Executive Power in Foreign Affairs

PANEL #4 DEBATE (2:30-3:30 p.m.)

This debate will address the arguments over the extent of the Executive’s power in matters touching on foreign affairs. The debate will confront both constitutional and pragmatic arguments regarding the boundaries of the Executive’s role in treaty interpretation, war powers, and homeland security. The discussion will touch upon appropriate methods of constitutional interpretation—from originalism to functionalism.

Moderator: Hon. Alex Kozinski, 9th Circuit Court of Appeals
Debating:
* Professor Martin Flaherty, Fordham Law School
* Professor Michael Ramsey, University of San Diego Law School

Kozinski --

To my left is a youngish white male who is a professor at a Catholic school on the West Coast; to my further left is a youngish white male who is a professor at a Catholic school on the East Coast. The subject of executive power -- if we think about the power in the terms that have become familiar from Justice Jackson in the steel seizure case: given by Congress; outside congressional authorization without anything said by Congress one way or the other; and in derogation of authorization, where the powers are at the lowest ebb. Executive power has been cut down, but there's a little bit left and we're debating it now. After we had our debate last night, and our reception, I went and I got the Yale and Michigan law review articles and I went back to my hotel room and became engrossed in them and only had to stop when I was woken up in the morning. So I can't say I absorbed everything in them.
In Prof. Ramsay's article, the last paragraph, says we need to go back to the text, where constitutional discussion ought to begin. Prof. Flaherty has both a textualist and a non-textualist argument -- on text alone, he has 122 pages and 670 footnotes. You don't need to read the entire article, just that 670th footnote, conveniently put by itself on the last page: "Prakash and Ramsay simply beg the question of how the Constitution should be interpreted..." It is a begging-the-question trump argument.

Fortunately there is a rematch round, and we have rules. You have 15 minutes, but I will not enforce them, and if you want to drag yourself down by keep on talking, I won't stop you. I don't want to a clean fight, I'm looking
I'd liek to see some ad hominems, and some cheap debaters' tricks. I draw the line at any physical violence that I observe, but I have been very non-observant. If it gets boring, I have here the trump card in case any starts to nod off: a whistle. The person to speak first is chosen by coin toss -- Prof. Ramsay.

Prof. Ramsay --

My essential proposition is that the 18th century meaning of executive power includes foreign affairs power, as well as the more familiar power to execute the law. This has been referred to as Hamilton's vision, but it actually was articulated by Thomas Jefferson too. The Constitution has declared that the executive power shall be invested in the president, and transactions of foreign affairs are his exclusively except those specifically designated to Congress. The key writers of the 18th century describe executive power to include foreign affairs power. When Washington became president, he took control of foreign affairs, things like control and removal of diplomats, formation of foreign policy, interpretation and termination of treaties, even though they're not conveyed by any specific clause of the Constitution nor statutory authority. In a pragmatic sense, my pitch for adopting this reading of executive power is that it gives us a rule of law for international affairs. We can ask, when a presidnetial claim of power is advanced, as Jefferson did: Is this presidential power known in the 18th century, or one that was delegated? Approaches founded on a living constitution have no such advantage.

Prof. Flaherty --

I'm a card-carrying member of the ACS and someone who had some role in its founding, which led me to confide that this might be the toughest crowd I've faced since I was in the headquarters of a Protestant paramilitary group in Northern Ireland arguing for Catholic rights. I figured, at least this crowd doesn't have any guns, but then I thought "Federalist Society, 2nd Amendment." So hold your fire.

Mike Ramsay has a moderate theory, and I want to talk about the competing conceptions. Ramsay gives a default position that when nothing else addresses powers of foreign affairs, it goes to the president. If used in the wrong hands, and I don't know if my friend John Yoo is still here, this can be used as a way to foil attempts by Congress to legislate in executive foreign affairs powers. I want to argue for symmetry, that both branches have to resort to conventional methods of constitutional interpretation. How does that look in foreign relations? The text is not going to resolve a lot the turf battles, and a lot will be resolved by history and custom but not all, and ultimately one may have no choice but to fall back on structural or purposive approaches.

I just don't think the term executive can bear all the weight Ramsay wants to put on it. The core meaning of execute is not foreign affairs authority, but to make the laws effective. If the commerce power cannot be read to embrace everything, neither can the executive. There are counter-texts, texts in Article II that don't make sense because they are redundant if the executive power conveys en masse foreign affairs authority. So the answer can't lie in text. The answer ostensibly comes from history: in the 18th century, executive power was widely understood to mean foreign affairs authority. Here I'm going to use a cheap debaters' trick: I care more about history than doctrinal results. Let the president torture, just get the history right.

There is very little evidence to support the idea that in the 18th century, it was widely thought that executive power equalled foreign affairs power. Separation of powers was a relatively new and under-developed doctrine at that time. Locke had a tripartite system, but it did not include the judiciary, and distinguished the federative foreign affairs power from the executive.

Q&A:

Flaherty: I resist the aesthetic fallacy with respect to the Constitution. It is a coherent document, but not particularly so; a committee document, hammered out, and finding a grand plan in slight deviations is unconvincing.

Ramsay: There's absolutely no doubt that the word "execute" and its derivate "executive" refers to carrying out the powers of office, and this is the sense used in the oath clause. But that doesn't cut either way on whether the executive vesting clause has additional meanings.

Kozinski: Michael, could you address a historical point? I wonder how much historical precedent really matters when the notion of the executive that existed at the founding is very different from what the executive is today. At that time, there were mostly kings of varying power, and so the conduct of foreign powers was mostly a personal matter.

Ramsay: I am not saying that because Montesquieu thought the king should have foreign affairs power, the Framers thought the president did, or that we today should. I use the writers for definition, to see what the ordinary meaning of words was in the 18th century.

Q: The general vesting clause may be something beside the point when you have the War Power. If you could answer to questions: if we are in a war like the war on terror with no external limits, what is the excutive power, and how does this interact with Article III?

Flaherty A: Most scholars other than John Yoo do think that the War Power gives Congress the power to declare war. The problem is the indeterminacy of the length and geography; if your definition of war in the war on terror swallows everything else.

Ramsay A: The Commander in Chief power is not redundant of the Chief Executive power. I think you're looking at a substantial concurrent power between the president and Congress. There are limits on what Congress can do; it cannot make someone other than the president commander-in-chief. For the most part, a Congressional regulation would trump.

T. More Q: Even if that's how Montesquieu thought of it, why wouldn't the Founders think "We're not making a king here"?

Flaherty A: This is my reward for going into the Protestant paramilitary.

Ramsay A: With that view, you lose the ability to explain the traditional powers presidents did exercise, such as the power to dismiss ambassadors, that are not enumerated. On the broader point of whether they're following Montesquieu or not, they're clearly not -- they took several powers from the executive and gave them to the legislative. But this reflects a compromise between the Articles of Confederation's weak executive and Montesquieu's very strong executive.

Flaherty A: This is the problem with history-inspired legal scholarship: history is messy. We don't agree on executive power today, so to think that there was widespread agreement during an era when it was being developed is counter-intuitive.

Q: If the president does not have plenary foreign affairs power, then who does?

Flaherty A: It depends on the issue.

Kozinski: You should be a judge.

Flaherty: I thought about answering, "I'll answer when I see it thoroughly briefed."

Kozinski: No advisory opinions.

Ramsay: Prof. Flaherty's recourse to penumbras suggests that he's already in trouble.

Kozinski: Why not just go with Jackson? We know that there are powers that Congress can give and some that it can't take away.

Q: Do you think that your interpretation gives a result that you find preferable to that of your opponent's interpretation?

Ramsay A: As a constitutional interpreter in an originalist mode, my own person view of how the founding ought to have been done doesn't affect how it was done. You're asking me to engage in a living constitution analysis, and that's just not on my resume.

Flaherty A: To me, the preferable result is to get the history correct. In many doctrinal areas, the history provides no clear guidance. I did not mean to suggest that the removal of ambassadors was purely a function of the appointments clause, but the late 18th and early 19th century Americans did not rely on the executive vesting clause.

Ramsay A: My last word is Thomas Jefferson's word, and you can't fight this opinion. "The constitution has declared that the executive power shall be vested in the president. The transaction of business is executive all together, it belongs to that department."