Constitutional Law: Executive Foreign Power

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1. Write an introduction, which clearly identifies the topic of your report and the issues that you seek to illuminate. The introduction should include the thesis or basis of your report, and preview your major points.

2. The body of your report should be dedicated to support your thesis statement with claims gleaned from your research (into what others have written on the topic and data that you have gathered), readings from the course text, discussions, case law and law review articles. All references need to be in Bluebook style; this means that footnotes (at the bottom of the page) are required. (NOTE: if you are not a Legal Studies student, then you may use APA style, which requires endnotes at the end of your report.) Please include at least 8 references to support your paper’s thesis statement.
You must explain the issue, analyze both side of the argument on the issue and discuss the current status of the law. You also need to discuss any current pending cases and unresolved legal questions. Finally, you will discuss how you see the law (statutory and case law) changing on this issue in the future and why.

3. Conclude your report by recapitulating your thesis and explaining in greater detail the significance of your findings. If you would like, include in your conclusion some questions or recommendations about the topic which you’ve written.
Constitutional Law

Michael Dudley
American Military University

Constitutional Law: Executive Foreign Power
The United States Constitution has assigned the government’s arm with specific authority and responsibility when it comes to international affairs. For instance, the Constitution assigns the President the authority of commanding the army and the nation to the battlefield, whereas the Constitution provides Congress with authority to ensure the international trade is well maintained and controlled (wilt, 2019). Some powers are assigned to more than one arm of the government. In most cases, the legislative and executive arms tend to share authority when it comes to creating and implementing foreign-related functions. The nature of the powers on foreign policy that the President holds and the authority and responsibility of Congress as a factor of checks and balances of the President’s international policy continue to trigger numerous conversations and fiercely debated arguments.
Several foreign policy issues related to international policy have seen presidential discussions concerning their power and their constitutional limit in court cases (Mann, 2010). Although the previous declarations indicate the United States presidents have differed in consideration of their perspective on the role and the authority of the President in foreign affairs and policies, the global analyst argues that the Presidential office has to continued to grow stronger and is slowly consolidating the influence at the detriment of Congress. The policy analyst provides that the opportunity offered by the executive office to overshadow the legislatures on major foreign affairs, such as war, has continued to increase in the past two decades.
The checks and balances in power are a significant factor in the democratic ideal nation, such as the United States. The President’s authority in international policy involves a lot of power that requires Congress’s consent when it comes to sensitive subjects, such as the approval of a specific discretionary authority that is needed in handling foreign policy programs (Wilt, 2019). With each President having his way of responding to foreign issues, especially those related to the national security or the security of the U.S. allies, the need to check and balance their power is essential. The roles defined by the Constitution and American foreign policy concerning Congress and the President continue to raise a great deal of debate. The research aims to clarify the fundamental basis of the executive powers in foreign policy affairs and controls and balances concerning the executive foreign affair provided in the Law.
The Issue
The legal authority of the executive office in international policy, as in other respects, is embedded in Article (2) of the existing Law (Hersman, 2012). This federal law gives the Executive the powers to join alliances, nominate ambassadors, particularly with Congress’s permission. That is, the Statute allows the President to enter agreements, but with two-thirds vote approval of Congress. This illustrates that this process is dependent on Congress approvals (Hersman, 2012). The executive office also depends on several other provisions in respect of their position on foreign affairs, especially those that grant constitutional authority as the military commander. A wide variety of related or assumed powers arises from their military status. A vast range of similar or presumed powers emerges from their military role (Hersman, 2012). For instance, their implicit authority to enforce foreign policy and strike a deal with other nations typically arises from the overt power to appoint as well as replace ambassadors.
In addition, the presidents’ foreign relations powers are often taken from the laws. Congress approved Law granting the President more extraordinary powers to intervene on particular foreign policy matters (Mintz & DeRouen Jr, 2010). For example, the “International Emergency Economic Powers Act of 1977” mandated the President to enforce punitive economic sanctions against foreign countries. Such powers are also affirmed by several court cases like the “United States v. Curtiss-Wright Export Corp,” which allows the President to exert statutory authority in international relations. Conversely, there are legal proceedings that similarly detail the circumstance in which the executive authority is limited (Mintz & DeRouen Jr, 2010). This includes the “Boumediene v. Bush, 2008” case whereby the President is forbidden from suspending Constitutional Protections in the United States controlled international jurisdiction. Allowing the President to postpone Habeus corpus in international territories is considered a breach of both the suspension provision and separation of authority.
Another issue surrounding the Constitution’s executive foreign power is the presence of implicit or hidden allocation of power that re corollary to express the Congress powers over the purse. In the Constitution’s Article II under the Executive Power Clause or the Commander-in-Chief Clause, one can establish the presence of implicit power for the President. The use of the Executive Power Clause remains a debatable issue throughout the history of America, with the issue being the President’s power in foreign affairs, with relation to acting on behalf of the nation when entering or terminating treaties. The court addresses the issue of implicit Presidential power of conducting foreign affairs that are not mentioned in the Constitution in the United States v. Curtiss-Wright Export Corp. (1936). The court, in its ruling, recognized the President’s power that is considered to be very delicate, plenary, and exclusive to the sole organ of the federal government in the international relation field, with the power not having to require its execution through a Congress approval.
Through the research, the paper focuses on the issues based on the research questions. The research identifies whether the Executive has something of an intrinsic influence in the foreign policy by studying the relation between the Presidential foreign powers with regard to the United States Constitution. The research also identifies if there is a distinction between national and foreign policies from those enriched in the Constitution when it comes to the execution of foreign power by the Executive with the Congress as its oversight. The research also analyzes some of the restrictions that the Executive might face in terms of negotiations with sovereign countries that are not yet legally treaty members. Through the analysis of these three concepts, the research is able to identify recommendations to ensure the existing issues have been eliminated and clarity is attained for both Executive and Congress roles in the execution and implementation of foreign-related powers.
Literature Review
The literature covers the analysis of the executive powers in foreign policy affairs and controls and balances with regard to the executive foreign affair provided in the Law. The first aspect that is essential is the powers of the United States President in foreign affairs. The powers held by the President are defined in Article II of the Constitution and another governing doctrine. Some of the authorities of the President in foreign affairs require the approval of the Congress, with the need for approval in other matters making it difficult for the President freedom to engage in the foreign affair. The President under the Constitution charter is granted the power to make treaties and appoint ambassadors to foreign countries that the advice and consent o the senate. The President has the power to execute foreign policy actions through other clauses. The President’s foreign policy action may include those that bestow executive power or those that define or redefine the commander in chief of the army or navy roles in foreign affairs. The President, through statutory authorities, has gained the power to act on specific forewing affairs, such as the power to impose economic sanctions on foreign entities provided by the International Emergency Economic Power Act of 1977 (Legal Information Institute, n.d.). The President has the power to conduct a foreign action and defend it through the case laws. For instance, in United States. v. Curtiss-Wright Export Corporation (1936), the court held that President Franklin Roosevelt had acted within the constitutional authority by bringing charges against the Curtiss-Wright Export Corporation for selling arms to Paraguay and Bolivia in violation of federal Law. The case indicates that the Executive was in a better condition that the Congress in knowing and understanding the foreign counties and the conditions they are facing.
The Executive and the legislature have always been in collusion when it comes to the implementation of foreign affairs policy. The conflict between the President and the Congress is a significant factor to be considered in the research, which considers that Congress can oversee and approve most of the President’s foreign actions. On that note, the literature analyzes the Congressional implementation of presidential policies. In American history, presidents have been faced with difficult situations in the implementation of their foreign policy due to the authority of Congress over the issue at hand. For instance, President Woodrow Wilson had to go before Congress to ask the Panama Tolls Act (1911) to be modified to be able to implement his Mexican Policy. In his appearance before the Congress, President Wilson stated, “I ask this of you in support of the Administration’s foreign policy. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure” (Shaw, 1924).
Congress power is considered to be indispensable when it comes to foreign policy. After all, Congress holds power to lay and collect taxes used for defense and creation and maintenance of the military even though it does hold power to direct them. Congress holds power to pledge the public credit that is required by the Executive in declaring war, for defining offenses against the Law of nations, and used for regulating foreign commerce. With the ability to make all the laws that govern the United States, the Congress is considered to have operated to augment the President’s foreign power more frequently than it has towards curtailing them. An example of Congress to augment the President’s power in the foreign field is the Lend-Lease Act (1941). The act which followed the review of the presidential policies with regard to the conflict in Vietnamese had resulted in the Congress to conduct legislative restrictions, which limited the President foreign policy creation and implementation and also their power in the use of troops in foreign affairs with the absence of a declaration of war. Congress also limited the presidential power to declare national emergencies by limiting the President’s political and economic power. Although Congress has been working to regain most of the President’s foreign affairs power previously lost, there is still existing conflict between the Executive and Congress in terms of implementation of foreign policy and the power behind it.
The conflict between the Executive and the legislature is related to the power check and balances. Some of the areas that tend to create conflict between the President and Congress include the United States military’s foreign operation. The military operates under the power of war that is divided between the Executive and legislature. Congress has the power to declare war, which limits the power of the President in foreign military operations. The need of Congress to hold power to declare war is used as a power check and balance, with the consideration that presidents mat order the troops into hostilities without considering all possible situations. The War Powers Resolution enacted by Congress after Vietnam War following foreign military action taken by President Nixon through the veto power has been used as a check and balance for the presidential military use (Masters, 2017). Although most presidents have been found to have flouted the resolution, most experts argue that the President should not hold more war power, citing events such as in Libya, Iraq, and Syria where the President would have used military forces as early as possible to control the situations rather than waiting for Congressional approval.
Another sector that has witnessed conflict between the Executive and legislature is foreign aid, which is also considered an important sector that requires check and balance in terms of presidential power. Various presidents have balked at Congress’s attempts to withhold their economic and security assistance from governments or entities with poor human rights conditions (Masters, 2017). The congressional restriction may hinder the ability of the President to create or implement foreign policy. For instance, during the Obama administration, some of the senior military officers in the U.S. army complained of the congressional restrictions that made it difficult for other foreign policy objectives to be implemented, such as counterterrorism and counternarcotics. However, Congress’s restriction is to ensure the Executive does not hold much power to the extent that it overuse or misuse it.
The intelligent oversight in the United States has been a significant debate over the years. With access to high prioritized intelligence being one of the vital aspects in the United States security, having the power to oversight intelligence plays a significant role. Congress, since the 1970s, has gained a more significant role in intelligence oversight. Following the Church Committee uncover of the security agencies, including the CIA, the Federal Bureau of Investigation (FBI), and the National Security Agency (NSA), for privacy abuse, Congress enacted laws that provided supervision of the agencies’ activities. The laws enacted by Congress have ensured the check and balance are maintained, which ensures that the President does not use the power to intelligence access to conduct rogue operations.
The struggle in dealing with foreign policy between the President and Congress has reduced its intensity in the past two decades. Congress has ignored or not questions some of the foreign-based actions that have been conducted by the President. For instance, the President’s power of recognition, especially in recognizing new states that have not yet entered into treaties, with the President engaging in foreign policy with such states without Congressional approval. The current way Congress has been acting concerning the President’s foreign affairs oversight has posed a question of whether it is time for the President to start acting alone with foreign affairs (Makielski, n.d.). However, the nation that is devoted to the separation of power has to remain within its ideal that holds the checks and balances of the system. The ability of the presidents to consistently make correct decisions and act within their assigned power in foreign affairs does not mean that removing the checks and balances things can remain the same. As a democratic nation, Congress will remain with the responsibility o delegating, regulating, and oversight in decisions made by the Executive. Although most scholars call for an amendment that would see the conflict between the Executive and legislature reduce, they also champion a framework that would ensure the checks and balances operate in a more moderate and in a way to fit the ever-changing society.
The authority shared by the Executive and the Legislature, mainly foreign policy decisions and the external budget, is the basis for certain facets of foreign policy decision making. Inside the presidential office, several foreign policy officials report exclusively to the Executive. This is because such foreign policies can sometimes appear fractured and subjective due to the players’ ambiguity and the problems concerned. However, the President as the leader, with both the legislative mandate and the power to refer to the Congress, can swiftly and decisively make foreign policies, particularly where it requires executive actions, including military force. While the President has absolute executive powers, proper checks and balances need to be put in place to ensure that he does not misuse them. As shown, while the framers of the Constitution meant well while allowing this provision, there are several instances whereby presidents have been called out for misusing their executive powers. Each arm of the government has a unique role to play in policy decision-making. The shared powers between the legislature and the Executive in foreign policy decision-making form a strong foundation for the Law’s formation. There are still several policy decisions that the President makes through executive orders. In most cases, such decisions are usually subjective as they are made to address particular system problems. The Constitution allows for such decisions to be subjected to examination by the judiciary through a court process. At this point, they can either be confirmed to be reversed based on their constitutionality and adherence to the Rule of Law. However, the President as the custodian of the Constitution and the will of the people can make executive orders on various foreign policies, especially where military action is considered a necessity.
Canes-Wrone, B., Howell, W. G., & Lewis, D. E. (2008). Toward a broader understanding of presidential power: A reevaluation of the two presidencies thesis. The Journal of Politics, 70(1), 1-16.
Hersman, R. K. (2012). Friends and foes: how Congress and the president really make foreign policy. Brookings Institution Press.
Legal Information institute. (n.d.). THE CONDUCT OF FOREIGN RELATIONS. Retrieved from
Mann, T. (2010). A question of balance: The president, the Congress and foreign policy. Brookings Institution Press.
Masters, J. (2017). U.S. Foreign Policy Powers: Congress and the President. Council on Foreign Relations. Retrieved from
Mintz, A., & DeRouen Jr, K. (2010). Understanding foreign policy decision making. Cambridge University Press.
Wilt, Michael W. (2019) “The President, Foreign Policy, and War Powers: A Survey on the Expansion and Setbacks of Presidential Power,” Channels: Where Disciplines Meet: Vol. 3 : No. 2 , Article 3. DOI: 10.15385/jch.2019.3.2.3,