The Founders and the President's Authority Over Foreign Affairs

Abstract

Those who argue that the Constitution was intended to give Congress the "preeminent role ... in the formulation of foreign policy," and that the modern Presidential role in foreign policy formulation and execution is a departure from the Founders' intent and precedent, must repudiate or distinguish away most of what the Supreme Court appears to have said on the subject. Further, proponents of the "congressional-primacy" interpretation of the Constitution ignore numerous historical precedents that refute their claim that formulation of foreign policy by the Executive is a recent development. The Founders' own practice and debate in this area displayed a rich mixture of textual, structural, prudential, and precedential arguments that amounts to a deliberate embrace of legal complexity, and should, therefore, make modern scholars wary of simplistic and unprecedented interpretations of the president's authority over foreign affairs.

Keywords: Constitution, foreign affairs, president authority