Foreign Policy: Where In The Constitution?

Foreign policy has been a topic of debate since the early days of the Republic, with the question of where the Constitution lodges the power to determine the foreign relations of the United States being a persistent one. The Constitution of 1789, which aimed to address the shortcomings of the Articles of Confederation, gave significantly more responsibility for foreign affairs to the Federal Government. Article II, Section 2 of the Constitution grants the President the power to make treaties with the advice and consent of the Senate, with two-thirds of Senators needing to approve any treaty negotiated by the Executive Branch. 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 conduct of foreign relations and the recognition of foreign sovereigns have been a matter of debate between the Executive and Legislative branches, with both claiming authority in this area.

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The President's role in foreign policy

While the President's power in foreign affairs is expansive, it is not without checks and balances. Congress, for example, has ample power to legislate on foreign affairs and can institute a trade embargo, declare war, or refuse to appropriate funds for an embassy in a recognised country. Additionally, the Supreme Court has weighed in on the division of power between the President and Congress in matters of foreign policy, acknowledging that the President's power over recognition is exclusive, but that Congress also has a role to play.

Historically, there have been debates over the extent of presidential power in foreign policy. For instance, Madison argued during the outbreak of war between France and Great Britain in 1793 that all large questions of foreign policy fell within the ambit of Congress due to its power to declare war. On the other hand, Jefferson asserted that the President was the only channel of communication between the United States and foreign nations, and that foreign agents were to consider the President's communications as the expression of the nation.

In practice, the degree of leadership the President can exert in foreign policy depends on the circumstances, and their formal powers are considered modest. Nonetheless, the President's role as chief diplomat and commander-in-chief grants them significant influence in shaping and administering the nation's foreign policy.

Congress's power to declare war

The US Constitution grants Congress the power to declare war. This is known as the Declare War Clause, and it is a central element of Congress's war powers. The Declare War Clause is outlined in Article I, Section 8, Clause 11 of the Constitution, which states that "The Congress shall have Power ... [t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water".

The inclusion of the Declare War Clause in the Constitution was intended to improve the United States' ability to ensure its peace and security through military protection. The Framers of the Constitution, who drafted the document in Philadelphia in 1787, sought to address the weaknesses of the existing confederation and establish a stronger union.

The Declare War Clause has been interpreted and applied in various ways throughout US history. In the early post-ratification period, many key founders, including Alexander Hamilton, George Washington, and James Madison, emphasised the importance of the Clause as a limit on presidential power. They believed that Congress's approval was necessary for any significant use of military force, as evidenced by the War of 1812 and other early conflicts.

However, in modern times, there have been several instances where presidents have used military force without formal declarations of war or express consent from Congress. This ambiguity has led to ongoing debates about the interpretation and scope of the Declare War Clause, particularly in relation to the president's war powers granted under Article II of the Constitution.

The Supreme Court has observed that the Declare War Clause confers broad authority upon Congress to pursue the war effort. This includes the power to prosecute the war by all legitimate means and to enact statutes that trigger special wartime authorities concerning the military, foreign trade, energy, communications, and other issues.

In summary, the Declare War Clause grants Congress the explicit power to declare war, shape foreign policy, and make critical decisions regarding national security. While the president retains some independence in responding to attacks and deploying troops, the Declare War Clause underscores the checks and balances inherent in the US system of government.

Recognition of foreign governments

The US Constitution does not explicitly mention the recognition of foreign governments in either Congress's or the President's enumerated powers. However, the Supreme Court, in Zivotofsky v. Kerry, ruled that the Constitution grants the President exclusive power over the recognition of foreign governments and their territorial bounds. This decision was based on an interpretation of the text and structure of the Constitution, particularly the President's responsibility under the Reception Clause to "receive Ambassadors and other public Ministers".

Historically, the recognition of new governments has often been a collaborative process between the President and Congress. For example, in the cases of the Spanish-American republics, Texas, Hayti, and Liberia, the President sought the judgment and cooperation of Congress before recognizing the new states. This collaborative approach is also reflected in the Logan Act of 1798, which was passed by Congress in response to a citizen's unauthorized negotiation with the French Government. The Act aimed to prevent the usurpation of executive functions by private individuals.

However, there have also been instances where the President has acted unilaterally in recognizing or refusing to recognize foreign governments. For example, President Woodrow Wilson refused to recognize Provisional President Huerta as the de facto government of Mexico in 1913, contributing to Huerta's downfall. Similarly, Wilson consistently refused to recognize the Union of Soviet Socialist Republics, a policy that was continued by his successors until Franklin D. Roosevelt.

While the Supreme Court has affirmed the President's exclusive power in recognizing foreign governments, it is important to note that Congress also has significant power in foreign affairs. Congress can legislate on matters preceding and following a presidential act of recognition, which can influence the effectiveness of the recognition. For example, Congress can institute a trade embargo, declare war, or decline to appropriate funds for an embassy in a recognized country.

In conclusion, while the explicit recognition of foreign governments is the exclusive domain of the President, the process often involves collaboration with Congress, and the ultimate success of a recognition decision may depend on the support and actions of the legislative branch.

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Treaties, alliances, and confederations

The US Constitution expressly prohibits powers to individual states regarding treaties, alliances, and confederations. Section 10, Clause 1 of the Constitution states:

> "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

This clause was included in the Constitution to address the flaws and limitations of the Articles of Confederation, which was the first governmental framework of the United States. The Articles established a weak central government, giving significant autonomy to individual states. While the Articles of Confederation gave the unicameral Congress of the Confederation the power to make treaties, these treaties needed the approval of nine out of thirteen states, which prevented many foreign pacts from being made.

The Constitution, therefore, prohibits individual states from entering into any treaties, alliances, or confederations, and any agreements or compacts with another state or foreign power without the consent of Congress. This clause has been interpreted by the Supreme Court to limit the power of states to deal with matters pertaining to international relations.

While the Constitution prohibits individual states from making treaties, it delegates the power to "make treaties" to the President and the Senate. This power is not unlimited, and some agreements, such as those related to armaments, must be approved by Congress. Treaties made by the President and Senate are incorporated into US federal law and are considered as binding as federal statutes.

Federal government's role in foreign affairs

The US Constitution outlines the federal government's role in foreign affairs, giving the legislative branch the power to declare war. This power was invoked, for example, in 1933 when the US recognised the Union of Soviet Socialist Republics. In contrast, President Woodrow Wilson refused to recognise Mexico's Provisional President Huerta in 1913, illustrating the power of nonrecognition.

The executive branch is the "sole mouthpiece of the nation in communication with foreign sovereignties". This means that foreign nations communicate through their respective executive departments, and the legislative branch cannot hold any communications with foreign nations. The executive branch retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.

The President's diplomatic role is also significant. In the case of the Spanish-American republics of Texas, Hayti, and Liberia, the President, before recognising the new state, invoked the judgment and cooperation of Congress. In numerous other cases, the recognition was given by the Executive solely on their own responsibility.

Madison argued that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power "to declare war". However, Hamilton, in defence of Washington's proclamation, adopted a different conception of the power of reception.

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