Foreign Policy: What Does The Constitution Really Say?

The US Constitution does contain provisions regarding foreign policy. Article II, Section 2 of the Constitution gives the President the power to make treaties with the advice and consent of the Senate. The President also has the power to appoint ambassadors, ministers, and consuls, with Senate approval. However, the Legislative Branch retains the power to declare war and appropriate funds. The Supreme Court has also ruled on cases involving foreign policy, such as Zivotofsky v. Kerry, where it was held that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.

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The President's role in foreign policy

The US Constitution outlines the President's role in foreign policy, including their responsibility for directing the military and their power to sign or veto federal legislation. The President also has the power to appoint ambassadors, propose and negotiate agreements with other countries, and direct the country's foreign aid industry and bureaucracy.

The Reception Clause has been interpreted to imply that the President has broad power over matters of foreign policy. This includes the authority to grant recognition to foreign governments and their territorial bounds. For example, the recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act. Additionally, the President is the only channel of communication between the United States and foreign nations, and foreign agents are not allowed to question or interpose between the President and any other branch of the government.

While the President has significant responsibilities in foreign policy, other branches of the government, such as Congress, also play a role. Congress has the power to declare war and pass legislation related to foreign affairs. The Secretary of State also has a role in foreign policy, as they can approve new foreign assistance programs and obligations.

The balance of power between the President and other branches of the government in foreign policy has shifted over time, with some arguing that the modern presidency has become too powerful and unchecked.

Treaties and alliances

The Constitution expressly prohibits powers to the States, declaring that "no State shall enter into any treaty, alliance, or confederation". This prohibition has been interpreted to mean that states cannot deal with matters pertaining to international relations. For example, in Holmes v. Jennison, it was ruled that a state could not deliver a fugitive from justice to a foreign state.

However, the Constitution does not prohibit the Federal Government from forming treaties and alliances. In fact, the President has been regarded as the "only channel of communication between the United States and foreign nations". The recognition of foreign sovereigns and their territorial bounds is also an exclusive power of the Executive.

The conduct of foreign relations and the formation of treaties and alliances have been a point of contention between the Executive and Congress. While the President has historically acted independently in recognizing foreign governments, Congress has also asserted its power to declare war and state its purpose. This dynamic has resulted in a complex interplay between the two branches in shaping foreign policy.

In conclusion, while the Constitution prohibits states from forming treaties and alliances, it does not explicitly delegate this power to the Federal Government. Instead, the Executive and Congress have both played roles in conducting foreign relations, with the President taking the lead in recognition of foreign governments and Congress exercising its power to declare war.

Recognition of foreign sovereigns

The recognition of foreign sovereigns is a critical aspect of foreign policy, and the US Constitution outlines specific provisions and historical precedents regarding this matter.

The recognition of foreign sovereigns is a prerogative that has traditionally rested with the executive branch, specifically the President. The Zivotofsky v. Kerry case affirmed that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds. This decision was based on an interpretation of the Constitution, particularly the Reception Clause, which mandates that the President "receive Ambassadors and other public Ministers." The act of receiving ambassadors from a foreign government is considered tantamount to recognizing its sovereignty.

Historically, there have been instances where the President has sought the judgment and cooperation of Congress before recognizing a new state, such as in the case of the Spanish-American republics, Texas, Hayti, and Liberia. However, in many other cases, the recognition was given solely by the Executive. The Supreme Court's decision in Zivotofsky v. Kerry acknowledged that while Congress has enumerated powers in foreign affairs, it does not share the recognition power with the President.

The concept of recognition is essential in international law and relations. Recognition affirms a country's status as a sovereign state, subject to international law, and can have significant implications for statehood and diplomatic relations. The constitutive theory of statehood, as explained by international lawyers like Hersch Lauterpacht, suggests that recognition is a discretionary act by which an existing state accepts another entity as a state. While there are no binding criteria for statehood, factors such as territory, population, government, and the capacity to enter into relations with other states are often considered.

The conduct of foreign relations and the recognition of foreign sovereigns have been subject to interpretation and debate throughout US history. While the Constitution does not explicitly mention the recognition of foreign governments in the enumerated powers of either Congress or the President, historical precedents and court decisions have shaped the understanding of this aspect of foreign policy.

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Powers denied to states

The US Constitution does contain provisions that relate to foreign policy. Article I, Section 10 of the US Constitution, outlines several powers that are denied to the states in order to maintain federal authority and national unity. These restrictions were designed to prevent states from acting independently and undermining the national government's power.

The specific powers denied to the states include:

• States cannot enter into any Treaty, Alliance, or Confederation with foreign countries or other states. This restriction was relied on during the Civil War, when the Court held that the Confederation formed by the seceding states had no legal existence.
• States cannot coin money. This restriction was intended to prevent economic instability between states and promote a unified national policy in critical areas like currency.
• States cannot maintain their own armies for engagement in war.
• States cannot grant titles of nobility. This restriction ensures that all citizens have equal standing under the law, preventing any state from establishing a hierarchy similar to monarchies or aristocracies.
• States cannot pass laws that retroactively affect legal contracts (ex post facto laws) or those that single out an individual for punishment without a trial (bills of attainder).
• States cannot grant letters of marque and reprisal.
• States cannot emit bills of credit.
• States cannot make anything but gold and silver coin a tender in payment of debts.

In addition to these express restrictions, the US Constitution also implies certain limitations on the power of the states to deal with matters bearing upon international relations. For example, in Holmes v. Jennison, it was held that a state had no power to deliver up a fugitive from justice to a foreign state. Similarly, in United States v. California, the Court held that the Federal Government had paramount rights and power over the three-mile marginal belt along the California coast, as it might become the subject of international dispute.

While the Constitution grants Congress the power to declare war, the recognition of foreign sovereigns and their territorial bounds has been held to be the exclusive domain of the Executive. In Zivotofsky v. Kerry, the Supreme Court held that while Congress may legislate on matters preceding and following a presidential act of recognition, the Executive retains the sole authority to recognise foreign sovereigns.

The Supreme Court's role in foreign policy

The US Constitution designates the president as the primary actor in foreign relations, granting powers such as treaty negotiation and military command. The president is also responsible for conducting foreign relations and, as commander-in-chief, for making war. The Supreme Court has historically upheld the premise that the president possesses extensive powers in foreign affairs, supporting this through various rulings that have reinforced executive authority.

The Supreme Court typically defers to the political branches of the government in the area of foreign policymaking. It often refrains from intervening in disputes between Congress and the president regarding foreign policy, labelling many of these issues as political questions beyond its jurisdiction. 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.

The dynamic between foreign affairs, policy, and the Supreme Court reflects ongoing tensions and balances of power within the US governmental framework. While the Constitution does not definitively state that the president is the primary constitutional authority in foreign affairs, both the president and Congress are invested with certain powers relative to the making and conduct of foreign policy. The Supreme Court arbitrates in disputes between the political branches.

The Supreme Court's rulings can have implications for US foreign policy, even if they do not directly address it. For example, the Supreme Court's decision to overturn Roe v. Wade did not directly address foreign policy, but it did have implications for US engagement with global health, as it affected the stances of Republican and Democratic administrations on using US global health funding for reproductive health services.

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