:s u e VOL. 62, 0.8 NEWS LETTER University of Virginia • Institute ofGovernment MARCH 1986 FOREIGN POLICY UNDER THE CONSTITUTION: -------- SHOULD HE P ESIDENT'S POWE E CU E? by Norman A. Graebner Mr. Graebner is Randolph P. Compton to make foreign policy. Throughout the pres­ Despite such constitutional limitations on Professor of History at the University of ent century successive presidents have estab­ the presidential exercise of both the treaty­ Virginia. lished a constitutional monopoly in the area making and - the war-making powers, the This News Letter is supported in part by ofexternal relations, including the negotiating executive-as official spokesman of the na­ a grant from the National Endowment for and concluding of treaties. tion, as commander-in-chief of the armed the Humanities. In practice executive primacy has applied forces, and as head of the nation's bureau­ as much to war-making as to policy formu­ cratic structure-commanded from the be­ Official claims to executive primacy in lation. Article II of the Constitution assigned ginning both the authority and the special foreign affairs have kept pace with the ex­ the president the role of "Commander-in­ knowledge required to dominate the decision­ pansion of the country's international role in Chief of the Army and Navy of the United making process in the field of foreign and the twentieth century. The assumption that States." That article also gave the president, military affairs. In practice two special cir­ the control of external relations adheres to with the "Advice and Consent of the Senate," cumstances could contribute to the president's the president is based on the sentence in the power to make treaties, "provided that war-making power: where the threat was too Article II of the Constitution, which reads: two-thirds of the Senators present concur." trivial to require congressional approval and "The executive Power shall be vested in a Article I gave Congress the power to declare where the threat was too immediate to permit President of the United States of America." war and the House of Representatives control time for congressional consent. Even in the As early as 1906 Senator John Spooner of of the purse-the highest power of all. Wisconsin, in det nding President Theodore Roosevelt's Caribbean policies, asserted that the "executive" power in the Constitution gave the president exclusive control of almost every aspect of foreign affairs. "[S]o far as the conduct of our foreign relations is con­ CALENDAR OF UPCOMING EVENTS cerned," he declared, "the President has the absolute and uncontrolled and uncontrollable April 21-22: Virginia Circuit Court Clerks' Conference at the Fort Magruder Inn authority."That view, the senator added, had in Williamsburg. For more information or to register, call Robert N. Baldwin, executive been conceded by all authorities from the secretary, Supreme Court of Virginia, (804) 786-6455. beginning of the United States government. In the noted Supreme Court decision of April 24-26: Local Government Attorneys ofVirginia Spring Conference at Wmtergreen. The program will include sessions on Municipal Bond Issues, Pornography and Local United States v. Curtiss- Wright Export Cor­ Enforcement, and AIDS and the Public Sector. Governor Gerald Baliles will be the poration (1936) Justice George Sutherland keynote speaker. For more information, call Sandra Wiley, LGA's administrative officer, observed that the president is "the sole organ at the Institute of Government, (804) 924-3396. of the federal government in the field of international relations." Although 1ustice May 9-10: Jefferson Meetings on the Constitution in Alexandria and Charlottesville. Sutherland did not define the word "organ," See box on inside page for more information. it seems clear that the Court reserved for the executive the sole power to communicate with foreign governments, if not the sole authority --- 46 nineteenth century, the president on numer­ commitments to actions taken by both the war-making powers defied the intentions of ous occasions employed the armed forces executive and legislative branches, the admin­ the makers of the Constitution. against pirates, Indians, border ruffians, and istration replied: rioters without asking the approval of Con­ As Commander-in-Chief the President gress. When the British struck Washington INTENTIONS OF THE MAKERS has the sole authority to command our in 1814, President James Madison had no armed forces, whether they are in or Those who gathered at Philadelphia in time to call Congress into session to determine outside the United States, and, al- May 1787 to frame the Constitution of the a proper national response. These extreme though reasonable men may differ as United States faced the dual task of dividing conditions where the president's war-making to the circumstances in which he should power over foreign affairs both between the power was beyond challenge continued into do so, the President has the constitu- federal government and the states and be- the twentieth century. But between these tional power to send U.S. military tween the executive and legislative branches extremes two bodies ofconstitutional author­ forces abroad without specific Con- ofgovernment. Experience had demonstrated ity came into conflict-the president's power gressional approval. the dangers of state interference in matters as commander-in-chief and the Congress's of foreign commerce and the enforcement of power to declare war and to set the level of In denying that he required any congres- treaties; thus the delegates readily granted the expenditure. Normally the refusal of Con­ sional authorization for his invasion of Cam- federal government a monopoly over the gress to declare war would be sufficient to bodia in 1970, President Nixon declared that country's external affairs. The debate over the prevent or at least terminate any military he was meeting "his responsibility as Com- distribution of the war and treaty powers engagement. mander-in-Chief of our armed forces to take between the executive and the Can ress was n ou e -ly e claims 0 execu lve au­ the-action I con-sider .rre-cessa~-rrefend-the--Iong, arduous, and often bitter. thority over war-making reached their ulti­ security of our Amencan men. Throughout U d hArt· 1 f C .. d t· 11 . n er t e IC es 0 onle era Ion a mate extravagance during the Vietnam War. the VIetnam War executive branch lawyers f t I . 1 1" 1" e e As that war, never declared, faced ever­ stressed the vagueness of the Constitution on pOdw~rsd? .glovernmen -t egdls. a ltvh , eCxecu IV , . .. an JU ICla -were cen ere In e ongress. increasing opposition in Congress, adminis­ questions of foreIgn pohcy and war powers; Th t· ·tt f C . 0 .. e execu lve comml ees 0 ongress In n tration spokesmen insisted that the president's they InSIsted that the question of authonty bI" h d 1" b h 11 ~ ranc Pow command of the armed forces eliminated the to act or to restrain be left to the requirements way esta. IS ahn ehxecu Ive C ; a L ­ ers remalned In t e ands 0 f ongress. ong necessity for congressional approval of the of the moment. Katzenbach would entrust b f h C t·t t· 1 C t· t .. ".. d e ore t eons 1 u lona onven Ion me , war. Leonard C. Meeker, legal adviser to the the deCISIon to the Instinct of the nation an J h J th S t f F . Af'.C· S . .. ·b·l· " 0 nay, e ecre ary or orelgn laIr, State Department, declared in March 1966: ItS leaders for pohtical responSI llty. d t d . t· f the govern ~ractic~. .. avoca e a reorganlza Ion 0 - There can be no question in present In those who VIewed the C?nstitution ment that would separate the executive from as ImpreCIse argued that the preSIdent must the legislative functions, assigning to each circumstances of the President's au­ unencu~bered t~ thority to commit U.S. forces to the be left use the armed forces de artment those it would be best constituted and to ~ommlt the .Unlted States as he saw toPerform. Ja wrote to Thomas Jefferson defense of South Vietnam. The grant fit, seekIng congressIonal approval only when PA t 18 Y1786. of authority to the President in Article It.appeare d usefl·u or convenIent. on ugus ,. II of the Constitution extends to the To vest legislative, judicial, and exec­ actions of the United States currently It was not strange that writers and war utive powers in one and the same body undertaken in Vietnam. critics accused the executive of circumventing the Constitution and enlarging on practices of men, and that, too, in a body daily Arguing for presidential primacy in matters always regarded questionable. Speaking at changing its members, can never be of war, Under Secretary of State Nicholas Oxford University shortly after his November wise. In my opinion, these three great Katzenbach informed the Senate Foreign defeat in 1972, Senator George McGovern departments of sovereignty should be Relations Committee in August 1967 that declared characteristically: "I am convinced forever separated, and so distributed "the expression of declaring war is one that that the United States is closer to one-man as to serve as checks on each other. has become outmoded in the international rule than at any time in our history-and When the Constitutional Convention be­ arena. " Under modern conditions, he said, this paradoxically by a President who is not gan its deliberations in late May, the Virginia it was for the president alone to determine popular." Similarly, historian Arthur M. delegation submitted the Virginia Plan; its when and how the armed forces of the United Schlesinger, Jr.