question doctrine, notwithstanding a foreign affairs or foreign treaty dimension to the case. For example, in Japan Whaling Ass’n v. American Cetacean Society, the Court found that the political question doctrine did not prevent federal courts from adjudicating a question involving the interpretation of the International Convention for the Regulation of Whaling. Citing Baker, the Court noted that not every matter that touches foreign relations or foreign treaties was nonjusticiable; rather, the question was whether the case “revolved around policy choices and value determinations constitutionally committed for resolution” to the other branches. In Japan Whaling, the question presented was whether the Secretary of Commerce should have certified Japan as “diminishing the effectiveness” of the International Whaling Commission’s quotas under statutes that purportedly required the Secretary to do so. According to the Court, this question involved “applying no more than the traditional rules of statutory construction” in interpreting the Convention and the statutes at issue, and as such, did not present a political question.
The Court again found it had authority to make limited constitutional determinations in the foreign policy context in Boumediene v. Bush. There, the Court considered whether it could entertain habeas petitions from prisoners designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. The United States argued that, because Guantanamo Bay was not a part of the United States, the United States had no sovereignty over it, and as such, the writ of habeas could not extend to prisoners held there. The Court agreed that, because the question of who held sovereignty over the location was a political question, it would “not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay.” However, the Court went on to hold that nothing barred it from considering the “practical sovereignty” or “objective degree of control” the United States had over Guantanamo Bay. Previous cases designating sovereignty as a political question, the Court asserted, had referred to sovereignty in the “narrow, legal sense of the term,” rather than the “colloquial sense.” Further, as it was this colloquial sense that was relevant to the habeas writ, the Court reasoned that it had jurisdiction to evaluate the prisoners’ claims.
The Court’s embrace of a narrow conception of the political question doctrine continued in the most recent case to consider the political question limits to federal court jurisdiction in foreign affairs, Zivotofsky v. Clinton. In Zivotofsky, the Court concluded that the political question doctrine could not justify refusing to hear cases involving the constitutionality of a federal statute. There, the Court addressed a statute that provided that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. When the State Department refused to follow that law under a long-standing policy of not taking a position on the political status of Jerusalem, plaintiff Zivotofsky sued to enforce the statute. The Supreme Court concluded that the political question doctrine did not bar it from hearing the case; as the Court noted, the courts were “not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be.” Instead, the court was being asked to engage in the “familiar” exercise of determining what the statute meant and whether it was constitutional. The Court concluded that this exercise would require careful examination of the “textual, structural, and historical evidence” but that this was “what courts do,” and the difficulty of the problem was no justification for avoiding it.
Constitutional Basis for Executive Power
Article II of the U.S. Constitution defines executive power, outlining the President’s duties and responsibilities. While granting significant authority, it includes checks and balances to prevent absolute power. The document assigns the President roles in:
- Law enforcement
- Military leadership
- Foreign policy
The Constitution’s authors, aware of unchecked power’s dangers, designed a system to prevent any branch from dominating. Alexander Hamilton argued for a strong executive who could act decisively, but knew limits were crucial. The Constitution requires Senate approval for treaties and major appointments, providing legislative oversight. Impeachment is another tool Congress has to address Presidential overreach.
Judicial review, established in Marbury v. Madison, allows the Supreme Court to interpret the Constitution and nullify unconstitutional laws or actions, safeguarding against executive overreach.
The authors left some ambiguity, knowing flexibility was necessary. However, they trusted that checks and balances would manage conflicts as the nation grew. Thus, while the President holds significant power, judges, Congress, and constitutional provisions ensure it remains in check.
Historical Perspectives on Judicial Review
Judicial review allows courts, particularly the Supreme Court, to examine and potentially invalidate legislative and executive actions deemed unconstitutional. Though not explicitly mentioned in the Constitution, its authority was established through early landmark decisions.
The 1803 case of Marbury v. Madison cemented judicial review. Chief Justice John Marshall’s decision asserted the Supreme Court’s role as the ultimate constitutional interpreter. This case set a precedent for the Court to limit both legislative and executive actions.
Before Marbury, judicial review was evident in state decisions. Post-colonial state courts nullified legislation conflicting with state constitutions, reflecting an understanding that courts could check legislative acts guided by constitutional law.
Throughout history, the Supreme Court has periodically checked executive actions, reinforcing the judiciary’s importance in upholding constitutional governance. Decisions like Youngstown Sheet & Tube Co. v. Sawyer demonstrate the judicial branch’s role in restraining executive overreach.
Historical debates between Thomas Jefferson and Alexander Hamilton on federal power illustrate ongoing dialogue about judicial review’s scope. Jefferson expressed concern over judicial activism becoming judicial supremacy, while Hamilton championed it as necessary for legal consistency and individual rights protection.
Modern Judicial Interpretations and Challenges
Recent judicial interpretation of executive power highlights the dynamic nature of American constitutional law. Chief Justice John Roberts’ Supreme Court leadership has been marked by significant cases defining the balance between judiciary and executive branch power.
Presidential immunity is a notable area of tension. The Court has addressed whether sitting presidents can face criminal prosecution for actions taken in office. The recent Trump v. United States decision shows how modern judicial perspectives grapple with historical boundaries of executive accountability. Chief Justice Roberts’ majority opinion crafted new interpretations of presidential immunities, invoking “separation of powers principles” to broadly shield executive actions.
These interpretations are controversial. Dissenting justices challenge the majority’s expansion of executive privilege as departing from original principles. This reflects ongoing debates about interpreting constitutional silence on executive privilege.
The Court’s modern approach to executive power emphasizes context in each decision. As lines between personal and official presidential roles blur, each ruling must carefully assess involved intricacies. Contemporary judicial interpretations continue evolving, maintaining the judiciary’s role as a constitutional balance guardian.
The Role of Originalism in Judicial Decisions
Originalism’s influence in judicial decisions has been central to the Supreme Court’s approach to executive power, with justices like Neil Gorsuch advocating adherence to the Framers’ original intent. This philosophy aims to preserve the Constitution as a stable framework, resistant to shifting political and social trends.
Regarding executive power, originalist principles often surface in debates over presidential authority’s scope. Originalists argue for strict reading where powers not explicitly granted remain outside the president’s purview, aligning with the Framers’ intentions.
“Whenever the Founders needed something important done, they turned to Madison—any important writing.”
Justice Gorsuch has discussed the need for caution in expanding executive power, articulating concerns over modern applications diverging from the Framers’ vision. He believes any power extension should reflect careful historical examination, aligning with Madisonian ideals of limited, balanced governance.
However, interpretations within originalism vary. Critics often point to the need for adapting principles to contemporary governance challenges, arguing that the Constitution’s broad language provides an adaptable framework without losing its foundational purpose.
Debates among originalist justices demonstrate interplay between tradition and adaptation. While they seek to stay true to original understanding, they must reconcile historical intent with modern complexities, negotiating between faithful constitutional interpretation and practical governance realities.
Implications of Judicial Decisions on Executives
Judicial decisions profoundly impact the executive branch, shaping presidential authority boundaries and governance nature. The judiciary’s rulings set precedents influencing current and future administrations, highlighting the United States’ constitutional framework’s power balance.
Recent judicial interpretations related to executive immunity underscore evolving judicial stance on balancing effective executive necessity against accountability need. Chief Justice John Roberts’ decisions reflect ongoing debates on immunity parameters, with implications likely resonating through succeeding administrations.
These judicial decisions’ hypothetical impact on future presidencies is considerable. If courts consistently affirm broad presidential powers, a shift toward more unitary executive theory might occur. Conversely, rulings limiting executive powers could encourage future administrations to seek more collaborative solutions with Congress.
Judicial decisions influence how executives approach contentious policies. Decisions curtailing executive actions can prompt administrations to anticipate legal hurdles, potentially shaping policy crafting, emphasizing constitutional alignment.
As the judiciary continues ruling on contentious issues, it remains integral in preserving the balance envisioned by the Framers, guiding the executive branch through modern governance complexities. These decisions not only safeguard democratic ideals but also provide a framework for presidential actions, fortifying the republic’s commitment to law-accountable government.
In understanding American governance framework, recognizing judicial review’s enduring significance in maintaining constitutional balance is crucial. This principle serves as a vital check on executive power, ensuring the President’s authority aligns with foundational values set forth by the Framers. As we continue interpreting and applying these principles, we uphold a system championing accountability and adherence to constitutional limits.
Explaining the president’s foreign affairs powers
In the case involving the Trump administration’s curtailment of the U.S. Agency of International Development (USAID)’s funding, the Justice Department is asserting that such actions fall under foreign affairs powers granted to the president by the Constitution.
In a petition to the Supreme Court filed in Department of State v. AIDS Vaccine Advocacy Coalition, Acting Solicitor General Sarah M. Harris has made several arguments why President Donald Trump can pause USAID payments while they are being reviewed, including “for programmatic efficiency and consistency with United States foreign policy.”
Harris also argued that the request to resume USAID payments “intrudes on the prerogatives of the Executive Branch. The President’s power is at its apex—and the power of the judiciary is at its nadir—in matters of foreign affairs.”
The AIDS Vaccine Advocacy Commission has argued USAID funding decisions by the Trump administration are an “unconstitutional exercise of presidential power in contravention of congressional will and as an arbitrary and capricious agency action.”
According to the Congressional Research Service, Congress established the USAID program in 1961, and it made USAID an “independent establishment” outside of the State Department in 1988. It annually appropriates funds in accordance with the Foreign Assistance Act of 1961.
For now, the Supreme Court has allowed a partial resumption of USAID spending as it considers the case. While the merits of the USAID case are debated, questions surrounding the extent of the president’s foreign affairs powers will remain relevant to other overseas-related activities the executive branch is undertaking, including setting tariff rates.
The Origins of the President’s Foreign Policy Powers
The debate over the scope of the president’s foreign affairs powers dates back to the 1787 Constitutional Convention in Philadelphia, where the delegates in attendance attempted to define the nature of the executive branch. After much discussion, the founders agreed on a single person as the “President of the United States” who would be chosen for office by “electors.” The electors in turn would be chosen as a result of state elections voted on by the people.
The president’s powers were enshrined Article II, Section 1 of the Constitution, which states that “the executive Power shall be vested in a President of the United States of America.” Article II also gives the president the ability to negotiate treaties, with the advice and consent of the Senate, and to appoint ambassadors and other “public Ministers and consuls,” which therefore grants the president a number of foreign affairs powers.
However, Congress also has foreign relations powers, including its power to approve treaties negotiated by the president. The Constitution allows Congress to regulate foreign commerce, impose import tariffs, and raise revenue. In particular, Article 1, Section 8 gives Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”
Where the foreign affairs powers are shared between the president and Congress, and where they remain separate has been a topic of discussion since the Founding era. In 1793, Alexander Hamilton and James Madison openly disputed the president’s powers in foreign affairs after President George Washington issued a proclamation that the United States would remain neutral in the conflict between France and Great Britain.
In what became known as the Pacificus-Helvidius Debates, Hamilton (writing as Pacificus) believed that “the general doctrine then of our Constitution is, that the executive power of the nation is vested in the president; subject only to the exceptions and qualifications which are expressed in the instrument.” When it came to the foreign affairs power, Hamilton said “a correct and well-informed mind will discern at once that it can belong neither to the legislative nor judicial department and, of course, must belong to the executive.” He reasoned that: “The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties.” Moreover, he wrote, “It is equally obvious that the act in question is foreign to the judiciary department of the government. The province of that department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases.”
Madison, writing as Helvidius, argued otherwise: “If we consult for a moment, the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers.” For example, he added, “To say then that the power of making treaties which are confessedly laws belongs naturally to the department which is to execute laws, is to say that the executive department naturally includes a legislative power. In theory, this is an absurdity—in practice a tyranny.” Madison said it remained to be proven that Constitution delegated solely the powers of making war and peace to the president. “It will not be pretended that this appears from any direct position to be found in the instrument,” he noted.
Noted Court Cases
Well over a century later the Supreme Court addressed the scope of presidential foreign affairs powers in the landmark case, United States v. Curtiss-Wright Export Corporation (1936). Curtiss-Wright, a weapons manufacturer, violated a neutrality ban by selling weapons to Bolivia in a conflict between the country and Paraguay. President Franklin Roosevelt had issued the ban pursuant to powers that had been delegated to him by a joint resolution of Congress. Curtiss-Wright argued that the delegation of power was unconstitutional and that only Congress could exercise such powers.
In his 7-1 majority decision, Justice George Sutherland pointed to a debate on the floor of the House in 1800 and remarks from then-Rep. John Marshall of Virginia: “The president is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” said Marshall, who later became chief justice of the Supreme Court.
Justice Sutherland also said the president could make decisions not specifically authorized by Congress in conducting its wishes: “In view of the delicacy of foreign relations and of the power peculiar to the president in this regard, Congressional legislation which is to be made effective in the international field must often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved,” he wrote.
More recently, in Zivotofsky v. Kerry (2015), the Supreme Court considered the constitutionality of a law enacted by Congress that instructed the State Department to designate the place of birth on a passport as “Jerusalem, Israel,” at the request of the parents of a United States citizen born in Jerusalem.
In his majority opinion, Justice Anthony Kennedy recounted that Congress was involved in many foreign relations actions involving commerce, naturalization, declaring war, and approving treaties and ambassadors.
“The text and structure of the Constitution grant the president the power to recognize foreign nations and governments. The question then becomes whether that power is exclusive,” Kennedy wrote. He believed it was: “Judicial precedent and historical practice teach that it is for the president alone to make the specific decision of what foreign power he will recognize as legitimate.”
But Kennedy also noted Congress had the ability to react to a president’s decision in such matters. “There may be consequences. Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress,” Kennedy concluded.
One long-term foreign relations congressional power that had been delegated to the president by Congress is the power to levy tariffs. In 1934, Congress passed the Reciprocal Trade Agreements Act, which gave President Franklin D. Roosevelt the ability to change tariff rates by 50% and negotiate bilateral trade agreements without additional approval from Congress. The Trade Act of 1974 gave additional powers to the president to negotiate tariffs and non-tariff barriers without congressional approval, unless an agreement contains non-tariff barriers.
The Court and Constitutional Interpretation
“EQUAL JUSTICE UNDER LAW”-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
The Supreme Court is “distinctly American in concept and function,” as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. In 1835, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. “The representative system of government has been adopted in several states of Europe,” he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people.”
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.
The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared.
In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland in 1819, a constitution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.
The Justices must exercise considerable discretion in deciding which cases to hear, since approximately 5,000-7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”
Congress and the Scope of the President’s Article II Foreign Policy Authorities
Summary
In foreign policy, the executive branch has at times asserted that the President has authority under Article II of the Constitution to take action unilaterally—both independent Article II authority to act in the absence of congressional restriction and exclusive Article II authority that Congress is constitutionally prohibited from restricting. Typically, the focus of commentators following such assertions is on the impact they may have on congressional authority. This report examines the issue from a different constitutional perspective: namely, what impact Congress’s decisions to exercise—or decline to exercise—its authorities may have on a court’s analysis of the scope of Article II authorities under long-standing Supreme Court precedent.
Courts generally have declined to delineate precisely the distribution of foreign policymaking when there is a debate as to the scope of presidential authority, mostly either on the ground that the issue is a political question or that the plaintiffs lack standing or a right to sue. See, e.g., Smith v. Obama, 217 F. Supp. 3d 283, 288, 297, 302−04 (D.D.C. 2016); Kucinich v. Bush, 236 F. Supp. 2d 1, 18 (2002). Although there is consequently often a lack of directly controlling precedent regarding the President’s authority to take action unilaterally, the Supreme Court has provided some broad guidance that may inform Congress’s exercise of its foreign policymaking authorities when the executive branch claims Article II authority. See, e.g., Dames & Moore v. Reagan, 453 U.S. 654, 668-69, 678-86 (1981). In particular, the Court has recognized that the actions or inactions of Congress regarding the President’s claims of Article II authority can inform constitutional analysis to resolve separation of powers questions in at least two ways. See id.
First, whether Congress has authorized, prohibited, or remained silent regarding a President’s action may determine the level of judicial scrutiny. In reviewing presidential actions, the Court has stated that, when Congress has authorized the action, the President’s authority is on its firmest footing. See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). On the other hand, if Congress has prohibited the action, the Court has observed that the President’s authority is in its weakest position. See id. In such cases, according to the Court, presidential authority may be upheld only if the President has exclusive Article II powers that Congress is “disabl[ed]” from restricting. See Dames & Moore, 453 U.S. at 669. For other cases—where Congress has been silent as to the President’s action—the Court has been less clear about the appropriate judicial approach. See id. at 668-69.
Second, Congress’s actions or inactions in response to presidential claims of authority over time may inform courts’ constitutional interpretation regarding the scope of Article II authority. In this context, the Court has at times read congressional actions short of express restrictions as acquiescing to the President’s claims of power. See, e.g., Zivotofsky, 576 U.S. at 23-28. The Court has reasoned, for example, that Congress “may be considered to ‘invite'” unilateral action through silence in the face of the President’s claims of authority, or by failure to pass restrictive legislation. Dames & Moore, 453 U.S. at 678.
The Supreme Court has applied these two analytical approaches to hold that the President has independent Article II authority to enter into certain types of executive agreements, see id. at 686-88, and to hold that the President has exclusive Article II authority to recognize foreign states, see Zivotofsky, 476 U.S. at 28. In many other areas of foreign policy, such as treaty withdrawal and the use of armed forces, courts have left the distribution of authority uncertain. See, e.g., Goldwater v. Carter, 444 U.S. 996, 996 (1979); Little v. Barreme, 6 U.S. (2 Cranch) 170, 177 (1804). Congress and the executive branch have asserted claims of authority in these areas that may be in tension and could eventually be judicially resolved. Accordingly, as Congress determines whether and how to assert its legislative and oversight authorities in pursuing its foreign policy goals, it may want to consider the broader potential constitutional implications of a given legislative action or inaction. In particular, Congress may want to consider whether its responses to presidential claims of unilateral foreign policy power might be characterized by courts as authorizing the President, acquiescing in or ceding to claims of independent or exclusive presidential authority, or prohibiting presidential action.
Introduction
In foreign policy, the executive branch has at times claimed that the President has authority under Article II of the Constitution to take action unilaterally—both independent Article II authority to act in the absence of congressional restriction and exclusive Article II authority that Congress is constitutionally prohibited from restricting. Often, the focus in the face of such assertions of presidential authority is on the impact they may have on congressional authority. This report examines the issue from a different constitutional perspective: namely, what impact Congress’s decisions to exercise—or to decline to exercise—its authorities may have on the scope of the President’s Article II authorities under long-standing Supreme Court caselaw on the separation of foreign policymaking powers.
Although the Supreme Court has held that the President has some independent and exclusive Article II foreign policy authorities, courts have generally declined to provide much precision about the scope of the President’s authority to act without congressional sanction; courts frequently refuse to decide cases requiring a determination of the scope of the President’s Article II foreign policy authority on grounds of justiciability doctrines such as the political question doctrine and standing or a right to sue. Further, in those cases that do reach the merits, courts have tended to base their decisions on qualified grounds and broad reasoning, which makes the precedential import of the case uncertain. As the Supreme Court acknowledged in one of its major foreign policy cases, one “may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.”
At the same time, the Supreme Court has adopted two analytical methods that it has recognized as appropriate for cases raising questions about whether the President has Article II authority to take action unilaterally. These methods may serve as guidance for Congress in the exercise of its foreign policymaking authorities, and in particular in its determinations about whether and how to respond to the President’s claims of Article II authority to take action unilaterally. That is because both of these analytical methods depend on what actions Congress has—or has not—made in relation to presidential actions.
First, the Supreme Court had held that the level of judicial scrutiny it will apply in reviewing the constitutionality of a given presidential action depends on whether Congress has authorized, been silent as to, or prohibited that action. Under this approach to review—which is known as the Youngstown framework—the Court has instructed that the level of judicial review applied to a presidential action runs along a “spectrum,” with the greatest deference accorded in cases in which Congress has authorized the action, and the greatest scrutiny applied where Congress has prohibited the action. Although the Court has been less clear about the appropriate level of review in cases in which Congress has been silent as to the action, this spectrum approach suggests the level of review is somewhere in between.
Second, the Supreme Court has explained that, in interpreting constitutional meaning in separation of foreign policymaking powers cases, it is appropriate for courts to consider Congress’s actions or inactions in response to presidential claims of foreign policymaking authority over time. The Court has observed that such congressional actions or inactions, coupled with the President’s claims of authority, constitute historical practice that may serve as a “gloss” on the Constitution’s text that elaborates on its meaning. Accordingly, Congress’s actions and inactions in response to the President’s claims of authority could potentially contribute to a court’s interpretation of constitutional meaning that becomes binding on both the legislative and executive branches. In applying this interpretive method based on historical practice, the Court’s reasoning suggests that congressional responses to presidential action short of prohibition—including authorizations in related areas as well as silence—may serve as evidence of congressional acquiescence to presidential claims of unilateral Article II authority.
This report begins with an explication of the relevance of congressional actions and inactions to the two analytical methods courts may likely apply in separation of foreign policymaking power cases: first, the level of scrutiny to which courts subject a claim of presidential authority; and second, courts’ interpretation of constitutional meaning regarding the scope of the President’s Article II authority. Next, this report examines how the Supreme Court has applied those analytical methods to conclude that the President may exercise unilateral Article II authority in two foreign policy areas: the conclusion of executive agreements and the recognition of foreign states. The report then turns to two foreign policy areas in which Congress and the executive branch have sometimes asserted competing claims of constitutional authority, but for which there is no directly controlling judicial precedent: treaty withdrawal and the use of the armed forces. The report examines congressional and presidential assertions of authority in these two areas in light of the two analytical methods described above and other potentially relevant Supreme Court precedents. Finally, this report proffers considerations for Congress, examining the potential constitutional significance of its actions or inactions in exercising its authorities to engage in foreign policymaking.
The Relevance of Congressional Actions and Inactions
Although there is often a lack of directly controlling precedent regarding the President’s authority to take action unilaterally in foreign policy, the Supreme Court has provided some broad guidance that may inform Congress’s exercise of its foreign policymaking authorities when the executive branch claims Article II authority. In particular, the Court has repeatedly recognized that the actions or inactions of Congress regarding the President’s claims of Article authority can inform constitutional analysis to resolve separation of powers questions in at least two ways. First, whether Congress has authorized, prohibited, or remained silent regarding a President’s action may determine the level of scrutiny to examine the executive branch’s claim of authority. Second, Congress’s actions or inactions in response to presidential claims of authority over time may inform courts’ constitutional interpretations regarding the scope of the President’s Article II authority to take unilateral action. The following sections discuss each in turn.
Congress’s Role in the Level of Judicial Review Applied: The Youngstown Framework
Congressional action or silence in relation to the President’s authority is the lynchpin of the well-established Youngstown framework that the Supreme Court has deemed appropriate in reviewing presidential claims of authority to take foreign policy actions. Under that framework, which derives from Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, courts assess presidential claims of authority based on what Congress has—or has not—said about the matter. As Justice Jackson put it: “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” Justice Jackson accordingly formulated the Youngstown framework in terms of three categories:
| The Youngstown Tripartite FrameworkPresidential Power at its Maximum: Where Congress has expressly or implicitly authorized the President’s action, presidential power is at its “maximum” and “supported by the strongest of presumptions and the widest latitude of judicial interpretation.” Zone of Twilight: Cases in which Congress has neither authorized nor prohibited the President’s action lie in a “zone of twilight in which the President and Congress may have concurrent authority, or in which its distribution is uncertain,” and “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Presidential Power at its Lowest Ebb: Where Congress has expressly or impliedly prohibited the President’s action, presidential power “is at its lowest ebb,” as it is an assertion of presidential authority “at once so conclusive and preclusive that it must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” |
In the 1981 case Dames & Moore v. Regan, the Supreme Court elaborated on the Youngstown framework by observing that “it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.” This Youngstown spectrum concept, the Court continued, “is particularly true as respects cases … involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.” The Dames & Moore Court’s reasoning thus seems to suggest that Congress would have to restrict a given presidential foreign policy action with a relatively high degree of specificity for the Court to determine that a case lies in Youngstown‘s category three, where it is subject to a more exacting level of judicial scrutiny than presidential actions falling into the category one-to-two region of the Youngstown spectrum.
The Supreme Court appears to have upheld in a single instance a presidential action that it deemed to be in category three because the action contravened a statute—in the 2015 case Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II). In that case, it appears that the Court for the first—and thus far the only—time upheld the executive branch’s refusal to comply with a foreign policy statute based on a determination that the President had “exclusive and conclusive” constitutional authority—namely, the power to recognize foreign states. The Court emphasized, however, that its holding was a narrow one and that “it is essential that the congressional role in foreign affairs be understood and respected.” As discussed below, the full import of Zivotofsky II for the distribution of foreign policy powers between Congress and the President in future cases remains unclear.
Congress’s Role in the Interpretation of Constitutional Meaning: Historical Practice
In addition to the determination of the type of judicial review that courts may apply to a challenged presidential foreign policy action, congressional actions or inactions may factor into courts’ interpretation of constitutional meaning regarding the scope of the President’s Article II authority. In cases raising the question of whether the President has Article II authority to take unilateral action, courts may “put significant weight upon historical practice” of the legislative and executive branches. Such practice, according to the Supreme Court, may “be treated as a gloss” that elaborates on the meaning of the Constitution’s provisions. In examining historical practice, the Court looks to past instances in which the President has asserted the type of authority at issue in the case and assesses congressional actions or actions in response to such assertions. Such practice, the Court has reasoned, may serve as evidence of the legislative and executive branches’ understanding of the scope of the President’s authority that courts may find relevant in ascertaining constitutional meaning regarding the separation of foreign policymaking powers.
When considering congressional responses to past claims of presidential authority, the Court in Dames & Moore determined that the “failure of Congress specifically to delegate authority does not, ‘especially … in the areas of foreign policy and national security,’ imply congressional disapproval of action taken by the Executive.” Instead, according to the Court, certain congressional actions and inactions may manifest implied congressional approval of or acquiescence in the President’s assertion of authority, as described below.
| Indicators of Congressional Implicit Approval of or Acquiescence in Presidential Authority Recognized by the Supreme Court Statutes that delegate broad authority to the President in related areas. The absence of congressional protest in the face of repeated instances of presidential claims of authority to take the action, Congressional consideration of, but failure to pass legislation limiting the authority of the President to take the action at issue |
Although the Court acknowledged that such “past practice does not, by itself, create power,” it reasoned that “long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the action had been taken in pursuance of its consent.” Reasoning that “such practice is present here and such a presumption is … appropriate,” the Court concluded that “Congress may be considered to have consented to the President’s authority,” and “to have ‘invited’ ‘measures on independent presidential responsibility.'”
Supreme Court Application of the Youngstown Framework and Consideration of Historical Practice
The Supreme Court has applied these two analytical approaches—the Youngstown framework and the consideration of historical practice in constitutional interpretation—in holding that the President has independent authority to enter into certain types of executive agreements and exclusive Article II authority to recognize foreign states.
Independent Article II Authority to Conclude Certain Types of Executive Agreements
International agreements that create binding legal obligations on the United States and the other parties fall into one of two categories under U.S. law and practice: treaties and executive agreements. According to a 2020 empirical study conducted by various scholars, “since the late 1930s,” treaties are not the way that the United States creates most of its international commitments. Instead, these scholars asserted, “well over ninety percent of all international agreements concluded on behalf of the United States have been executive agreements rather than treaties.” Although the distinction is irrelevant in terms of international law—that is, international agreements are considered to be binding on the United States regardless of whether they were concluded as a treaty or executive agreement under U.S. domestic law—the distinction matters for distribution of foreign policy powers from a U.S. constitutional perspective. Executive agreements are not subject to Senate advice and consent pursuant to the Constitution’s Treaty Clause. Moreover, although there may be some congressional involvement in many executive agreements, the Supreme Court has also held that the President has some independent Article II authority to enter into certain types of executive agreements, as discussed below.
Supreme Court Caselaw
The Supreme Court’s principal cases on the constitutionality of executive agreements involve challenges to claims settlement agreements with foreign governments. In most of these cases, the central issue was about the effect of executive agreements on conflicting state laws. Accordingly, although in these cases the Court upheld the President’s authority to enter into the executive agreement at issue without Senate advice and consent, it did not directly address the question of the proper distribution of federal powers related to executive agreements. Rather, the Court to a considerable extent relied on the broad foreign policy authority of the national government as a whole to conclude that the executive agreement at issue was a valid exercise of federal power that trumped any contrary state laws pursuant to the Supremacy Clause. In these cases, the Court relied both on what it characterized as the broad authority of the President in foreign affairs and on its determination that Congress had acquiesced in the practice of presidential entry into executive agreements generally or in the entry into the particular agreement at issue.
The principal Supreme Court case addressing the constitutionality of an executive agreement based on federal separation of powers rather than on federal supremacy over state law is Dames & Moore v. Regan. This case also contains reasoning that the Supreme Court has relied on in cases involving other separation of foreign policy powers issues. Dames & Moore involved a challenge to the 1981 executive agreement with Iran, concluded by President Carter, that provided for settlement of claims in exchange for the release of U.S. hostages. Specifically, the Court considered a challenge to President Reagan’s subsequent suspension, pursuant to this agreement, of pending claims brought by U.S. nationals against Iran in U.S. courts.
The Court explained at the outset of its opinion the applicability of the Youngstown framework to assess the President’s authority to conclude an executive agreement. The Court seems to have concluded that the challenged action fell somewhere within Youngstown category two. The Court did not make explicit the appropriate level of scrutiny, but suggested a relatively high degree of deference to the President was appropriate because of its determination that congressional disapproval should not be inferred from a lack of express delegation, particularly “in areas of foreign policy and national security.” The Court’s analysis appears to have proceeded on the assumption that the President’s conclusion of the executive agreement is entitled to such deference under the Youngstown framework because of the existence of related statutes that, although not authorizing the challenged presidential action, were “highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case.”
In ultimately upholding the President’s authority to conclude the executive agreement suspending U.S. claims against a foreign state without congressional approval, the Dames & Moore Court relied on what it determined to be “the history of [congressional] acquiescence in executive claims settlement.” According to the Court, Congress demonstrated such acquiescence through actions and inactions of the types described in the text box above, including by enacting legislation “involving executive agreements” settling claims against foreign states that “did not question the fact of the settlement or the power of the President to have concluded it.”
The Court also concluded that congressional acquiescence in the President’s power was demonstrated by a statement in a Senate report regarding the intent of the International Emergency Economic Powers Act (IEEPA). Acknowledging that “IEEPA was enacted to provide for some limitation on the President’s emergency powers,” the Court observed that, in the Senate report, “Congress stressed that ‘nothing in this act is intended … to impede the settlement of claims of U. S. citizens against foreign countries.'” The Court further cited the provision in IEEPA that provides that, “notwithstanding” the termination of a national emergency, “any IEEPA authorities … which are exercised … on the basis of such national emergency to prohibit transactions involving property in which a foreign country or national thereof has any interest, may continue to be so exercised to prohibit transactions involving that property if the President determines that the continuation of such prohibition with respect to that property is necessary on account of claims involving such country or its national.” The Court did not mention Congress’s qualification of this authority granted to the President in IEEPA (i.e., the provision for termination of the national emergency by concurrent resolution, after which “such authorities may not continue to be exercised under this section”).
Finally, the Court found that Congress had demonstrated acquiescence in the President’s authority to conclude executive agreements by “reject[ing] several proposals designed to limit the power of the President to enter into executive agreements, including claims settlement agreements.” This longstanding practice of what the Court concluded to be congressional acquiescence in repeated claims of presidential authority to conclude executive agreements, the Court reasoned, reinforced its conclusion in previous cases that the President “ha[s] some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate.” According to the Court, that power, coupled with the President’s power to recognize foreign governments, provided further support for the existence of the President’s authority to enter into executive agreements settling claims with foreign governments.
The Dames & Moore opinion did not address whether the scope of the President’s Article II authority to conclude executive agreements extends beyond foreign claims settlement, and whether any of it is exclusive and thus would preclude congressional restriction. There is no directly controlling precedent in which the Court has elaborated on the extent of the President’s Article II authority to conclude executive agreements that it recognized in Dames & Moore. For its part, the executive branch maintains that it has authority to conclude some executive agreements based solely on its constitutional authorities, including the President’s authorities “as Chief Executive to represent the nation in foreign affairs”; “to receive ambassadors and other public ministers, and to recognize foreign governments“; and “as ‘Commander-in-Chief.'” Congress has taken various actions that arguably impose some restrictions on the President’s authority to conclude some executive agreements, including those described in the next section.
Examples of Congressional Assertions of Authority Related to Executive Agreements
In contrast with treaties, there is no express constitutional requirement that the President submit executive agreements for congressional approval. Congress has, however, periodically imposed such a requirement. For example, the United Nations Participation Act of 1945 requires the President to secure congressional approval of any agreement made pursuant to Article 43 of the U.N. Charter, making U.S. armed forces available to enforce Security Council resolutions. Similarly, Congress has prohibited the President from concluding agreements establishing international criminal tribunals or requiring the United States to make “militarily significant” reductions in armed forces or weapons without securing Senate advice and consent or statutory authorization. Additionally, Congress in effect prohibited the President from acceding to the international agreement that established the International Criminal Court through executive agreement by enacting a statute requiring Senate advice and consent for the United States to become a party to that agreement.
Congress has also provided for its involvement to varying degrees in statutes addressing several types of executive agreements, including trade agreements, nuclear cooperation agreements, international fishery agreements, and international agreements related to debt relief. Outside of the trade context, most of these statutes do not condition the President’s conclusion of the agreement on congressional approval, but rather allow for the agreement to go into effect absent congressional prohibition through a joint resolution after a designated time period.
Congress has also asserted oversight authority regarding the President’s conclusion of executive agreements. In the early 1970s, after Congress became concerned about the increase in U.S. international commitments that Presidents had created through executive agreements, Congress enacted what the Senate Foreign Relations Committee characterized as “modest legislation” requiring that the President submit to Congress all international agreements not submitted to the Senate as treaties. “Before undertaking to reexamine and then perhaps to reassert its proper constitutional authority in the area of the treaties,” the Committee stated, “Congress must first ascertain that at least it knows of the existence and content of agreements contracted with foreign governments by the executive.”
This legislation, enacted in 1972, is known as the Case-Zablocki Act (Case Act), and it has been amended five times to address implementation gaps perceived by Congress. The most recent and substantial amendment, enacted in 2022, requires the Secretary of State to submit to the leadership of both houses and to the Senate Foreign Relations and House Foreign Affairs Committees monthly reports on all international agreements “signed, concluded, or otherwise finalized during the prior month.” Additionally, the State Department must provide not only the text of the agreement, as required under the original Case Act, but also “a detailed description of the legal authority that, in the view of the Secretary, provides authorization for each international agreement” and that includes citations to specific constitutional, treaty, and statutory articles, sections, or subsections.
Exclusive Article II Authority to Recognize Foreign States
In Zivotofsky II, the Court struck down a federal statute and held, for what appears to be the first time, that the President has an “exclusive” and “conclusive” power that “disables Congress from acting on the subject”—specifically, the recognition of foreign states. Zivotofsky II involved a challenge to the State Department’s refusal to comply with a statute requiring the Department to record the birthplace of U.S. citizens born in Jerusalem as “Israel” if requested by the citizen or the citizen’s guardian. According to the Department, its long-standing policy of recording the birthplace as “Jerusalem” reflected the executive branch’s decision to leave the question of the sovereign status of Jerusalem as a matter to be resolved in negotiations. The government argued that this policy was based on the President’s exclusive power to recognize foreign states, and that the statutory requirement impermissibly infringed on that power.
As in Dames & Moore, the Court began by observing that “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown.” Unlike in Dames & Moore, though, the Court concluded that the President’s action at issue—a “refusal to implement” a statute—” falls into Justice Jackson’s third category.” Accordingly, the Court stated, the President’s claim of authority “must be ‘scrutinized with caution,’ and he may rely solely on powers the Constitution grants to him alone.”
In Zivotofsky II, the Court confirmed the importance of the historical practice of the legislative and executive branches in courts’ constitutional analysis in separation of powers cases. Acknowledging that the text of the Constitution does not expressly reference the recognition power, that the Framers’ intent was unclear, and that there was not any directly relevant Supreme Court precedent, a five-Justice majority of the Court relied relatively heavily on its determinations about the constitutional import of historical practice since the Founding to hold that the President not only has the power to recognize foreign states, but that that power resides solely in the presidency.
In some respects, the majority’s approach to historical practice appears to be similar to the approach that the Court took in Dames & Moore, which, as discussed above, arguably tends to read many congressional actions and inactions as acquiescing in claims of presidential authority related to foreign policy. The Zivotofsky II majority’s reading of historical practice suggests that only congressional action “contrary to” the President’s exercise of a power will suffice as evidence of congressional assertion of that power. As the Court observed, “‘the most striking thing’ about the history of recognition ‘is what is absent from it: a situation like this one,’ where Congress has enacted a statute contrary to the President’s formal and considered statement concerning recognition.”
Although the Court acknowledged that there were historical examples involving both congressional and presidential actions related to a recognition decision, the majority found that these practices demonstrated either that “Congress had acquiesced in the Executive’s exercise of the recognition power” or that “the President has chosen, as may often be prudent, to consult and coordinate with Congress.” The majority’s understanding of the branches’ respective practices also appeared to be informed by functional considerations such as the ability of the President to “speak … with one voice” on behalf of the nation in the international arena. The Court read congressional authorizations or approvals related to Presidents’ recognition decisions as acknowledgments of the President’s exclusive recognition authority, rather than reading them as congressional exercises of such authority.
After holding that the President has exclusive Article II authority to recognize foreign states, the Court determined that the passport statute required the Secretary of State to “directly contradict” the President’s recognition decision. As a result, the Court also held that the statute must be struck down because Congress had thereby “improperly” “aggrandized its power at the expense of another branch.” Emphasizing that its decision “does not question the substantial powers of Congress over foreign affairs,” the Court suggested that its holding was a narrow one that left room for Congress to “express its disagreement with the President’s recognition decision in myriad ways,” such as by “enacting an embargo, declining to confirm an ambassador, or even declaring war.” The Court further emphasized that its holding was confined to the President’s recognition power and that the case did not require it to address the executive branch’s broader claims that that power derives from the President’s “exclusive authority to conduct diplomatic relations” and possession of “the bulk of foreign-affairs powers.”
Foreign Policy Areas Where Distribution of Authority Is Not Yet Judicially Delineated
Although the Zivotofsky II Court drew a constitutional line in holding that the President has exclusive Article II authority to recognize foreign states, the Court did not address questions regarding the constitutional distribution of the “bulk of foreign-affairs powers.” This section discusses two foreign policy areas in which Congress and the executive branch have asserted what are arguably competing claims of constitutional authority, but for which there is no directly controlling judicial precedent: treaty withdrawal and the use of the armed forces.
Treaty Withdrawal Powers
As a matter of international law, a country may withdraw from a treaty pursuant to its terms or other international laws with the submission of a written instrument of notification “signed by the Head of State, Head of Government or Minister for Foreign Affairs.” As with entering into treaties, international law does not specify the domestic legal processes by which countries authorize executive officials to terminate a country’s participation in a treaty, but rather leaves such processes up to each country’s particular system of governance. In the United States, termination is not explicit while entering into treaties is specifically delineated in the Constitution.
Supreme Court Caselaw
The Supreme Court has thus far not addressed the question of the distribution of the power to withdraw from treaties. When President Carter did not seek congressional approval before announcing the United States’ intent to withdraw from the 1954 mutual defense treaty with Taiwan, twenty-five Members of Congress filed suit challenging the action on the ground that the Constitution does not provide the President with the authority to unilaterally withdraw from treaties. In Goldwater v. Carter, a divided Supreme Court declined to answer the question and ultimately remanded the case with instructions to dismiss the complaint.
A four-justice plurality concluded that dismissal was proper because the case presented the Court with a nonjusticiable political question “that should be left for resolution by the Executive and Legislative Branches of the Government.” In reaching this conclusion, the plurality reasoned that, “while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty,” and that the case “involves foreign relations—specifically a treaty commitment to use military force in the defense of a foreign government if attacked.” Justice Powell cast the fifth vote in favor of dismissal, but wrote separately to express his disagreement with the plurality’s reasoning that the case raised a nonjusticiable political question. Rather, according to Justice Powell, dismissal was proper because the case was not ripe for judicial review, as Congress had not yet “by appropriate formal action … challenged the President’s authority to terminate the treaty with Taiwan.”121 If Congress were to do so, he maintained that the Court “would have the responsibility to decide whether both the Executive and Legislative Branches have constitutional roles to play in termination of a treaty.”
The Supreme Court has not considered the issue of the authority to withdraw from treaties since Goldwater, but in the wake of the case, lower courts faced with the issue have generally declined to reach the merits, either on the ground that the case raised a political question or that the plaintiffs lacked standing. In the absence of controlling precedent, it is unclear what the current Court would do if faced with the issue again. For the time being, the issue is thus one that the political branches may address through the exercise of their respective authorities, which could in turn potentially impact a court’s analysis with respect to what level of review courts should apply to a President’s claim of authority to unilaterally withdraw from a treaty and its constitutional interpretation to determine whether Article II provides such authority.
Congressional and Presidential Practice
The practice of Congress and the executive branch regarding treaty withdrawal authority have changed over time. In the nineteenth century, treaty termination generally involved joint congressional and executive action—either Congress or the Senate provided the President with prior authorization or subsequent approval for withdrawal. Beginning in the twentieth century, Presidents began withdrawing from some treaties unilaterally, a practice which accelerated during World War II.
This practice of presidential unilateral withdrawal from treaties largely went unopposed until the 1960s and 70s, when Congress began holding hearings and passing legislation in response to what it perceived as a need to reassert its foreign policy authorities in various areas, including those related to international agreements. The possibility of the President’s unilateral treaty withdrawal was of particular concern for Congress in the context of the United States’ expected withdrawal from the defense treaty with Taiwan once it became clear in the late 1970s that President Carter intended to recognize the government of the People’s Republic of China’s sovereignty over Taiwan. In response, Congress enacted legislation expressing its sense “that there should be prior consultation between the Congress and the executive branch on any proposed policy changes affecting the continuation in force of the Mutual Defense Treaty of 1954,” and the Senate Foreign Relations Committee held three days of hearings on a resolution expressing the sense of the Senate that its “approval . . . is required to terminate any mutual defense treaty between the United States and another nation.” A group of Members subsequently brought suit against the President challenging his unilateral withdrawal from the treaty, which, as noted, was dismissed after the Supreme Court deemed it nonjusticiable.
For at least the latter part of the twentieth century, the executive branch has often taken the position asserted by the Carter Administration in withdrawing from the mutual defense treaty with Taiwan: that the President has unilateral power to withdraw from treaties absent congressional restriction, thus apparently leaving open the possibility that Congress may have authority to enact restrictions on unilateral treaty termination. In 2020, the Department of Justice’s Office of Legal Counsel (OLC) published an opinion maintaining, for the first time, that the President’s treaty withdrawal power is an exclusive one that Congress is constitutionally prohibited from infringing upon. The opinion addressed a statutory provision that required the President to provide Congress at least 120 days’ notice before withdrawing from the multilateral Treaty on Open Skies. Contending that congressional restrictions on treaty withdrawal interfere with the President’s “exclusive authority to execute treaties and to conduct diplomacy,” the OLC concluded that the statutory requirement of a congressional-notice period prior to withdrawal was unconstitutional. (Although OLC opinions are legal arguments and not binding on courts or Congress, the executive branch generally treats them as binding on itself.)
In 2023, Congress advanced a different constitutional interpretation regarding the distribution of power to withdrawal from a treaty by enacting legislation specifying the terms for withdrawal from the North Atlantic Treaty. This treaty establishes the North Atlantic Treaty Organization (NATO) and obligates the countries that are parties to treat an attack against one as “an attack against them all.” Section 1250A of the 2024 National Defense Authorization Act (NDAA) prohibits the President from “suspend[ing], terminating, denounc[ing], or withdrawing the United States from the North Atlantic Treaty” without Senate advice and consent or an act of Congress. In signing the bill into law, President Biden stated his position was that a number of the NDAA’s provisions interfered with the President’s constitutional authorities related to foreign affairs, but he did not mention Section 1250A. During his presidency, President Biden did not publicly withdraw the 2020 OLC opinion claiming exclusive presidential power to withdraw the United States from treaties.
Section 1250A appears to be the first, and thus far the only, congressional prohibition of unilateral withdrawal from a treaty by the President. Congress has also enacted other types of restrictions related to treaty withdrawal that arguably reflect a congressional understanding that treaty withdrawal authority is shared rather than exclusive to the President. Potential examples include the statute requiring that the President provide Congress with a notice period before withdrawing from the Open Skies Treaty, statutory restrictions on the President’s ability to unilaterally modify treaties, and statutes prohibiting the President from altering U.S. international legal obligations (as treaty withdrawal would) unless through a Senate-approved treaty.
War Powers
Many of the foreign policy powers granted to Congress in Article I concern the use of armed forces: the powers to declare war; to establish, fund, and regulate federal armed forces; to “provide for the common Defence”; to “grant Letters of Marque and Reprisal”; and to “make Rules concerning Captures on Land and Water.” Further, Congress may “make all laws which shall be necessary and proper” to execute the war powers granted to Congress and the President.” Article II grants the President power related to the use of armed forces with the designation as the country’s “Commander in Chief.” Although the Supreme Court decided some early cases about the first two branches’ war powers, the implications of those cases in the modern military context is unclear. To varying degrees the President and Congress have weighed in on the extent of their powers through their practice over time.
Supreme Court Caselaw
In some early nineteenth century cases, the Supreme Court discussed congressional war powers in broad terms and focused on statutory authorizations in determining whether the use of force by U.S. naval and private ships to capture French ships was lawful. In one case, the Court held invalid the President’s directive to capture U.S. vessels bound from a French port to the United States on the ground that it fell outside the scope of authority that Congress had delegated to the President to capture ships bound to French ports. The Court explained, however, that its decision left open the question of whether the President would have unilateral constitutional power to take such action absent any congressional restriction.
Some of the Court’s later nineteenth century cases include reasoning suggesting that there are two areas in which the President has unilateral Article II authority related to the use of armed force, but the Court provided minimal guidance on the extent the President may exercise authority in these areas. First, in Ex parte Milligan, Chief Justice Salmon Chase posited in a concurring opinion joined by three other Justices that the President has some independent—and possibly exclusive—power to direct military campaigns:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief.
Second, in the Prize Cases, the Court upheld President Lincoln’s blockade of southern ports on the ground that the President has power to defend U.S. territory against an insurrection or invasion in the absence of a congressional declaration of war or other “special” authorization to use force. The Court was unclear, however, about whether the source of this power was the President’s Article II authority alone or that authority combined with broad congressional authorization. The Court observed that the President “is bound to take care that the laws be faithfully executed” and “is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.” Although the President “has no power to initiate or declare a war,” the Court continued, “by various Acts of Congress … he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” Accordingly, the Court concluded: “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”
Along with these early Supreme Court cases, founding era documents, and the War Powers Resolution (WPR), provide some support for the claim that the President has some degree of independent power both to direct military campaigns and to act in defense of the nation against an invasion or insurrection. These independent powers are also recognized by many commentators, even if their contours are debated. Courts have, however, largely declined to weigh in on challenges to presidential use of the armed forces on non-justifiability grounds such as standing and the political-question doctrine. As in the context of treaty withdrawal, the actions and inactions of Congress in relation to presidential claims of authority could impact judicial evaluation of powers related to the use of armed forces in any future cases, should courts agree to hear them.
War Powers According to Congress
A principal mechanism through which Congress has advanced its interpretation of the division of war powers is the 1973 WPR, which was enacted after Congress overrode President Nixon’s veto. Congress’s stated purpose in the WPR is “to fulfill the intent of the framers of the Constitution” by “insuring that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.”
Congress stated its understanding of the scope of the President’s independent Article II power “to
introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” in Section 2(c) of the WPR: Absent “a declaration of war” or “specific statutory authorization,” this section provides that the President has authority to take such action only in response to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Although the WPR does not define “national emergency” or “attack,” the law arguably suggests that, whatever the full scope of the President’s independent constitutional authority to deploy U.S. armed forces to respond to “a national emergency created by an attack” absent congressional authorization, Congress understands this authority to be temporally limited. In the absence of a declaration of war, the WPR requires the President to submit to Congress a report within 48 hours of introducing U.S. forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The WPR provides that the President must withdraw U.S. forces within 60 days after such a WPR report was submitted or required to be submitted (whichever is earlier) unless Congress “(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.” This 60-day clock may be extended by 30 days “if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
The WPR elaborates on “specific statutory authorization” by providing that it “shall not be inferred … from any provision of law … including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities … and states that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.” Additionally, the WPR states that the requisite statutory authorization “shall not be inferred … from any treaty … unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities … and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.”
Most of the remainder of the WPR establishes mechanisms that equip Congress to implement its understanding of the two branches’ respective war powers by overseeing and potentially constraining the President’s use of armed forces in the absence of congressional authorization. Specifically, the submission or required submission of a WPR report because of the introduction of U.S. armed forces into hostilities triggers the applicability of expedited procedures for congressional consideration of the President’s action and possible prohibition or authorization before the 60-day (or 90-day if extended by the requisite presidential certification) termination deadline.
In addition to expedited procedures for consideration of whether to require the President to terminate the use of U.S. armed forces, the WPR provides that Congress may require such termination by a concurrent resolution—that is, by a majority vote of both houses of Congress without presidential signature. Ten years after the WPR’s enactment, the Supreme Court addressed the constitutionality of what is known as the “legislative veto” provision—which allows one house to invalidate an agency’s action by majority vote—in a statute unrelated to the WPR. The executive branch and some commentators have interpreted this decision as also invalidating the WPR’s concurrent resolution provision. In response to the Court’s decision, Congress did not amend the WPR but enacted separate legislation in 1983 providing for expedited procedures in the Senate for “[a]ny joint resolution or bill introduced in either House which requires the removal of United States Armed Forces engaged in hostilities outside the territory of the United States, its possessions and territories, without a declaration of war or specific statutory authorization.”
Congress has required additional reporting from the President regarding use of armed forces since enactment of the WPR. No law requiring the President to terminate use of U.S. armed forces engaged in hostilities outside of U.S. territory has ever been enacted, but Congress has periodically used the expedited procedures to consider directing the President to terminate the use of U.S. armed forces. Congress passed such legislation in response to the first Trump Administration’s strikes in Iran in 2020, but ultimately failed in its attempt to override President Trump’s veto.
Even in the absence of a statutory directive to terminate use of U.S. armed forces, however, the WPR’s default provision requiring termination in 60 (or 90) days would arguably render any continued use of U.S. armed forces absent congressional approval in contravention of the WPR. If a court were to make that determination, it would potentially place the President’s action in category three of the Youngstown framework, where presidential authority is at its “lowest ebb” and will only be upheld if the President’s authority exercised is “exclusive and preclusive” of congressional authority. Although some cases have been filed challenging presidential actions on the ground that they violate the WPR, courts have thus far declined to hear them.
War Powers According to the President
The executive branch has advanced its own interpretations of the President’s independent Article II war powers, which have generally been more expansive than the interpretation advanced by Congress in the WPR. Two of the primary avenues through which the executive branch has provided arguments for its claims of war powers are OLC opinions and the President’s WPR reports to Congress. OLC opinions have played a particularly prominent role in the development of executive branch interpretations of the scope of the President’s unilateral war powers because the opinions have analyzed the constitutionality of a wide variety of military actions over time, ranging from large-scale and long-term conflicts to short-term bombing campaigns. In many opinions, OLC cites its previous opinions as authority alongside caselaw. In the absence of much directly controlling judicial precedent regarding the use of armed forces, OLC opinions on war powers feature prominently in executive branch interpretations of Article II authorities.
In part based on the position that the WPR’s restrictions infringed on the President’s constitutional powers, President Nixon vetoed the WPR, and subsequent administrations have continued to contest the constitutionality of the WPR based on the executive branch’s interpretations of independent presidential authority to use armed force, which have generally tended to become more expansive over time. In a 1984 opinion, the OLC stated: “Were the Executive to concede that § 2(c) of the WPR represented a complete recitation of the instances in which United States Armed Forces could be deployed without advance authorization from Congress, the scope of the Executive’s power in this area would be greatly diminished.”
Executive branch interpretations of the President’s war powers that have been asserted in OLC opinions and WPR Reports generally concern two categories: (1) independent presidential authority to initiate military operations; and (2) independent presidential authority to use force in self-defense.
Executive Branch Claims of Independent Authority to Initiate the Use of Armed Forces
The OLC has never proffered a competing “complete recitation” of its understanding of the President’s independent authorities to initiate the use of armed forces in the absence of congressional authorization and has explicitly declined to do so. The OLC has, instead, provided a non-exhaustive list of the situations in which it believes the President has such authority. Further, in more recent years, the OLC has articulated a two-part inquiry for determining the situations where such authority exists. According to that inquiry, the President has independent power to initiate the use of armed forces if: (1) “the President could reasonably determine that the military action serves important national interests”; and (2) “the anticipated nature, scope and duration of the conflict [would not] rise to the level of a war under the Constitution.” The OLC maintains that the President’s independent constitutional authority in situations meeting these two conditions “derives from the President’s ‘unique responsibility,’ as Commander in Chief and Chief Executive, for ‘foreign and military affairs,’ as well as national security.”
According to the OLC, the identification of qualifying “national interests” is largely within the President’s discretion as “a question more of policy than of law.”200 “The aim,” according to the OLC, “is … to set forth the justifications for the President’s use of military force and to situate those interests within a framework of prior precedents.” The OLC has posited that that body of prior precedents is large: “This Office has recognized that a broad set of interests would justify use of the President’s Article II authority to direct military force.” Interests that the executive branch has maintained amount to “national interests” range from seemingly relatively discrete ones—such as protecting U.S. citizens and property abroad—to ones phrased more broadly—such as maintaining regional stability, responding to humanitarian crises, and “preserving the credibility and effectiveness of the United Nations Security Council.”
In light of the fact that the OLC understands the answers to the “national interests” inquiry to essentially be within the discretion of the President, the arguably constraining part of the inquiry appears to be the second one: whether the “anticipated nature, scope and duration of the conflict” would amount to “war” in the constitutional sense. The OLC has provided a non-exhaustive set of factors that it maintains are relevant in making this determination, including the “antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment,” whether “the planned deployment … would … involve extreme use of force,” whether the operation has a “limited mission,” and whether it is “likely that the United States [would] find itself in extensive or sustained hostilities.”
Such a factor-based analysis arguably affords a considerable amount of discretion to the President. The OLC has stated that the question of whether a military operation amounts to “war” in the constitutional sense “is highly fact-specific and turns on no single factor. Further, it appears that the executive branch relies almost entirely on its own opinions and interpretation of history in determining whether a military operation would amount to “war.” By way of illustration, in at least two instances, the OLC has maintained that operations involving airstrikes and no ground forces fell short of “war” because the risk to U.S. troops was limited. At the same time, the OLC has also claimed that deployment of ground forces does not necessarily make the operation amount to “war” if other factors appear to mitigate the risk to troops, and has further emphasized that the deployment need not be “without some risk” in order to be within the President’s independent constitutional authority. Based on such reasoning, the OLC determined in 1994 that the President had unilateral authority to deploy U.S. armed forces in Bosnia, even though the President’s “deployment of 20,000 troops on the ground … raise the risk that the United States will incur (and inflict) casualties,” and that “[d]isengagement of ground forces can be far more difficult than the withdrawal of forces deployed for air strikes or naval interdictions,” because other factors sufficiently mitigated those risks.
It appears that the executive branch has not yet publicly maintained that the President’s independent presidential authority to initiate the use of armed forces short of “war” to pursue “important national interests” is necessarily exclusive, but rather only that it “exists at least insofar as Congress has not specifically restricted it.” It is not clear what position the executive branch would take if pressed to do so by such a congressional restriction. As noted, although Congress has passed legislation requiring the President to terminate the use of armed forces, it has never successfully enacted such legislation over the President’s veto.
The executive branch’s precedent for its assertions of independent authority to initiate the use of armed forces that it deems to be both in the “national interest” and short of “war” has accumulated and tended to expand over time. According to the OLC, “the ‘pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, evidences the existence of broad constitutional power.'” This assertion may arguably draw on Supreme Court caselaw recognizing that, in interpreting the constitutional allocation of powers between the political branches, courts often “put significant weight upon historical practice.” The executive branch has relied on similar reasoning in making arguments about the scope of the President’s independent authority to use armed force in self-defense, as addressed below.
Executive Branch Claims of Independent Presidential Authority to Use Armed Forces in Self-Defense
As discussed, both Supreme Court precedent and the WPR appear to recognize that the President has some independent Article II authority to use armed forces in self-defense—specifically, to defend the nation from an “invasion by a foreign nation” (in the words of the Supreme Court) or in response to a “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” (in the terms of the WPR). The executive branch’s interpretation of its independent authority to use defensive force appears to be broader than that recognized by either the Supreme Court or Congress.
Post-World War II, the executive branch has sometimes incorporated broad interpretations of when nation states may use force in self-defense under international law into the President’s claimed Article II authority to use armed forces without congressional authorization. Using such reasoning, the executive branch has argued that the President’s independent constitutional authority to use defensive force encompasses both “collective self-defense“—defending partner forces—and “anticipatory” self-defense—”preemptive” self-defense to prevent anticipated attacks. Additionally, the executive branch has maintained that the United States has the right under international law to use armed forces against non-state actors within another state’s territory without that state’s consent if that state is “unwilling and unable” to counter the threat posed by the non-state actors. Although Presidents have sometimes justified the use of armed forces in such circumstances based on statutory authorizations for the use of military force as well as on Article II authority, they also appear to have done so based on Article II authority alone.
In recent years, the executive branch has advanced another theory of the President’s independent authority to use defensive force. Under this theory, which executive branch officials have referred to as “ancillary defense,” when the United States is engaged in military operations, the President has independent Article II authority to use armed forces in self-defense or to defend partners, even against threats that may be largely unrelated to the primary mission and the authorities underlying it. Thus far, it appears that the executive branch has asserted “ancillary defense” authority in the context of military operations that it has maintained it carried out pursuant to statutory authorizations for the use of military force (AUMFs). According to the executive branch, “statutes that authorize the use of necessary and appropriate force, including the 2001 AUMF and 2002 AUMF, encompass the use of force both to carry out the missions under the statutes and to defend U.S. or partner forces as they pursue those missions.”
It is unclear whether the executive branch would argue that this “ancillary defense” theory applies not only in cases involving statutory authorizations, but also in cases involving military operations that the executive branch initiated based on its asserted independent Article II authority to use armed forces (i.e., to use armed forces in the “national interest” if it anticipates that the operation will fall short of “war” in the constitutional sense). Such an argument would arguably represent an expansion in the executive branch’s claimed presidential authority to use armed forces without congressional authorization.
Although executive branch assertions of presidential Article II authority to use the armed forces without congressional authorization are not binding on either the courts or Congress, it is possible that, if a court were to agree to hear a case challenging the President’s use of the armed forces, it may find such executive branch assertions of authority and contemporaneous congressional responses legally relevant.
Legal Considerations for Congress in the Exercise of Foreign Policymaking Authorities
As discussed, the Supreme Court has held that the President has some independent Article II authority in some foreign policy areas, including executive agreements and the use of the armed forces in self-defense, and that the President has exclusive Article II authority to recognize foreign states. The Court has not precisely delineated the scope of these authorities, however, and has struck down a statute on the ground that it interfered with a foreign policy authority exclusive to the President only once—in 2015 in Zivotofsky II. Additionally, in Zivotofsky II, the Court emphasized that “it is essential the congressional role in foreign affairs be understood and respected,” and declined to address the executive branch’s claims that the President has exclusive authority not only to recognize foreign states, but also “to conduct diplomatic relations” and to exercise “the bulk of foreign affairs powers.”
There consequently remain many areas of foreign policymaking for which there is no directly controlling judicial precedent, such as treaty withdrawal and war powers. In these areas, Congress may continue to exercise what it understands to be its foreign policymaking authorities in light of the Constitution’s text and relevant judicial precedent, such as Youngstown, Dames & Moore, and Zivotofsky II. Such congressional decisions may, in turn, eventually inform courts’ analysis of the constitutional distribution of foreign policy powers.
As Congress determines whether and how to exercise its legislative and oversight authorities in foreign policymaking, it may consider how its decisions to take or not take action may impact courts’ determinations about the scope of the President’s Article II authority in the long term, across administrations. As discussed in this report, Supreme Court precedent makes clear that congressional actions and inactions may factor into courts’ assessment of the contours of independent and exclusive Article II authority. In particular, Supreme Court caselaw suggests that:
Delegations of broad authority to the President in foreign policy may place the President’s claim of authority in Youngstown category one or category two, where the Supreme Court has reviewed presidential actions with a relatively high level of deference. On the other hand, clear statutory restrictions on the President’s authority may place the President’s claim of Article II authority to act in contravention of the statute in category three, where the Court has instructed that presidential actions should be subject to a relatively high level of scrutiny.
Broad delegations of authority in foreign policy may also impact courts’ interpretations of the constitutional meaning of Article II by contributing to historical practice. In particular, the Supreme Court has read broad statutory grants of authority as evincing congressional acquiescence to the President’s claims of authority. Conversely, clear restrictions, and particularly prohibitions, may clarify Congress’s assertions of its authority and, relatedly, assertions that the President does not possess unilateral authority—whether independent or exclusive.
Courts may also consider Congress’s failure to enact legislation as demonstrating congressional acquiescence in a President’s claim of authority.
Additionally, Congress may consider whether it would be desirable for courts to hear challenges to the President’s foreign policy actions on the ground that they exceed the President’s authority. Supreme Court precedent suggests that congressional actions may impact the likelihood that courts would be willing cases regarding separation of powers foreign policymaking. For example, courts may be more likely to find standing if Congress has enacted a statute providing for a private right of action or, in the case of congressional plaintiffs, if Congress or one chamber authorized them to bring suit on its behalf on the ground that its constitutional authority was infringed. Further, the Supreme Court has also suggested that courts should be more willing to hear foreign policy cases involving the President’s refusal to comply with a statutory directive, reasoning that such cases are more likely to be appropriate for judicial resolution rather than to present political questions.
Accordingly, the actions and inactions of Congress in foreign policymaking may have constitutional significance for at least four reasons. First, if a court does not intervene, Congress and the President are the principal governmental interpreters of constitutional meaning of the scope of Article II. Second, congressional actions could impact the likelihood that courts may be willing to hear challenges to Presidents’ assertions of unilateral Article II authority. Third, should a court exercise judicial review, it may consider congressional actions and inactions related to a given presidential foreign policy action in determining how much deference or scrutiny to give to the President’s claim of Article II authority. Finally, a court may consider congressional actions and inactions in response to presidential claims of authority over time in determining constitutional meaning of Article II that is binding on both branches.
Thus, as Congress determines whether and how to exercise its legislative and oversight authorities in foreign policy, it may consider the broader or longer-term potential constitutional implications of a given action or inaction for the scope of the President’s Article II authority. In particular, Congress may consider whether courts might understand a given congressional action or inaction as authorizing the President, acquiescing in or conceding claims of independent or exclusive presidential authority, or prohibiting or otherwise restricting presidential action.
Resources
ebsco.com, “Foreign affairs and policy and the Supreme Court.” By Robert F. Gorman; law,cornell.edu, “ArtIII.S2.C1.9.6 Foreign Affairs as a Political Question.”; usconstitution.net, “Can Judges Control the Executive’s Legitimate Power?” By Eleanor Stratton; constitutioncenter.org, “Explaining the president’s foreign affairs powers.” By Scott Bomboy; supremecourt.gov, “The Court and Constitutional Interpretation.” By Chief Justice Charles Evans Hughes; congress.gov, “Congress and the Scope of the President’s Article II Foreign Policy Authorities.”;
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