Transcript Foreign Affairs and War Powers

Plenary v. Concurrent Powers
Plenary Powers: powers granted to a body
in absolute terms, with no review of, or
limitations upon, the exercise of those
powers.
Concurrent Powers: powers shared among
two or more bodies, allowing checks or
limits on the exercise of those powers
Diplomacy
Plenary Powers/ Concurrent Powers
President
Congress
Negotiate treaties Ratify treaties (Senate)
Appoint Envoys
Confirm Envoys (Senate)
Receive Envoys
Regulate Int’l Commerce
Lay and collect duties
Define/punish felonies
on high seas, offenses
against law of nations
War Powers (all plenary)
President
Congress
Commander in chief
Make Rules for
(army, navy, militia when government of army and
called into federal service) navy
Repel sudden attacks and
insurrections
Raise & support Armies
(no appropriation of
more than 2 years)
“To provide and
maintain a Navy”
An Early Dispute, Pacificus vs. Helvidius
In 1793, George Washington issued a Proclamation
of Neutrality in the war between France and
Great Britain.
Alexander Hamilton (Pacificus), then Sec’y of
Treasury, wrote that while Congress has the sole
right to declare war, it is "the duty of the
executive to preserve peace till war is declared.“
James Madison (Helvidius), then a member of
Congress, criticized Washington for doing so
without authorization by Congress
Little v. Barreme (1804)
Congress authorized the President to order the
navy to stop and search any American ship they
believed was bound for a French port; if they
found evidence the ship was bound for France,
they could seize it and keep half of the cargo for
themselves.
When the Secretary of the Navy issued the orders
to his ship captains, he expanded the
authorization to include ships sailing from a
French port and ships that appeared foreign but
were either actually American or carrying
American cargo.
Little v. Barreme (1804)
The Navy seized a Danish ship sailing from France
without American cargo. Capt. Little wished to
keep his portion of the proceeds from his
seizure, while Barreme, the ship’s owner wanted
his cargo back, plus damages.
C. J. Marshall, and an unanimous court, found the
seizure illegitimate because Congress had not
explicitly authorized seizures of non-American
vessels bound from France. Where Congress was
silent, the President’s authority ended.
Arguments For Presidential Dominance
1) Unity and speed - single actor with clear
responsibility and authority - no need to
develop consensus, thus able to act quickly
2) Control of bureaucracy - Executive
departments (including military) are global
and possess the information, expertise, and
ability to implement policy
3) Big Picture - Presidents, esp. 2nd term, have
fewer parochial concerns, serve whole nation
Arguments For Congressional Dominance
1) Deliberation - quick decisions may be
wrong and consensus is necessary for
unified national effort
2) Distance from Bureaucracy – Congress less
like to be captive to groupthink found in
State Dept, intelligence agencies, or military
3) Representation – Congress closer to
people, more accountable, less likely to
discount objections
The War Powers Resolution
President deploys troops to hostile area
President has 48 hours to notify Congress
Congress must pass resolution authorizing
deployment within 60 days
If Congress does not authorize deployment,
troops must be withdrawn within 30 days
3 Types of Diplomatic Agreements
1) Treaties
2) Executive Agreements
3) Congressional-Executive
Agreements
Treaties v. Executive Agreements
Between 1789 and 1839, U.S. was
party to 60 treaties and 27
executive agreements
Between 1939 and 2009, U.S. was
party to ~1,100 treaties and >
16,500 executive agreements
U.S. v. Belmont (1937)
FDR enters into Litvinov Assignment with
Soviet Union, recognizes USSR as legitimate
government over former Russia in 1933
Belmont was banker who held assets of
Russian firm nationalized by Soviet
government, refused to repatriate funds
Belmont claimed that executive agreement not
sufficient legal authority to override NY
banking laws
U.S. v. Belmont (1937)
“The recognition, establishment of diplomatic
relations, the assignment, and agreements
with respect thereto, were all parts of one
transaction, resulting in an international
compact between the two governments.
That the negotiations, acceptance of the
assignment, and agreements and
understandings in respect thereof were
within the competence of the President may
not be doubted.” (G. Sutherland)
Treaty-Making Process
1. Secretary of State authorizes negotiation and
U.S. representatives negotiate
2. Representatives agree on terms and
(authorized by Sec’y of State) sign agreement
3. President transmits agreement to Senate
4. Senate Foreign Relations Committee considers
treaty and reports to Senate
5. Senate considers & approves by 2/3 majority
6. President declares treaty to be in force
Executive Agreement-Making Process
1. Secretary of State authorizes negotiation
and U.S. representatives negotiate
2. Representatives agree on terms and
(authorized by Sec’y of State) sign
agreement
3. Agreement enters into force
4. President transmits agreement to
Congress
Attempts to Rein in Executive Agreements
Bricker Amendment. Proposed in 1951 as
response to Truman’s agreement at Yalta.
Required implementing legislation "which
would be valid in the absence of treaty"
before a treaty had effect within the U.S.;
and granted Congress the authority to
regulate all executive agreement
Opposed by Eisenhower administration; a
substitute version (George Amendment)
fell 1 vote short in Senate in 1954
Attempts to Rein in Executive Agreements
Case Act of 1972 requires the Sec’y of State to send
to Congress within sixty days the text of "any
international agreement, other than a treaty," to
which United States is a party.
If president decides that publication will
compromise national security, he can transmit it
to the Senate Foreign Relations Committee and
the House Committee on Foreign Affairs under
an injunction of secrecy.
Regularly ignored by presidents since 1972.
Reid v. Covert (1957)
Court invalidated an executive agreement
between U.S. and Britain giving U.S.
military courts jurisdiction over crimes
committed by U.S. military personnel and
their dependents
Covert, a soldier’s wife, killed her husband
and was tried under the Code of Military
Justice. She argued that Congress’ power to
make rules for government of military
could not apply to civilians
Reid v. Covert (1957)
Court accepted Covert’s argument, striking down
the agreement as unconstitutional
“The United States is entirely a creature of the
Constitution. Its power and authority have no
other source. It can only act in accordance with
all the limitations imposed by the Constitution.”
“no agreement with a foreign nation can confer
power on the Congress, or on any other branch
of Government, which is free from the restraints
of the Constitution.”
U.N. Charter, Article 2(4)
All members shall refrain in their
international relations from the
threat or use of force against the
territorial integrity or political
independence of any state, or in any
other manner inconsistent with the
purposes of the United Nations.
U.N. Charter, Article 51
Nothing in the present Charter shall
impair the inherent right of
collective or individual self-defence
if an armed attack occurs against a
member of the United Nations
The War Powers Resolution
Response to unilateral presidential
role in Vietnam policy
Passed in 1973 over Nixon’s veto
Never recognized by any other
American president
War Powers Resolution
Congress
Executive
Power to Declare War Commander-inChief
Raise and support
armies/navies
Executive power (as
To make Rules for the
principle)
Government and
Regulation (of such)
The “Democratic Peace” Argument
Immanuel Kant, “Perpetual Peace” (1795):
constitutional republics would be
less warlike because majority would
not authorize war unless necessary
for self-defense, unlike monarchs
who are indifferent to soldiers’ lives
A Counterargument
Phillip Bobbitt: "The power to make
war is not an enumerated power.“
Congress’ power to declare is a
legalism, and should be reserved for
“total war”
Presidential power includes such
executive decisions, Congress’ role
is funding
United Nations Participation Act of
1945, Sec. 6 (partial)
“The President shall not be deemed to
require the authorization of the Congress
to make available to the Security Council
on its call in order to take action under
article 42 of [the UN] … Charter and
pursuant to such special agreement or
agreements the armed forces, facilities, or
assistance provided for [in Art. 43 of the
UN Charter].”
International Powers Denied States in
Article I, Section 10
No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and
Reprisal …
No State shall, without the Consent of the Congress,
lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for
executing its inspection Laws: and the net Produce
of all Duties and Imposts, laid by any State on
Imports or Exports, shall be for the Use of the
Treasury of the United States …
International Powers Denied States in
Article I, Section 10
No State shall, without the Consent of
Congress, lay any duty of Tonnage, keep
Troops, or Ships of War in time of Peace,
enter into any Agreement or Compact
with another State, or with a foreign
Power, or engage in War, unless actually
invaded, or in such imminent Danger as
will not admit of delay
U.S. v. Pink (1942)
After the U.S. recognized the Soviet Union, the
U.S. sued Pink, N.Y.’s Superintendent of
Insurance for return of $1 million to the First
Russian Insurance Company, a company
organized prior to Bolshevik Revolution that
had a NY branch.
After the Revolution, the Russian government
nationalized all insurance companies, making
it owner of First Russian’s assets. NY refused
to recognize the nationalization as legal.
U.S. v. Pink (1942)
New York’s action "amounted in substance to
a rejection of a part of the policy underlying
recognition by this nation of Soviet Russia.
Such power is not accorded a State in our
constitutional system... No state can rewrite
our foreign policy to conform to its own
domestic policies. Power over external affairs
is not shared by the States; it is vested in the
national government exclusively."
Crosby v. National Foreign
Trade Council (2000)
Massachusetts prohibited state agencies from
purchasing with companies doing business in
Burma (Myanmar)
Congress had also passed legislation imposing
trade sanctions on Burma, but with weaker
sanctions on companies doing business there
Supreme Court strikes down MA law as
preempted by Congress in area properly
controlled by federal government