The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The Article II Executive Power and the Rule of Law (Part 4)

In some contexts, notably foreign affairs, the Constitution creates a default in favor of presidential policy discretion which can be overridden by Congress in the exercise of its constitutional powers.


This post deals with the field in which claims of constitutionally-conferred and inviolable executive discretion are most often made and accepted: foreign relations.  Those claims are buttressed by practical imperatives and the long-standing practice of the government.  From the beginning, Presidents have conducted the foreign relations of the United States, and have exercised considerable discretion in doing so.  Unlike the vast bulk of the federal executive's operations, foreign-affairs activities are not based on an institution or program created by statute, like the Post Office.  Administration and control of foreign affairs as an inherent and inviolable aspect of the executive power can explain that practice.  A conceptualization of executive power that does not attribute to it such strong foreign-relations authority should also be able to explain that practice.

One virtue of the version of the Whig executive power I have described is that it can explain how the President can conduct foreign affairs with no statutory support.  That explanation in turn illuminates another important issue.  If the executive power itself brings with it no discretion, where do Presidents derive the discretion that they have in fact exercised so long as to foreign affairs?  The answer—that discretion arises as the residue of the duties imposed on officials—operates with respect to foreign relations and elsewhere, and so is important in understanding executive power generally.

The Whig executive power enables the President to conduct foreign relations because the international legal personality of the United States is an asset of the government.  The executive exercises the government's legal personality, international and domestic, pursuant to the law.  When the President announces that this country is neutral in a foreign war, or directs that a vote be cast in the Security Council, he is performing the international version of the Whig executive function: administering the government by exercising its juridical powers.

Foreign relations differ from, for example, postal operations, because no statute is needed to create the United States as a person under international law.  International law itself creates that personality, and thereby adds to the legal environment in which American executive officials operate.  In acting for the United States on the international plane, executive officials perform their standard function of administering the government pursuant to the applicable law.

That conclusion does not, however, imply any inviolable executive autonomy with respect to foreign policy.  Executive officials administer the government in accordance with the law.  Insofar as Congress has power to add to the legal environment by adopting laws concerning foreign relations, and has done so, the executive must comply with those laws.  Insofar as Congress cannot or has done so, executive officials have discretion.  As luck is the residue of design, discretion is the residue of duty.  The question of the scope of congressional authority regarding foreign affairs is purely one of enumerated congressional power, not one of invasion of a sphere of presidential discretion conferred by the Constitution.  The Constitution in effect creates a default position in favor of considerable executive discretion regarding foreign relations.  Congress can change that position when it uses an enumerated power to add to the legal environment in which the executive operates.

Whether Congress has an enumerated power concerning any particular foreign-relations decision may be a difficult question.  An important example involves U.S. votes in the Security Council.  Under the U.N. Charter, the Security Council can create binding international-law obligations for member states, so its decisions are very important.  The United States' vote in the Security Council is a juridical asset of the United States, to be administered by executive officials.  A Senator could not cast that vote, but that is not to say that the House and Senate by statute cannot direct how it is to be cast.  Finding a congressional power to direct the U.S. Representative to the Security Council is not easy, but not necessarily impossible.  For example, the second part of the Necessary and Proper Clause may empower Congress in this connection; it gives the legislature power to make laws necessary and proper for carrying into execution all powers vested by the Constitution "in the government of the United States."  Power to act for the United States on the international plane may meet that description, and so be subject to congressional control through legislation concerning its execution.

Foreign relations provide an example of a broader phenomenon: some questions that are often seen as turning on inherent executive power actually turn on the reach of congressional power.  Similar issues arise concerning control of the armed forces.  Presidents have long argued that their status as commander in chief gives them control of military tactics, as opposed to strategy, that Congress may not invade.  Commanders, whether in chief or not, operate in a legal environment as other executive officials do.  Whether Congress may control tactical discretion depends on Congress's power, not the President's.  That question is not an easy one, because none of Congress's powers concerning the forces is well adapted to that function.  Making rules for their "government and regulation" might encompass directing tactics, but its primary point is to establish military discipline.  If the Constitution does create presidential autonomy regarding tactical decisions, that autonomy is a residuum left by congressional power.  It does not come from any affirmative grant, so the issue is wholly about what Congress may do.

Similar reasoning applies to another possible source of executive autonomy: the supposed principle that Congress may not "micro-manage" executive decisions.  At some level of detail, the reasoning goes, decisions become "inherently executive" and so not subject to congressional control.  Executive power is always constrained by applicable law, which may be highly specific.  The Social Security Act requires specific payments to specifically identifiable persons, and if Congress passes a private bill providing for payment to a named individual, the executive's function is to make the payment.  Here too, the question is about legislative and not executive power: in how much detail may Congress legislate?  As private bills show, sometimes the answer is, in as much detail as a proper name.  Perhaps some powers may not be exercised so specifically.  Some highly specific laws are bills of attainder.  Executive power, however, does not limit legislative specificity.  It does not create a sphere of discretion that pushes back against congressional power.  Article II does not, for example, confer some degree of prosecutorial discretion.

The impression that some highly specific decisions are inherently executive in this sense derives, I think, from the belief that they are not legislative because legislation must be general.  I do not think legislation must be general, but the claim that legislatures must operate through general rules concerns legislative power, not executive.  Executive discretion, when not affirmatively granted by some source other than the executive power, is a residuum.  The place to look is congressional power, which is primary here, and not executive power, which is a remainder.