The Evolution of Presidential Power Over Foreign Affairs

The President of the United States holds more power than any other person in the country. Since the President holds so much power, it is very important to understand: 1) where that power comes from; 2) the reasoning behind giving the president that power; and 3) the historical patterns which contribute to changing the President's power. In this article, I will go through the history of presidential power over foreign affairs in order to determine the extent of his power today and the historical patterns which shape a President's power at any given time.

The President's powers over foreign affairs stem from Article II Section 2 of the Constitution. Article II provides that "[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". U.S. Const. art. II, § 2, cl. 2. The Constitution is incredibly vague on the subject, but Article II has often been interpreted as giving the President plenary power over foreign affairs.

For example, in the 1936 landmark case U.S. v. Curtiss-Wright Corp., the Supreme Court ruled that the President has"plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations" U.s. v. Curtiss-wright Corp, 299 U.S. 304, 320 (1936). Though it is not explicitly mentioned anywhere in the Constitution that the President has plenary power over foreign affairs, the Supreme Court ruled that the need for tact and secrecy necessitated the President to be able to make decisions without being constrained by the other governmental branches. The Supreme Court ruled that the only limit to the President's plenary power over foreign affairs was that they "must be exercised in subordination to the applicable provisions of the Constitution". U.s. v. Curtiss-wright Corp, 299 U.S. 304, 320 (1936). In other words, the Supreme Court ruled that the President had unlimited power over foreign relations as long as he did not do anything which explicitly violated the Constitution. It is important to note that the Supreme Court was very willing to give the President vast amounts of power at the time of Wright, which was just before the outbreak of World War II. This does not seem like much, but over the years a clear pattern has been established wherein the President's powers over foreign relations are greatly expanded during troubling times.

After the Iranian hostage crisis in 1981, the President made an executive order to seize all Iranian assets in the United States without the approval of Congress. Normally, Congress would have to approve of such an action, but in Dames Moore v. Regan the Supreme Court ruled that "though those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate." Dames Moore v. Regan, 453 U.S. 654, 679 (1981). The Supreme Court allowed the President to make an executive order based on an assumption that Congress would have approved based on similar legislation that it had previously passed. This shows another broadening of the President's power over foreign affair, as the Supreme Court allowed the President to make an executive order that was not permitted by the Constitution. The Supreme Court's reasoning for allowing the President's power to be broadened was that the Iranian hostage crisis was an emergency situation and that in order to be able to handle the situation quickly and efficiently, the President's power over foreign affairs needed to be expanded. This is yet another example of the President's foreign affairs powers being increased during turbulent times.

The Supreme Court finally reduced the President's power over foreign affairs in Hamdi v. Rumsfeld. In 2004, a United States citizen was captured by United States military forces in Afghanistan with a gun in hand. He was held indefinitely by the President, who claimed to have plenary power over the citizen because it was a foreign issue. The Supreme Court ruled that the President could not undermine the basic right to habeas corpus that all U.S. citizens have, even though the President has plenary power in foreign affairs: "We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004). The Supreme Court compromised, however, and allowed the President to detain the U.S. citizen until the end of the "war on terror". Despite this compromise, this case is important because it shows the Supreme Court finally putting limits on the President's plenary power regarding foreign affairs.

The historical progression exemplified by the preceding three cases shows how specific circumstances during a particular time can shape the way that the Constitution is interpreted. In the case of the President's power over foreign affairs, it is clear that the Supreme Court has expanded the President's foreign affairs powers to better cope with turbulent situations. A President with plenary foreign affairs powers can act more quickly and decisively than a Congress which is likely to have many different opinions and votes before it can come to a decision. In some cases, giving the President plenary power is helpful, and contributes to the safety of the United States.

However, we must also realize that the more we allow the President to have plenary power, the less democratic our government will be. Our three branch governmental system depends on checks and balances to remain as democratic and free of corruption as possible. When one branch, such as the President in the case, assumes plenary power, tyranny is risked. So, we must walk a tightrope between a completely democratic government and maintaining the safety of the nation. We must be willing to give the President some additional powers during troubling times, but we must also realize that these are additional powers and are only to be used in the most troubling of times. The President should not be given powers if they are not needed to maintain the safety of the nation. Too often, the United States has given Presidents plenary power over foreign affairs during turbulent times and forgotten to take the powers back in times of peace. In order to maintain a democratic society, we must remember to reestablish checks on the President when he no longer requires plenary power over foreign affairs.