Foreign Policy Powers: Who Decides?

The US Constitution grants Congress the power to regulate commerce with foreign nations, among states, and with the Indian tribes. This is known as the Commerce Clause, and it gives Congress the authority to legislate on matters related to foreign affairs and regulate state activities. The Supreme Court has interpreted this clause broadly, recognizing that any activity with a “substantial economic effect on interstate commerce falls under its scope. However, the President also has significant constitutional powers in foreign relations, including the right to receive ambassadors and other public ministers, which includes the authority to refuse to receive them, request their recall, or dismiss them. This makes the President the primary representative of the nation in its dealings with other countries.

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The President's diplomatic role

The President of the United States is the country's Chief Diplomat, as outlined in Article II, Section 2 of the Constitution. This means that the President has the power to negotiate with foreign governments, appoint ambassadors, and make binding treaties, with the advice and consent of the Senate.

The President's role as Chief Diplomat has been demonstrated in various historical instances. For example, in 1978, President Jimmy Carter hosted peace talks between the leaders of Israel and Egypt, resulting in a peace accord that ended the state of war between the two nations. Similarly, President Clinton played a role in the signing of the Oslo Accords between Israel and Palestine in 1993 and contributed to peace in Ireland by assembling a coalition of 22 nations to oppose the Haitian dictators.

While the President is the Chief Diplomat, the Senate also plays a crucial role in the approval of treaties. The power-sharing arrangement between the Executive and Legislative Branches is intended to maintain a balance of power and prevent executive tyranny.

The Executive's authority

The Executive Branch of the U.S. government, headed by the President, has significant constitutional powers when it comes to dealing with foreign countries. This is largely due to the President's diplomatic role, which makes them the "sole mouthpiece of the nation in its dealing with other nations".

The President has the right to "receive ambassadors and other public ministers", which includes the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under U.S. laws. This power to receive ambassadors is not limited to "all possible diplomatic agents which any foreign power may accredit to the United States" but also includes all foreign consular agents.

The Executive also has the exclusive authority to recognize foreign sovereigns and their territorial bounds. This was upheld by the Supreme Court in Zivotofsky v. Kerry, which established that while Congress can legislate on matters preceding and following a presidential act of recognition, the Executive retains the sole power to recognize foreign sovereigns.

In practice, the President has often invoked the judgment and cooperation of Congress when recognizing new states, and in such cases, the appointment of a minister constitutes formal recognition according to international law. However, there have also been instances where the Executive has acted solely on their own responsibility in recognizing foreign sovereigns.

The Executive's constitutional powers in foreign relations also include the ability to determine the condition of the nation, which may, in its consequences, affect the power of the legislature to declare war. While the Executive cannot directly control the legislature's power to declare war, it can establish an antecedent state of things that ought to weigh in the legislative decision.

Congress' legislative power

The U.S. Constitution grants all legislative powers to a bicameral Congress, consisting of a House of Representatives and a Senate. The legislative powers of Congress are extensive and varied, including the power to make all laws necessary for executing constitutional powers, levying taxes, regulating commerce, and providing for the general welfare of the United States.

The House of Representatives and the Senate have distinct rules and procedures for processing legislation. The House generally allows a numerical majority to process legislation quickly, while the Senate's rules favour deliberation and provide individual senators with significant procedural leverage. The two chambers are considered equal in their legislative roles and functions, but there are some key differences. For example, only the House can originate revenue legislation, while only the Senate confirms presidential nominations and approves treaties.

Congress also has the power to impeach and try federal officials, including the President, and to make laws governing federal elections. Additionally, Congress can exercise exclusive legislation over the District that is the seat of the U.S. government, as well as over places purchased by the U.S. government for erecting forts, arsenals, and other needful buildings.

While Congress has broad legislative powers, the President also has a significant role in the legislative process. The President can influence policy by recommending an annual budget and suggesting legislation. The President's power to veto legislation can also shape the content of bills, as it is unusual for laws to be enacted over a presidential veto. The process by which a bill becomes law can be unpredictable and vary significantly from bill to bill.

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Commerce Clause

The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause grants the United States Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

The Commerce Clause has been interpreted broadly by courts throughout much of US history. In Gibbons v. Ogden in 1824, the Supreme Court ruled that intrastate activity could be regulated under the Commerce Clause, provided that it was part of a larger interstate commercial scheme. In Swift and Company v. United States in 1905, the Supreme Court affirmed Congress's authority to regulate local commerce, as long as it could become part of a continuous "current" of commerce involving the interstate movement of goods and services.

However, between 1905 and 1937, during what became known as the Lochner era, the Supreme Court narrowed its interpretation of the Commerce Clause. During this period, courts debated the idea that the Commerce Clause does not empower Congress to pass laws that impede an individual's right to enter into business contracts.

In 1937, the Court shifted back towards a broader interpretation of the Commerce Clause, recognising that it could be used to regulate state activity if the activity had a "substantial economic effect" on interstate commerce or if the "cumulative effect" of an act could impact such commerce. From 1937 to 1995, the Supreme Court did not invalidate any laws on the basis of overstepping the Commerce Clause's grant of power.

In United States v. Lopez in 1995, the Supreme Court attempted to curtail Congress's broad legislative mandate under the Commerce Clause by adopting a more conservative interpretation. In this case, the defendant argued that the federal government did not have the authority to regulate firearms in local schools. The government countered that this fell under the Commerce Clause as the possession of firearms in schools could lead to violent crime, thereby affecting general economic conditions. The Supreme Court rejected the government's argument, holding that Congress's power under the Commerce Clause is limited to regulating the channels of commerce, the instrumentalities of commerce, and actions that substantially affect interstate commerce.

The Commerce Clause has been invoked in various Supreme Court cases, including Gonzales v. Raich, which dealt with federal drug prohibition laws, and Japan Line v. County of Los Angeles, a dormant commerce clause case involving state taxation impacting foreign commerce.

Supreme Court rulings

The U.S. Constitution designates the president as the primary actor in foreign relations, granting powers such as treaty negotiation and military command. Article II of the U.S. Constitution invests the president with the power to make treaties, conduct foreign relations, and, as commander-in-chief, to make war. Although the Constitution does not explicitly state that the president is the primary constitutional authority in foreign affairs, the Supreme Court has historically ruled in favour of presidential authority in foreign policy matters. For example, in United States v. Curtiss-Wright Export Corp, the Court put it bluntly, stating that "the President alone has the power to speak or listen as a representative of the nation". The Court 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 Supreme Court does have original jurisdiction over cases involving foreign ambassadors, ministers, and consuls, and its appellate jurisdiction includes disputes involving foreign governments, citizens, and subjects, as well as admiralty and maritime law. While the Supreme Court typically defers to the political branches of the government in foreign policy matters, it has ruled in several important cases that have limited presidential power in foreign affairs. For example, in Youngstown Sheet and Tube Co. v. Sawyer (1952), the Court ruled that President Truman could not, under his powers as commander-in-chief, seize steel mills in response to a labour dispute, as this action had no clear constitutional basis and defied congressional wishes.

The Supreme Court has also ruled on the constitutionality of treaties. While the Court has acknowledged that treaties are subject to constitutional limitations, it has rarely held a treaty to exceed those limits. The Court has ruled a treaty to be non-self-executing on only a handful of occasions, such as in Whitney v. Robertson (1888), where it held that a tariff statute superseded inconsistent provisions of a treaty with the Dominican Republic. In another case, the Court invalidated an ordinance that violated a treaty with Japan, holding that the treaty's terms could not be rendered nugatory by municipal ordinances or state laws.

In summary, while the president has broad powers in foreign policy, the Supreme Court has played a role in shaping the boundaries of those powers through its rulings. The Court has generally upheld the premise that the president has extensive powers in foreign affairs but has also ruled in favour of congressional authority in certain cases, demonstrating the complex relationship between the executive and legislative branches in foreign relations.

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