65 Pages Posted: 24 Feb 2005
This article addresses leading objections to the theory that the President enjoys a residual foreign affairs power by virtue of Article II, Section 1's grant of the "executive Power." Opponents dispute the central proposition that the Article II vesting clause vests any independent executive power, and the secondary proposition that the executive power includes foreign affairs power. Yet these objections to the residual theory suffer from conceptual and historical difficulties that greatly undermine their persuasiveness. First, opponents have no competing theory of the Constitution's text, never answering basic questions: Did the Constitution, as originally understood, completely allocate foreign affairs power, and if so, how? Second, opponents of the residual theory rhetorically inflate the powers it would locate in the President. Critics protest that the Framers did not wish to constitute the President as a king. The residual theory does not lead to presidential supremacy but instead ensures a balanced and divided allocation of foreign affairs powers. Third, critics associate the residual theory with some ill-defined claim of historical or logical inevitability. In fact, the residual theory makes no claims about what the Framers had to do. Instead, it tries to make sense of what they actually did - vesting the executive power in the President - by examining the historical meaning of the phrase "executive power" in the eighteenth century, and by examining how early statesmen, such as Thomas Jefferson, described and justified the President's foreign affairs powers. Finally, to the extent opponents of theory engage these claims, they have little text or history on their side. Despite prodigious efforts, no one is able seriously to dispute that eighteenth century political writers used the phrase "executive power" to include foreign affairs power; and that Americans adopted this vocabulary in discussing the Continental Congress, during the drafting and ratifying debates, and in describing President Washington's assertion of key foreign affairs authorities.
Keywords: foreign affairs powers, Constitituion, Article II Section I, executive power, residual theory
JEL Classification: K00, K10
Suggested Citation: Suggested Citation
Prakash, Saikrishna and Ramsey, Michael D., Foreign Affairs and the Jeffersonian Executive: A Defense. Minnesota Law Review, 2005. Available at SSRN: https://ssrn.com/abstract=672751