Executive Aggrandizement in Foreign Affairs Lawmaking

Abstract

This article analyzes the power of the President to create federal law on the foundation of the executive's status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise "Determination" which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.

The article first sets the legal and factual context for the lawmaking powers of the President in foreign affairs. After a brief review of President's constitutional powers in foreign affairs, it reviews the historical assertions of executive lawmaking authority over foreign affairs lawmaking. The initial part of the article then examines the recent revival of the controversy by the Bush Administration in its claim to a unilateral, discretionary power to define and enforce international law.

The article then develops three core principles of executive lawmaking on the foundation of the formal foreign affairs obligations of the United States. Briefly, these three principles hold: (1) that the Constitution does not vest in the President a general lawmaking authority in foreign affairs, even to enforce formal rights or obligations owed to other states under international law; (2) that the President nonetheless may obtain such a power through an express or implied delegation from Congress, including through the vehicle of a treaty; and (3) that the Constitution itself delegates to the President certain powers in foreign affairs, but the domestic incidents of these powers are both few and limited, and must yield to congressional power in any event.

Keywords: aggrandizement, foreign affairs, constitutional powers