The Vesting Clauses and Foreign Affairs

43 Pages Posted: 5 Oct 2023 Last revised: 9 Jan 2024

See all articles by Michael D. Ramsey

Michael D. Ramsey

University of San Diego School of Law

Date Written: October 4, 2023

Abstract

An enduring puzzle of U.S. constitutional law is how the Constitution divides foreign affairs powers among the branches of government. The Constitution does not refer to a single foreign affairs power, and although it allocates some specific foreign affairs powers, it seems to omit some important ones while failing to fully direct how the ones it does allocate interact with each other.

This symposium essay argues that many of the challenges of foreign affairs constitutionalism can be mitigated by giving up thinking about foreign affairs as a meaningful constitutional category. The Constitution does not refer to a foreign affairs power for the simple reason that its framers did not think of foreign affairs powers as categorically or constitutionally distinct from domestic powers. In broad terms, therefore, constitutional disputes over foreign affairs law can and should be approached in the same way as constitutional disputes over domestic law. It follows that the scope and role of the branches in foreign affairs is, as in domestic matters, guided by the vesting clauses of Articles I, II and III: Congress exercises the legislative powers “herein granted” (with legislative powers not granted to Congress by the Constitution reserved to the states or the people), the President exercises the executive power, and the courts exercise the judicial power. The Essay illustrates the implications of this approach by reference to recent and longstanding foreign affairs disputes.

Keywords: constitutional law, vesting, foreign affairs, executive, legislative, judicial, domestic powers

Suggested Citation

Ramsey, Michael D., The Vesting Clauses and Foreign Affairs (October 4, 2023). 91 Geo. Wash. L. Rev. 1513 (2023), San Diego Legal Studies Paper No. 23-036, Available at SSRN: https://ssrn.com/abstract=4592351

Michael D. Ramsey (Contact Author)

University of San Diego School of Law ( email )

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