Sole Organ?

Lost in the recent debate about the President's authority to order wiretapping of American citizens without warrants is the broader question of the President's Constitutional authority in the realm of foreign affairs. Thus it is refreshing when a respected commentator finally picks up on the point. Today, George Will, a Conservative columnist for the Washington Post, finally picks up this point writing:

"Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs." That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to 'take care that the laws be faithfully executed.'"

Non lawyers may not recognize the language Will is referencing. The language is from United States v. Curtiss-Wright, a little known, but important, Supreme Court case from 1934. In Curtiss-Wright Justice Sutherland wrote that:

[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates....The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.

Unfortunately, this language has become the starting point for any discussion of executive power in foreign affairs - be they affairs of security, commerce, or regulatory policy. Why unfortunately? Because not only was Justice Sutherland's opinion dicta, and therefore, not binding, his theory was badly reasoned. The constitution does not provide for the President to be the sole actor on foreign policy; rather it carefully structures the power so that the President can be held accountable by the legislature. This is why the President needs approval from the legislature when he completes international agreements, and this is why the legislature can severely undermine the ability of the President to negotiate internationally through the use of its purse string power, appointments, and other powers.

Over time, the balance of power between the President and the legislative branch has shifted to reflect the priorities of the day. Thus, in the late 1800 the Congress increasingly deferred to the President in the area of international trade policy. Similarly, as David Golove and Bruce Ackerman have shown, in the 1940s the legislative branch approved international agreements through the use of fast track procedures so as to give the President additional leverage in the international arena. What has never happened, however, is the President having a blank check in foreign affairs; rather the relationship was always structured so as to protect the twin goals of accountability and efficiency.

Today, it seems the Executive branch sees itself as solely responsible, and therefore, inherently not accountable to anyone in the area of foreign affairs. Not only does this make for bad policy, but it is also dangerous for our constitutional order and its nice to see someone as respected as Will commenting on it. Now its time for Congress to join. Will they?