[NOISE] [NOISE] I said in discussing the Federal Executive power I wanted to focus on three questions. First I talk about what made the President act without express constitutional or statutory authority. Second I talk about how can the constitutional problems of administrative agencies best be dealt with? And third and finally I want to talk about, how should decision making authority with regard to foreign policy be allocated? In many ways the Constitution is an open invitation for struggle with regard to the control of foreign policy. The Constitution says so little about foreign policy decision making. It says in Article I Section 8 that Congress has the power to declare war. It says in Article II that the President is the commander in chief of the armed forces. But how do these relate to one another? It says in Article I that it's the Congress that will raise the Army and the Navy. It says in Article II, that it's the President who negotiates treaties, and they must be approved by two thirds of the Senate. But that's basically all the Constitution says about foreign policy. And even if the Constitution said more, it's doubtful that what you've written in 1787 would be used for the world today. After all, in 1787, communication across continents was enormously time consuming and difficult. Required that messages be sent in boats across the ocean, today, we have instantaneous communication. At the time the Constitution was written, a musket was the most powerful weapon. Today, there are intercontinental weapons that the push of a button can destroy a city, or maybe even a country. And so it's not surprising in light of the lack of coverage in the Constitution, the way in which circumstance changed. That disputes have arisen over the course of American history as to authority with regard to foreign policy. An underlying question here is, of the four models of executive power that I described. Which of them is appropriate in the area of foreign policy? Should it be the same model as in domestic affairs, or is foreign policy different? And there are at least a couple of Supreme Court cases, one very recent. That suggest that foreign policy is inherently different than domestic policy. The earlier case was a case called United States v Curtiss-Wright Export, a case from 1936. A border dispute developed in South America, it was at the Chaco border. And it turned out that American munitions companies were selling arms to both sides of the dispute. And Congress passed a law that said that the President had discretion should the President choose to do so. To order that American munition companies stop sending arms to any of the disputants in the Chaco border dispute. President Franklin Roosevelt issued such an executive order. But remember from what I just said that it was at this very time that the Supreme Court was holding. That Congress could not delegate power to the President the Executive Branch. An objection was brought that Congress rather than deciding for itself whether to spend munitions. Had impermissibly delegated the legislative power to the President. The Supreme Court rejected that argument. Justice Sutherland wrote the opinion for the court, he said foreign policy is different from domestic affairs. He said before the Constitution was written the states had authority as to domestic affairs. And they gave some of their powers to the national government in ratifying the Constitution. But Justice Southern said foreign policy inherently belongs to the national government. Said it's important that the President be able to act, quoting the words of James Madison, with secret scene dispatch. The court said it's important that the United States government speak in one voice with regard to foreign policy. And so the argument is that the President has inherent power in foreign affairs in a way that would not exist in the domestic arena. Many have criticized the Supreme Court's decision in Curtiss-Wright. Many have said that there'd be no need for anything in the Constitution about foreign policy if the reasoning of Curtiss-Wright was followed. Because Curtiss-Wright said that the power of foreign policy exists just because it's part of the national government. Critics of Curtiss-Wright say that the framers of the Constitution rejected the idea of royal powers and royal prerogatives. That in foreign policy as much as in domestic affairs, and maybe more so. There need to be checks and balances, this debate has gone on for a long period of time. And in May of 2015, the Supreme Court handed down a case which seems to support the Curtiss-Wright. The fourth approach that I mentioned with regard to inherent power, the case is Zivotofsky v Kerry. From the time Israel became a nation in 1948, every President has refused to take a position as to who is sovereign over Jerusalem. Both Israel and the Palestinians claim to be sovereign over Jerusalem. In 2002, Congress passed a law that said, that if an American citizen had a child born in Jerusalem. The American citizen could designate that the birthplace on the child's passport would be Jerusalem, Israel. President George W Bush signed this into law. But he accompanied a signing statement that he believed this was unconstitutional. The Congress could not infringe on this power of the President. The State Department and the Bush administration refused to comply with the Federal law. The Obama administration has taken the same position. Saying that the statutes unconstitutional and that it wasn't going comply with the Federal law. Menachem Zivotofsky was born to American parents in Jerusalem, Israel. His parents requested that the passport indicate that the birthplace is Jerusalem, Israel. The state Department refused to issue such a passport and Zivotofsky sued. The Supreme Court in a 5 to 4 decision declared the Federal law to be unconstitutional. Justice Kennedy wrote for the court joined by justices Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts and Justice Scalia each wrote dissenting opinions joined by justices Thomas and Alito. Justice Kennedy said admittedly the Constitution is silent in this area. It fits into the realm of what I've described as inherent powers. But, Justice Kennedy said, the Constitution does say the President gets to receive ambassadors from foreign countries. That implies something about the recognition power. Justice Kennedy said, throughout American history, the President has had the sole power to recognize foreign governments. Justice Kennedy invoking and echoing Curtiss-Wright said. That it's important that the United States be able to speak with one voice in an area as sensitive as this. So the court said that the statute limiting Presidential power was unconstitutional. Chief Justice Roberts strongly objected. He made the powerful point that this is the first time in American history that the Supreme Court has ever declared unconstitutional a Federal law limiting presidential power in foreign affairs. He and Justice Scalia in his dissent said this isn't about the power to recognize foreign governments. This is about what goes on the passport, its traditionally been for Congress to decide what's on the passport. Now I mention this case here because this really does take the fourth approach to the question. When can the President act without Constitutional and statutory authority? This says there's a zone of power, albeit one not mentioned in the Constitution, that's given to the President for exclusive control. And if Congress attempts to legislate in that area, that's unconstitutional. Well with this general point in mind, let me focus on a couple of specific areas. Disagreement as to how decision making should be allocated with regard to foreign policy. One area concerns agreements between the United States and foreign countries. The other that I want to talk about concerns the war powers. With regard to agreements between the United States and foreign countries, as I mentioned. Article II of the Constitution says that the President can negotiate treaties, that they have to be approved by two-thirds of the Senate. A couple of interesting questions have come up over the course of American history with regard to the treaty power. One question that's risen, is can the President circumvent this process through the use of executive agreements? Beginning in the time of George Washington, Presidents have used executive agreements. At times they have even been for major foreign policy commitments. An example, in 1940 President Franklin Roosevelt negotiated the Destroyer Basis agreement with England. At the time England was already obviously involved in World War II, but the United States wasn't yet involved. There were many in the United States, including in Congress who did not want the United States government to get involved. They were fiercely isolationist, and so rather than negotiate a treaty with England that the Senate could reject. President Roosevelt entered into an executive agreement. And the deal was that the United States government would give naval destroyers to England. Something they desperately needed for fighting the war. In exchange the United States would get from England a 99 year lease on a military base in Greenland. Those who opposed the United States being involved in World War II vehemently objected. They argued that the President was usurping the treaty power through an executive agreement. But, no court ever found the executive agreement to be impermissible and indeed the executive agreement went into effect. In fact, over the course of American history, never once has the Supreme Court declared an executive agreement to be unconstitutional. Executive agreements as said or used for any purpose. They're often used for major foreign policy commitments but not once have been declared unconstitutional. In the face of President Roosevelt did, in the face of other executive agreements. A Senator by the name of Bricker introduced an amendment, wanted to amend the Constitution to eliminate executive agreements. But the Bricker Amendment never was ratified. Executive agreements exist to this day and no executive agreement has ever been invalidated. The other issue that arose with regard to the treaty power concerns the ability of a president to rescind a treaty. As I mentioned the Constitution says the President can make treaties with consent of two-thirds of the Senate. But it says nothing about rescission of treaties. When I was discussing the Federal judicial power I mentioned a case Goldwater v Carter. It involves how President Jimmy Carter rescinded the United States treaty with Taiwan. As part of recognizing the People's Republic of China. Senator Barry Goldwater brought a lawsuit and said the Senate should have to approve rescission of the treaty. Just like the Senate has to approve the making of the treaty. But the Supreme Court as I explained it earlier said the case was to be dismissed as a political question. The effect of that is that the President had the authority to resend the treaty. Justice Lewis Powell wrote in an opinion saying, if Congress wants to limit the president here Congress can act. Taking what I identified as that third approach to the question of when can the President act without Constitutional or statutory authority? Justice Paul said, President can do this until or unless Congress acts. Now, Senator Goldwater responded by saying his view was it should take two-thirds of the Senate to rescind a treaty. Just like it takes two-thirds to make a treaty, and that therefore it shouldn't take Congress acting to do anything. But the court sided with the President by dismissing the case, an it's been the law ever since. That the president effectively can rescind treaties. In fact, when he was president, George W Bush rescinded the Anti-Ballistic Missile Treaty with Russia. And I remember getting calls from reporters saying, can the President just rescind a treaty? And the answer is Goldwater v Carter seems to indicate that this is a power of the President. So when we think about foreign policy, one area we could talk about is, what's the President's ability to enter into agreements? And this is about treaties and executive agreements.
