Explaining the president’s foreign affairs powers

In the case involving the Trump administration’s curtailment of the U.S. Agency of International Development (USAID)’s funding, the Justice Department is asserting that such actions fall under foreign affairs powers granted to the president by the Constitution.

In a petition to the Supreme Court filed in Department of State v. AIDS Vaccine Advocacy Coalition, Acting Solicitor General Sarah M. Harris has made several arguments why President Donald Trump can pause USAID payments while they are being reviewed, including “for programmatic efficiency and consistency with United States foreign policy.”

Harris also argued that the request to resume USAID payments “intrudes on the prerogatives of the Executive Branch. The President’s power is at its apex—and the power of the judiciary is at its nadir—in matters of foreign affairs.”

The AIDS Vaccine Advocacy Commission has argued USAID funding decisions by the Trump administration are an “unconstitutional exercise of presidential power in contravention of congressional will and as an arbitrary and capricious agency action.”

According to the Congressional Research Service, Congress established the USAID program in 1961, and it made USAID an “independent establishment” outside of the State Department in 1988. It annually appropriates funds in accordance with the Foreign Assistance Act of 1961.

For now, the Supreme Court has allowed a partial resumption of USAID spending as it considers the case. While the merits of the USAID case are debated, questions surrounding the extent of the president’s foreign affairs powers will remain relevant to other overseas-related activities the executive branch is undertaking, including setting tariff rates.

The Origins of the President’s Foreign Policy Powers

The debate over the scope of the president’s foreign affairs powers dates back to the 1787 Constitutional Convention in Philadelphia, where the delegates in attendance attempted to define the nature of the executive branch. After much discussion, the founders agreed on a single person as the “President of the United States” who would be chosen for office by “electors.” The electors in turn would be chosen as a result of state elections voted on by the people.

The president’s powers were enshrined Article II, Section 1 of the Constitution, which states that “the executive Power shall be vested in a President of the United States of America.” Article II also gives the president the ability to negotiate treaties, with the advice and consent of the Senate, and to appoint ambassadors and other “public Ministers and consuls,” which therefore grants the president a number of foreign affairs powers.

However, Congress also has foreign relations powers, including its power to approve treaties negotiated by the president. The Constitution allows Congress to regulate foreign commerce, impose import tariffs, and raise revenue. In particular, Article 1, Section 8  gives Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

Where the foreign affairs powers are shared between the president and Congress, and where they remain separate has been a topic of discussion since the Founding era. In 1793, Alexander Hamilton and James Madison openly disputed the president’s powers in foreign affairs after President George Washington issued a proclamation that the United States would remain neutral in the conflict between France and Great Britain.

In what became known as the Pacificus-Helvidius Debates, Hamilton (writing as Pacificus) believed that “the general doctrine then of our Constitution is, that the executive power of the nation is vested in the president; subject only to the exceptions and qualifications which are expressed in the instrument.” When it came to the foreign affairs power, Hamilton said “a correct and well-informed mind will discern at once that it can belong neither to the legislative nor judicial department and, of course, must belong to the executive.” He reasoned that: “The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties.” Moreover, he wrote, “It is equally obvious that the act in question is foreign to the judiciary department of the government. The province of that department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases.”  

Madison, writing as Helvidius, argued otherwise: “If we consult for a moment, the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers.” For example, he added, “To say then that the power of making treaties which are confessedly laws belongs naturally to the department which is to execute laws, is to say that the executive department naturally includes a legislative power. In theory, this is an absurdity—in practice a tyranny.” Madison said it remained to be proven that Constitution delegated solely the powers of making war and peace to the president. “It will not be pretended that this appears from any direct position to be found in the instrument,” he noted.

Noted Court Cases

Well over a century later the Supreme Court addressed the scope of presidential foreign affairs powers in the landmark case, United States v. Curtiss-Wright Export Corporation (1936). Curtiss-Wright, a weapons manufacturer, violated a neutrality ban by selling weapons to Bolivia in a conflict between the country and Paraguay. President Franklin Roosevelt had issued the ban pursuant to powers that had been delegated to him by a joint resolution of Congress. Curtiss-Wright argued that the delegation of power was unconstitutional and that only Congress could exercise such powers.

In his 7-1 majority decision, Justice George Sutherland pointed to a debate on the floor of the House in 1800 and remarks from then-Rep. John Marshall of Virginia: “The president is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” said Marshall, who later became chief justice of the Supreme Court.

Justice Sutherland also said the president could make decisions not specifically authorized by Congress in conducting its wishes:  “In view of the delicacy of foreign relations and of the power peculiar to the president in this regard, Congressional legislation which is to be made effective in the international field must often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved,” he wrote.

More recently, in Zivotofsky v. Kerry (2015), the Supreme Court considered the constitutionality of a law enacted by Congress that instructed the State Department to designate the place of birth on a passport as “Jerusalem, Israel,” at the request of the parents of a United States citizen born in Jerusalem.

In his majority opinion, Justice Anthony Kennedy recounted that Congress was involved in many foreign relations actions involving commerce, naturalization, declaring war, and approving treaties and ambassadors.

“The text and structure of the Constitution grant the president the power to recognize foreign nations and governments. The question then becomes whether that power is exclusive,” Kennedy wrote. He believed it was: “Judicial precedent and historical practice teach that it is for the president alone to make the specific decision of what foreign power he will recognize as legitimate.”

But Kennedy also noted Congress had the ability to react to a president’s decision in such matters. “There may be consequences. Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress,” Kennedy concluded.

One long-term foreign relations congressional power that had been delegated to the president by Congress is the power to levy tariffs. In 1934, Congress passed the Reciprocal Trade Agreements Act, which gave President Franklin D. Roosevelt the ability to change tariff rates by 50% and negotiate bilateral trade agreements without additional approval from Congress. The Trade Act of 1974 gave additional powers to the president to negotiate tariffs and non-tariff barriers without congressional approval, unless an agreement contains non-tariff barriers.

Scott Bomboy is the editor in chief of the National Constitution Center.