The Geopolitical Constitution: Executive Expediency and Executive Agreements
Joel R. Paul
University of California Hastings College of the Law
California Law Review, No. 86, July 1998
From the Founding through the Second World War well established understandings constrained executive power over foreign relations. Since the Cold War the executive has enlarged its foreign relations power. Courts and commentators justified and defended the growth of executive power in relation to two geopolitical phenomenon. First, the executive was better positioned to command the United States' wider global responsibilities. Second, the threat posed by Soviet expansionism and nuclear missile technology did not afford time for congressional deliberation. While scholars have debated whether the Cold War actually justified the extent of executive power, they have generally accepted as a self-evident proposition that the president's authority should expand in response to geopolitical circumstances.
Professor Paul characterizes the proposition that presidential power expands relative to geopolitical exigencies as a "discourse of executive expediency." Paul traces the origin of this discourse to the domestic debates over the Bricker Amendment, McCarthysm and the War in Indochina and shows how courts used this justificatory rhetoric to construct a new method for interpreting the president's constitutional powers. Focusing particularly on the use of executive agreements, Paul argues that even in the absence of any external threat, courts willingly suspended critical judgments and embraced expediency discourse.
In Paul's view, the expansion of the president's foreign relations power obstructed public accountability, facilitated interventionism, and corrupted the policy-making process. Paul challenges the continued reliance on Cold War discourse and offers an alternative approach to adjudicating questions on the reach of executive foreign relations power.
Date posted: August 22, 1998