The Executive Power over Foreign Affairs

This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the U.S. government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitution contains enormous gaps in foreign affairs that must be filled by extratextual considerations. In particular, modern scholarship incorrectly regards the text as largely unhelpful in resolving three central foreign affairs puzzles: (1) What is the source of foreign affairs powers conventionally believed to lie with the President but apparently beyond the President's explicit textual powers? (2) What is the source of Congress's authority to regulate foreign affairs matters that do not seem encompassed by Congress's enumerated powers? (3) How should one allocate foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the powers to set foreign policy, to enter into executive agreements, and to terminate treaties?