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Identify and explain powers that the United States Constitution gives to the President and Congress in the area of foreign affairs.
Focus Question: What are the powers of the President and Congress in foreign affairs?
For more on foreign policy, see
Foreign trips of US Presidents
In line with its overall philosophy of checks and balances, the United States Constitution separates foreign policy power between the Executive and Legislative branches.
The President is the commander in chief of the armed forces, negotiates and initiates treaties, meets with foreign leaders, appoints ambassadors, and sets the agenda for goals and policies involving foreign nations.
Congress must ratify treaties, confirm ambassadors, declare war, and can potentially manage foreign policy through legislation.
In practice and through most of American history, the President and the Presidential administration have been the key players in American foreign policy, more so than Congress and While Congress does hold some power in declaring war, ratifying treaties, confirming ambassadors.
As always, actions of both these branches in foreign affairs are subject to the oversight and review of the Judicial branch, although Supreme Court involvement in foreign policy has been very rare.
Of all U.S. Government roles and responsibilities, foreign policy is unique in that it is nearly exclusively carried out by the federal, as opposed to the state, governments. The United States' ever increasing impact and influence on global affairs since the Constitution's writing has also made it an area of significant dispute in Constitutional interpretation.
Foreign Policy Today
The U.S. Department of State: Foreign Policy Roles of the President and Congress
This 1999 report from the U.S. State Department explains the Constitutional roles of the Executive and Legislative branches in determining U.S. foreign policy, and gives a modern take on how these roles are interpreted and put into practice. In its summary, the report identified six roles for both the President and Congress:
Graph to the right shows the Constitutional powers of the Legislative, Executive, and Judicial branches in U.S. foreign policy. Note the primacy of the executive branch in this area.
The President/Executive Branch can determine foreign policy through...
1) -- responses to foreign events
2) -- proposals for legislation
3) -- negotiation of international agreements
4) -- policy statements
5) -- policy implementation
6) -- independent action.
Congress/the Legislative Branch can determine foreign policy through...
1) -- resolutions and policy statements
2) -- legislative directives
3) -- legislative pressure
4) -- legislative restrictions/funding denials
5) -- informal advice
6) -- congressional oversight.
As mentioned, these roles and responsibilities are reflective of the way U.S. foreign policy is formulated in practice today. The explicit mentions of foreign affairs in the Constitution do not explicitly mention all of these roles.
Source: Grimmett, Richard F. "Foreign Policy Roles of the President and Congress". U.S. Department of State. June 1, 1999.
Foreign Policy in the Constitution
Under Article II, Section 2, Clause 1 of the Constitution, the President is Commander in Chief of the United States Armed Forces:
President shall be Commander in Chief of the Army and Navy of the United States and of the Militia of the several States, when called into the actual Service of the United States."
Article: The U.S. President As Commander-in-Chief
The Constitutionally mandated role as commander-in-chief gives the President full control over the actions and operations of the United States military. In military operations, Congress is only given the responsibility to declare war. Historically, the President has used the role as commander-in-chief to mobilize the U.S. military in large scale military action without a Congressional declaration of war (most recently, U.S. military engagement in Libya, Afghanistan, Iraq, Bosnia, Somalia, Grenada, Vietnam, and many more).
President Barack Obama with Russian President Dmitry Medvedev, July 6, 2009
Treaty Clause & Appointments Clause
Article II, Section 2, Clause 2 of the Constitution allows the President to make treaties with other nations, with the consent of two thirds of the United States Senate. This is called the "Treaty Clause":
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..."
Treaties can take many forms, but usually are agreements with other nations or groups of nations in the formulation of international policy. A recent example is the Arms Trade Treaty, passed in April 2013 to regulate the international trade in conventional weapons. It was supported and negotiated by President Barack Obama with the United Nations, and passed by the UN with a 154 to 3 vote (Syria, Iran, and North Korea were opposed).
More about the 2013 UN Arms Trade Treaty
The "Appointments Clause" allows the President to appoint certain officials, including ambassadors, with "the advice and consent of the Senate," though without a two thirds supermajority:
"[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
War Powers Clause
Under Article I, Section 8, Clause 11 of the Constitution, Congress has the exclusive power to declare war:
"[Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Tonkin Gulf Resolution
Congress has declared five wars under this clause: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Congress has not declared war since the 1940s, although the United States has been engaged in military conflicts since then.
In 1964, during the Vietnam War, Congress passed the
Tonkin Gulf Resolution
, giving President Lyndon B. Johnson the power to use military force without the declaration of war by Congress:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled
, That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression
Nixon signed the repeal of the Resolution in 1971 and it was replaced in 1973 by the
War Powers Resolution
, which reaffirmed the President's need for Congressional consent in the use of military force. Still, since 1973 the United States has engaged in multiple military actions commonly referred to as wars without a Congressional declaration of war.
In 1990, 54 members of Congress claimed that President George H.W. Bush violated Article I, Section
The Iraq War was authorized by Congress without a declaration of war with passage of the Iraq War Resolution in October 2002. This Los Angeles Times headline shows the initial U.S. attack in March of 2003.
8, Clause 11 and the War Powers Resolution by starting military action in Iraq. The case,
Dellums v. Bush
, was tried in the D.C. Federal District Court. Dellums (representing the 54 Congressmen) lost the case on the grounds that Bush's actions were not war-like enough.
In October 2002, Congress passed the "Iraq Resolution" (formally the Authorization for Use of Military Force Against Iraq Resolution of 2002), which gave President George W. Bush power to use military force in Iraq, supposedly to prevent the development of weapons of mass destruction by the Iraqi regime of Saddam Hussein. The Resolution passed 297-133 (with 3 representatives not voting) in the House and 77-23 in the Senate.
Text of the Official "Iraq Resolution"
Use of military force without a Congressional declaration of war or a Congressional resolution (as in the Libyan intervention of 2011) has caused considerable controversy.
Some have written
that this is in violation of the Constitution, though the President
has defended his actions
as actually in line with the War Powers Resolution
Foreign Commerce Clause
Article I, Section 8, Clause 3 grants Congress the power to regulate foreign commerce:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
Often this is interpreted as three separate powers and even three separate clauses: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause. Judicial review and controversy over the clause has usually been related to Congress' jurisdiction to regulate affairs of state governments, and the federal government's power over Indian tribes (as well as their status as "foreign nations" themselves). "Commerce" with foreign nations has often been managed and regulated through Congressional legislation or by treaties, often negotiated and initiated by the Executive Branch.
Click here for the
United States Senate Committee on Foreign Relations
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