This Article analyzes the claimed 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. In the most recent act of this historical drama, President Bush last year issued a surprise “Determination,” which asserted that executive powers implied from Article II of the U.S. Constitution permit the president both to create and to unilaterally enforce the foreign affairs obligations of the United States under international law.
The Article first sets the context with a summary of the wide array of practical powers of the president in matters of foreign affairs. Unfortunately, the Constitution’s text provides only limited guidance on the president’s legal powers on this score. Nonetheless, as the Article describes, the supposed constitutional silence has motivated numerous presidents to assert a domestic lawmaking authority to advance executive branch policy preferences in foreign affairs. The broad claims of presidential power by the present Bush Administration have revived these historical controversies with particular vigor.
With this background, the Article develops three core principles of executive lawmaking on the foundation of the foreign affairs obligations of the United States: (1) that the Constitution does not vest in the president a general, discretionary lawmaking power in foreign affairs, even to enforce formal rights recognized in or formal obligations owed under international law; (2) that the president nonetheless may obtain such a power through an express or implied delegation from the U.S. 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.