Foreign Policy Powers: The Constitution's Distribution

The US Constitution outlines the distribution of responsibility for foreign policy between the President and Congress. The Constitution gives the President the power to make treaties, nominate ambassadors, and lead the executive branch, with the advice and consent of the Senate. The President also acts as Commander-in-Chief of the Armed Forces and is responsible for receiving foreign ambassadors and ministers. The Senate has the power to ratify treaties and approve ambassadorial nominations and high-ranking executive officials. The Constitution also gives Congress the power to declare war and appropriate government funds, including foreign assistance, which is considered its greatest authority in foreign policy. The distribution of responsibilities between the President and Congress has evolved over time, with the President generally taking primacy in conducting foreign policy since World War II.

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The President's role in foreign policy

The US Constitution, which came into effect in 1789, established a federal government with more specific powers, including those related to conducting relations with foreign governments. While the Constitution does not stipulate the existence of departments within the executive branch, Congress passed legislation creating the Department of Foreign Affairs (renamed the Department of State) in 1789.

The President is the federal official primarily responsible for relations with foreign nations. They appoint ambassadors, ministers, and consuls (subject to Senate confirmation) and receive foreign ambassadors and other public officials. With the Secretary of State, the President manages all official contacts with foreign governments. The President may also appoint special representatives, envoys, and advisers for top-level foreign policy issues.

The President can control the formation and communication of foreign policy and direct the nation's diplomatic corps. They may negotiate treaties with other nations, which become binding when approved by two-thirds of the Senate. The President may also negotiate executive agreements with foreign powers that are not subject to Senate confirmation.

The President is the commander-in-chief of the US Armed Forces and has plenary power to launch, direct and supervise military operations, order or authorize the deployment of troops, and form military policy with the Department of Defense and Homeland Security. They are responsible for the protection of Americans abroad and of foreign nationals in the US.

The President may also direct officials on how to interpret the law (subject to judicial review) and on staffing and personnel decisions. They can sign or veto legislation and ask for the written opinion of their Cabinet.

Congress's power to declare war

The US Constitution, which came into effect in 1789, established a federal government with more specific powers, including those related to conducting relations with foreign governments. The Constitution distributes the responsibility for foreign policy by dividing federal authority between the Legislative, Judicial, and Executive branches of government.

The Legislative branch, or Congress, has the power to declare war. This is based on the proposition that all large questions of foreign policy fall within the ambit of Congress, by virtue of its power "to declare war". This power is derived from the separation of the colonies from Great Britain, where the powers of external sovereignty passed from the Crown to the colonies in their collective and corporate capacity as the United States of America.

The Continental Congress, composed of delegates from the thirteen colonies, exercised the powers of war and peace, raised an army, created a navy, and adopted the Declaration of Independence. This established the precedent that the rights and powers of war and peace are component parts of the supreme power vested in the government.

In McCulloch v. Maryland, Chief Justice Marshall took the view that the power to wage war is implied from the power to declare it. He argued that the power to declare war necessarily implies the powers of raising and supporting armies and providing and maintaining a navy to prosecute the war.

Congress has exercised its constitutional power to declare war on several occasions, including in 1913 when President Wilson refused to recognize the government of Mexico, contributing to its downfall. Another example is the recognition of the Union of Soviet Socialist Republics in 1933, which was an exclusively presidential act.

The Executive branch's responsibilities

The US Constitution, which came into effect in 1789, established a federal government with more specific powers, including those related to conducting relations with foreign governments. The Constitution places many of the responsibilities for foreign affairs under the authority of the executive branch, although some powers, such as treaty ratification, are the responsibility of the legislative branch.

The executive branch's role in foreign policy has evolved over time, with the President's primacy in conducting foreign policy becoming more pronounced since World War II. The executive branch's power to recognise foreign governments was demonstrated in the recognition of the Union of Soviet Socialist Republics in 1933 and the non-recognition of the Japanese puppet state of Manchukuo in 1932. Similarly, the non-recognition of the Chinese Communist Government by the Truman Administration, followed by President Nixon's de facto recognition in 1972, was an important aspect of US foreign policy during the Cold War.

The executive branch's foreign policy decisions are influenced by the legislative branch's "power of the purse," as Congress has the sole power to appropriate government monies, including foreign assistance. This power allows Congress to exert influence over the executive branch by determining how money can be used in the context of foreign policy.

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Treaty ratification

The US Constitution, which came into effect in 1789, established a federal government with more specific powers, including those related to conducting relations with foreign governments. The framers of the Constitution had originally imagined a weak presidency and a strong legislature, divided into the House of Representatives and the Senate.

The Constitution distributes the responsibility for foreign policy between the legislative and executive branches of the government. While many of the responsibilities for foreign affairs fell under the authority of the executive branch, important powers such as treaty ratification were kept as the responsibility of the legislative branch.

The legislative branch's power to ratify treaties is a significant check on the executive branch in the conduct of foreign policy. The Senate, in particular, has been tasked with the responsibility of ratifying treaties. This power of the Senate to ratify treaties is an important tool in shaping US foreign policy. For example, in 1794, the Senate had the opportunity to accept or reject the controversial treaty with Great Britain negotiated by John Jay.

The recognition of foreign sovereigns and their territorial bounds is another aspect of foreign policy that involves both the legislative and executive branches. While the executive branch retains exclusive authority over the recognition of foreign sovereigns, Congress, through its enumerated powers in foreign affairs, can legislate on matters that precede and follow a presidential act of recognition. For instance, in the case of Texas, Hayti, and Liberia, the President invoked the judgment and cooperation of Congress before recognizing the new state and appointing a minister.

The recognition of foreign sovereigns

The Executive branch, led by the President, holds significant authority in recognising foreign sovereigns and their territorial bounds. The Supreme Court affirmed in Zivotofsky v. Kerry that the Executive retains exclusive power in this area. This means that the President has the sole authority to recognise or refuse to recognise foreign governments, as exemplified by President Woodrow Wilson's non-recognition of the Provisional President of Mexico in 1913, contributing to the latter's downfall.

However, it is important to note that Congress also has a role in foreign affairs, as outlined in the Constitution. While the Executive branch has the power to recognise foreign sovereigns, Congress can legislate on matters preceding and following such recognition. This includes the power to declare war, as well as the ratification of treaties, which falls under the legislative branch's authority.

The historical practice of seeking Congressional judgment and cooperation in recognising new states, as seen in the cases of Texas, Hayti, Liberia, and the Spanish-American republics, further highlights the shared responsibility between the Executive and Legislative branches in foreign policy matters.

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