Presidential Power in Foreign Affairs

From its inception, the institution and role of the American presidency in conducting foreign affairs has been one of ambiguity. The founders created a system of governance in which the presidency was one branch of an intricate three branch federal government that also consisted of a legislative and judicial branch. The doctrine which served as the driving force behind its creation was famously titled “separation of powers”; a doctrine that enables each branch to be separate in its functions, but also enables each branch to provide a check on another branch’s functions. The appropriate role of the presidency in foreign affairs is an age-old historical question that establishes its relevance once again in lieu of the recent state of affairs around the world. The role of the presidency in foreign affairs should undoubtedly be one which protects the national interests of our people. What is written in the Constitution does not and should not entail the totality of presidential power, and it very well could violate the essential principle the president assumes by taking power; that essential principle is to ensure the safety and security of our country’s citizens.

The notion that the presidency must only derive its absolute power from the existing language of the Constitution or from legislation is incredibly naïve and dangerous. One example of this reasoning can be observed from Justice Hugo Black in the Youngstown Sheet and Tube Co. v. Sawyer Supreme Court case in 1952. Justice Black argued that President Truman did not have the right to place the steel mills under governmental control because the power to make that order was not granted from Congress or expressly written in the Constitution. Even though Truman had argued that it was a necessity for the production of war materials to equip our soldiers with the supplies they needed in battle, it was of no importance to Justice Black. Here we can see an obvious dilemma amongst the belief that any power possessed by our president must comply with express consent from Congress or the Constitution. But as this universal principle may sound justified and reasonable, the circumstances surrounding every incident regarding American foreign policy can never be foreseen. Therefore, it is imperative that we must endow implied powers to the president which allow for some discretionary action upon a matter regarding national security.

Another reason that this universal principle of presidential power is troubling is because even upon its premise, that power must be expressly written in the Constitution or legislated from Congress, there still inevitably will be room for interpreting the language of both. For example, in the Youngstown case mentioned earlier, the dissenting justices based their opinion on the power the Constitution gave to the president, while the concurring justices invoked the presidential power in the Constitution as well. Even when a justice outlines what they consider as a universal principle for the president’s role in foreign affairs, there is still an intrinsic, subjective and separate matter for interpreting the legislation and Constitution itself. As you can see, invoking universality of presidential power amongst those two components, the Congress and the Constitution, handcuffs the presidency to effectively ensure safety and security to its citizens, and still provides no established dictation of presidential power.

The opinion delivered by Justice Sutherland in the U.S. v. Curtiss-Wright Export Corp. is almost directly on par with how I view the correct role for the presidency in foreign affairs matters. Justice Sutherland argued that the President has implied powers, powers not enumerated within the Constitution, regarding external affairs but not internal affairs. He says that the president has more knowledge than Congress on the conditions of foreign affairs which would enable the president a greater ability than Congress to conduct interaction in the global arena. During the opinion, Justice Sutherland seems to understand that there often is an instance where the Constitution does not permit for every circumstance, therefore it be necessary to ascertain a realm of power not expressly guaranteed by the president. This power, however, is limited to only foreign affairs, and not domestic affairs.

The other opinion for which I base my opinion on is that of Justice Jackson, in the 1952 Youngstown case. He carefully outlines three separate scenarios which detail the boundaries of presidential powers. In his third scenario of presidential power, Justice Jackson argues that “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” This essentially says that when the president asserts his authority to use of force which is not granted to him by Congress or expressly in the Constitution, then he must be carefully watched by not only the other branches of our government, but also by the people within that government.

In 1862, an important Supreme Court decision was delivered that ultimately altered the division of power for authorizing force abroad. The Prize Cases introduced an arduous challenge for the court, essentially because neither the Constitution nor Congress had ‘expressly’ written what was supposed to be done in the circumstances that were pending. President Lincoln ordered a naval blockade on the Southern ports before the Civil War began, and Congress had not yet declared war. Hence, Lincoln seized ships entering the port, and the ships owners took this to the Supreme Court arguing that the absence if Congressional declaration of war, the President had no right to issue a blockade. Justice Grier delivered the majority opinion and argued in favor of Lincoln exercising his right to use force. This was the first time in our nation’s history we went to war without a declaration from Congress, and throughout the twentieth-century we would observe more wars being waged without any Congressional declaration of war.

Although it is true that Article I from the US Constitution says that “Congress shall have the power to declare war,” this does not specifically say that the president cannot go to war without a declaration of war. Furthermore, the Constitution specifically gives power to the president who “shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into actual Service of the United States.” From this textual understanding of the Constitution, we can infer that the president not only has authority to go to war because Congress has not restricted him from doing so, but also because it explicitly states that the president has command over the military, and using force is a discretionary measure that be up to the president. In an instance where it may seem like the president overstepped his authority upon such matters of engaged conflict abroad, then it is the duty of Congress and the Supreme Court to provide a check upon the institution of the presidency. The authority to use force and commit US soldiers abroad should unquestionably be a decision initially up to the President, and if it deemed inappropriate or abusive, then Congress or the courts should intervene revoking this authority from the president.

The deepest regret I reserve upon the idea that the president possesses no implied or inherent powers not within the Constitution, is that it fundamentally ignores the progression of ideas and of the changing nature of the world. To use the old cliché, the Constitution should be a living, breathing document, not a stagnate, irrelevant document. The justifications for the presidential use of foreign power without consent from Congress or the Constitution are present everyday. That is to say, the changing nature of the twentieth-century, and the closer interconnectedness of nation-states in trade, travel, and warfare has produced a necessity of American foreign policy to be quick, decisive, and effective. An individual cannot concede to be an individual of reason and competence if in fact they would deem it improper for President Roosevelt, if he had prior knowledge of Pearl Harbor, to stop the attack before the attack takes place. This idea is founded in philosophical principles. According to Justice Black’s theory, if President Bush had known about 9/11 prior to its occurrence, then he would not be authorized to shut down the World Trade Center activities for that day, simply because that power is not in the Constitution nor did Congress give him authority. As I stated earlier, this view is naïve and dangerous.

This analogy of the WTC collapse and attack brings us to today’s heated struggle over the president’s ability to protect national security. The proper decision regarding the external affairs of nations should not just solely rest on the shoulders of the presidency, nor can it solely rest on Congress. However, there is a distinctive gray area in which the president should have mobility in conducting affairs abroad using his mandate from the election of the republic, and his capacity of knowledge from his cabinet members. If we look back through history, we find that although Congress often times did not declare war, they nevertheless passed resolutions which granted affirmation to the president to conduct a war if necessary. Yet, even swith these Congressional Resolutions, the public and others condemn the “abuse” of power by the presidency. How can one call something an abuse of power when that power was granted to the president from Congress? Was it not the Authorization of Military Force (AUMF) which Congress passed that gave President Bush all the necessary means to fight terrorism that seemed fit for him? It is in my assertion that Bush did not even need a Congressional Resolution for fighting a hybrid enemy of war; one that adheres to no rules and establishes no guise under a nation-state. Granted, citing Justice Jackson rationale, the Congress should scrutinize what the president does, as should the courts. However, citing Grier’s rationale, the president has implied powers in external affairs that transcend any absolutist theory or universal standard for expression of foreign power.

If there is one universal truth available it is that there should be no fixed definition of the presidential power in foreign affairs. It should be subjective to the circumstances pending, and should allow for the natural changes that inevitably take place in a rapidly developing world. The institution of the presidency should have implied power that overreach Congress and the Constitution, so long that it be inspected by our other branches of government after the fact. The national security and subsistence of our state depends upon a mobile and flexible presidency in regards to national affairs.