Michigan Law Review Volume 102 Issue 4 2004 Executive Power Essentialism and Foreign Affairs Curtis A. Bradley University of Virginia School of Law Martin S. Flaherty Fordham Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Legal History Commons, and the President/Executive Department Commons Recommended Citation Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004). Available at: https://repository.law.umich.edu/mlr/vol102/iss4/1 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. EXECUTIVE POWER ESSENTIALISM AND FOREIGN AFFAIRS Curtis A. Bradley* and Martin S. Flaherty** TABLE OF CONTENTS INTRODUCTION ........................................................................................ 546 I. TEXTUAL UNCERTAINTY .............. ........ ......... ....... ................... 553 II. THEORY AND HISTORY PRIOR TO THE FEDERAL CONVENTION . ...... ........... ................. .... ................. ..................... 560 A. Seventeenth- and Eighteenth-Century Political Theory ..... 560 B. State Constitutional Experience ............. ..................... ........ 571 C. Lessons from the Continental Congress ......... .......... .......... 585 Ill. THE CONSTITUTIONAL FOUNDING . ............ ......................... ..... 592 A. Th e Federal Convention ........................... .......... ......... ...... 592 B. Th e Federalist Papers ..... ........ ..... ......... ........ ..................... 602 C. State Ratification Debates .............. ........ .............................. 604 IV. THE WASHINGTON ADMINISTRATION ...... ............. ............... .. 626 A. The Senate's Role in Treatymaking ............................ ..... .... 626 1. Understanding of the Founders . .............. .... ...... .... ....... 627 2. Practices of the Washington Administration ................. 631 B. Washington's Control of Diplomacy ................................... 636 1. Oversight of the Old Department of Foreign Affairs ... 637 2. Creation of the State Department . ........ .......................... 641 3. Management of the Diplomatic Corps ... ....... ....... ......... 644 4. Th e Diplomatic Salaries Dispute ............... .................... 648 C. Th e Removal Debate ............................................................. 656 D. Reception and Recall of Genet ..................... ....................... 664 * Professor of Law, University of Virginia School of Law. B.A. 1985, University of Colorado; J.D. 1988, Harvard. - Ed. In January 2004,after work on this Article had largely been completed, Professor Bradley began serving in a one-year position as Counselor on International Law at the U.S. Department of State. The views expressed in this Article are not intended to reflect the views of either the Department of State or the U.S. government. ** Visiting Professor, Program in Law and Public Affairs, Woodrow Wilson School of Public and International Affairs, Princeton University; Professor of Law & Co-Director, Joseph R. Crowley Program in International Human Rights, Fordham Law School. B.A. 1981, Princeton; M.A. 1982, Yale; M. Phil. 1987, Yale; J.D. 1988, Columbia. - Ed. For their helpful comments and suggestions, we thank Kathryn Bradley, Barry Friedman, Abner Greene, John Harrison, Thomas Lee, Caleb Nelson, William Nelson, William Treanor, participants in the NYU Legal History Colloquium, and participants in faculty workshops at the Duke, Fordham, Georgetown, Houston, and Virginia law schools. We would also like to thank Robert Scheef for his excellent research assistance. 545 546 Michigan Law Review [Vol. 102:545 1. Chronology of Key Events and Statements ................... 665 2. Assessment ....................................................................... 676 E. The Pacificus-Helvidius Debate ........................................... 679 CONCLUSION···························································································· 687 INTRODUCTION Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity.1 It holds no less true for modern constitutions, including the Constitution of the United States. 2 Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that "The executive Power shall be vested in a President of the United States of America,"3 stands in apparent contrast with the Article I Vesting Clause, which provides that "All legislative Powers herein granted shall be vested in a Congress of the United States ... "4 This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President a broad array of residual powers not specified in the remainder of Article II. We will call this claim the "Vesting Clause Thesis." The Vesting Clause Thesis was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington's 1793 Neutrality Proclamation.5 The Thesis has had a checkered career 1. See ARISTOTLE, THEPOLITICS 346 (T. A. Sinclair trans., rev. ed. 1981) ("The tyrant is also very ready to make war; for this keeps his subjects occupied and in continued need of a leader."); PLATO, THE REPUBLIC, in 2 CAMBRIDGE LIBRARY OF LAW CLASSICS 27, 291 (Henry Davis trans. 1901) (describing the incentives tyrants have to make war abroad to maintain power at home). 2. A number of constitutional Founders observed that leaders of other countries had often initiated war for personal reasons. See, e.g. , THE FEDERALIST No. 4, at 46 (John Jay) (Clinton Rossiter ed., 1961) ("[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory ...."); JAMES MADISON, LETTERS OF HELVIDIUS No. 4 (Sept. 14, 1793), reprinted in 15 THE PAPERS OF JAMES MADISON 108 (Thomas A. Mason et al. eds., 1985) [hereinafter LETTERS OF HELVIDIUS] ("War is in fact the true nurse of executive aggrandizement."). See generally William Michael Treanor, Fame, the Fo unding, and the Power to Declare War, 82 CORNELL L. REV. 695 (1997). 3. U.S. CONST. art. II, § 1, cl. 1. 4. U.S. CONST. art. I, § 1, cl. 1 (emphasis added). 5. See ALEXANDER HAMILTON, LETTERS OF PACIFICUS No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF ALEXANDER HAMILTON 33 (Harold C. Syrett & Jacob E. Cooke eds., 1969) [hereinafter LETTERS OF PACIFICUS]; see also infra Part IV.E. February 2004] Executive Po wer Essentialism and Fo reign Affa irs 547 in constitutional law and interpretation ever since. One ostensible high point came in Myers v. United States,6 in which a majority of the Supreme Court relied on the Vesting Clause Thesis in holding that the President had an exclusive power of removing executive officers.7 Even in Myers, however, the Court's reliance on the Vesting Clause Thesis was minimal, and the Court's analysis and holding have since been severely qualified.8 An offsetting low point famously occurred in the steel seizure case, Youngstown Sheet & Tube Co. v. Sawyer,9 in which the Court rejected President Truman's broad claim of executive power, a claim that was based in part on the Article II Vesting Clause.10 Although the majority in Yo ungstown did not specifically address the Vesting Clause Thesis, Justice Jackson addressed it in his influential concurrence and repudiated it.11 6. 272 U.S. 52 (1926). 7. See id. at 118. 8. The Vesting Clause Thesis takes up only one paragraph of the Court's long opinion. Much of the opinion is focused instead on a 1789 debate in the House of Representatives over the President's removal power. See id. at 111-18, 119-39, 174-75. As we discuss below, those who supported a presidential removal power in that debate typically relied on the Appointments Clause (which gives the President the power to appoint various officials with the advice and consent of the Senate) or the Take Care Clause (which states that the President "shall take Care that the Laws be faithfully executed") rather than the Vesting Clause. See infra Part IV.C. Three Justices - Holmes, McReynolds, and Brandeis - dissented in Myers. Justice McReynolds's dissent argues, among other things, that the Vesting Clause Thesis is unsupported by Founding history. See Myers, 272 U.S. at 193, 228- 37 (McReynolds, J., dissenting). In a subsequent decision, Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Court upheld a statute restricting the power of the President to remove a Commissioner of the Federal Trade Commission. The Court in Humphrey's Executor noted that the only point actually decided in Myers was that "the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required