This is the fifth of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last several posts, I discussed examples of foreign affairs authority that have been heavily informed by historical practice. In this post, I address the concern that the historical gloss approach to constitutional interpretation unduly favors presidential authority.
The three examples that I’ve covered in my prior posts all involve a growth of presidential foreign affairs power over time, and, as I discussed in those posts, historical gloss is a mainstay of the executive branch’s constitutional reasoning.
As compared with Congress, the executive branch also has an easier time creating non-judicial precedent, given that it is controlled by a single party and faces lower collective action hurdles. Not surprisingly, therefore, the most common objection to a gloss-based approach to the separation of powers is that it enhances executive power.
One difficulty in assessing this objection is that it is not clear what the baseline should be in determining whether the executive has too much foreign affairs power. Should it be the amount of authority that George Washington had (or thought he had)? There are some obvious problems with using that as the baseline, including the fact that the Washington administration was itself unsure about the scope of its foreign affairs powers and Washington was conscious that he was setting non-judicial precedent that might become historical gloss.
It is certainly true that, in the aggregate, modern presidents have more foreign affairs authority than earlier presidents. Much of this development is probably due to factors other than the accretion of practice: having access to a large standing army, for example, as well as being the head of state of a powerful country with diplomats and intelligence operatives around the world. Some of it also stems from changes in public and congressional expectations about the presidency.
Whatever the causes, it is not self-evident that the growth in executive authority is bad, given that the foreign affairs challenges that the United States faces in the modern era are substantially different from those of the late eighteenth century. The biggest single contributor to gloss-based presidential authority was probably Franklin Roosevelt, yet many regard him as one of our best presidents.
It is also worth bearing in mind that many presidential actions in foreign affairs today (the imposition of sanctions, the enforcement of immigration policies, the provision of foreign aid, and the making of congressional-executive agreements, to name just a few examples) are connected to statutes, so it is not as if Congress is absent from the picture. As Jack Goldsmith and I recently observed in an article about the effect of the nondelegation doctrine in foreign affairs, “Despite the perennial debates about the President’s constitutional authority, most important actions that presidents take today, including in foreign affairs, rest at least in part on statutory authorization.”
In any event, as my book discusses, Congress also benefits from gloss. That is, practice has helped to settle some of its authority in the foreign affairs area, even though that authority is not clear from the constitutional text.
To take just a few examples, practice has supported Congress’s power to regulate U.S. neutrality (since 1794), the Senate’s power to condition its consent to treaties with “reservations” (since 1795), Congress’s power to regulate passports (since the 1850s), and Congress’s power to regulate immigration (since the 1870s).
Gloss also suggests that there are some foreign affairs actions that presidents cannot do on their own. This includes, for example, extraditing criminal suspects to other countries, imposing trade restrictions, deporting non-U.S. citizens, and funding foreign affairs initiatives.
Moreover, as I emphasize in the book, historical gloss is usually supportive only of independent presidential authority, not exclusive authority (that is, authority that cannot be regulated by Congress). There is often practice indicating that presidents can take actions in foreign affairs, but almost never much practice showing that Congress cannot regulate those presidential actions.
In fact, to take the three examples that I’ve discussed in my posts, Congress has at times regulated executive agreements, treaty terminations, and war powers. It may be that, in the modern era, a broad presidential power of initiative that is subject to congressional restriction is a good (or at least acceptable) approach.
As I emphasize in the Conclusion of the book, Congress is an important player in foreign affairs:
Congress, no less than the President, seeks practical and principled constructions of the Constitution that are informed by the lessons of the past. Indeed, given the frequent claims of an imperial presidency, it is easy to forget that Congress regulates today across a vast spectrum of foreign affairs topics, and its ability to do so is informed by practice. In many instances, to be sure, Congress chooses to delegate discretionary authority to the executive branch, but what is delegated can be withdrawn or cabined.
I acknowledge in the book that our system of checks and balances does not always work well, but I contend that the picture is not as bleak as is sometimes suggested:
[E]ven our partisan-laden system can and sometimes does produce needed separation of powers reforms. There was a spate of such reforms, for example, near the end of the Vietnam War. As I was working on this book, Congress enacted its most sweeping transparency reforms relating to executive agreements in the past fifty years. Far from impeding such efforts, the historical gloss approach to constitutional interpretation invites them.
Finally, I note that critiques of historical gloss tend to be highly selective, and I argue that it is important to consider the larger picture:
It is hard to imagine what our constitutional law would look like without gloss, were that even possible. In the foreign affairs area, if presidents had not developed gloss-based authority, perhaps they would terminate fewer treaties and engage in fewer military actions. And perhaps that would be good, although it is worth noting that, since the Korean War, the two U.S. wars that are generally viewed as the most problematic in terms of their foreign policy justifications and their costs to the United States—the Vietnam War and the 2003 Iraq War—were both authorized by Congress. But it might also mean that presidents would make many fewer international agreements, including important agreements facilitating trade and establishing international institutions, and that U.S. uses of force in the service of international peace and security, including humanitarian intervention, would be less likely. The fact that it is difficult even for informed experts to have confident judgments about such matters is a reason for courts to be cautious about upsetting settled practices.
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