The New York Review of Books

To the Editors:

It is a shame that Mr. Draper did not heed Goethe’s admission that “no one would talk much in society, if he knew how often he misunderstands others.” If he had, the tenor, length and substance of his May 17, 1990 reply to our defense of the Presidency in this journal would have been far different [“The Constitution in Danger: An Exchange”]. The crux of Mr. Draper’s lamentation, that we supposedly advocate a ” bifurcated presidency’—one that shares power with the other two branches of government in domestic policy but rejects the sharing of power in foreign policy”—is quite misleading. What we (and countless other commentators) do espouse is fidelity to the central principles of constitutional government, as designed by the Framers—a system of separated powers, featuring an equilibrium amongst its components. This equilibrium is maintained primarily through a device of checks and balances, whereby each coordinate branch of government has constitutional tools at its disposal to protect itself against the ambitions of the other branches. In fact, the form of government devised by the Framers may owe as much to their study of Newtonian theories of counterpoise, as to their analysis of political philosophy and history.

As we stated, in this scheme the Constitution delegates to each branch of government specific and distinct duties and functions. In the realm of foreign affairs, we pointed out that the President possesses a “general” foreign policy power, which is discretionary, designed to meet the challenges of unforseen necessities, and thus by nature must be undefinable in its parameters. Derived from the vesting clause of Article II, section 1 of the Constitution, this foreign policy power is nothing more than a constitutionalized version of the Lockean prerogative, which certainly encompasses the right to initially set foreign policy, including the plenary (unfettered) right to negotiate and deal with foreign powers—the diplomatic representational authority—as well as the ability to respond to the exigencies of international life, if necessary, through covert intelligence operations and military actions.¹

Despite Mr. Draper’s contentions, we never suggested, much less maintained or urged, that Congress play no foreign policy role. In fact, we enumerated those powers historically considered to belong to the Executive that were left to Congress by the Philadelphia Convention. The Framers thought that these were powers that were legislative in nature, at least as far as the republicanized Executive was concerned. Accordingly, these powers found their way in Article I’s laundry list of legislative authority.² Perhaps the most important of these enumerated legislative powers is Congress’s authority to declare war. Even more important, however, as Mr. Draper rightly points out, is Congress’s checking power, particularly the “power of the purse” and the impeachment power. Such authority, when legitmately used,³ obviously may thwart a presidential policy.

Yet, all this does not mean that there exist “shared powers”—shared, in the sense of the branches of government possessing the very same powers or authority. Understandably, the term “shared powers” is one of the most confusing in constitutional jurisprudence. Mr. Draper’s discourse on the subject, unfortunately, muddles the issue even further. Draper, for example, cites Richard Neustadt as observing that the Philadelphia Convention “created a government of separated institutions sharing powers,” and that the “three branches share a responsibility for policy, though in different ways, and must cooperate in working it out.” In a certain sense this is true; but it in no way contradicts our premise. The Constitution, we contend, created in particular areas a regime of distinct branch responsibilities and prerogatives. Indeed, if that were not the case, our government could not function. As we originally stated, “a system of shared or overlapping powers would be one of constitutional anarchy (a possibility the highly rational and educated Framers would have rejected as unworkable).”⁴ To be sure, the distinction between branches of government sharing an identical set of constitutional powers that can be freely mixed and matched according to the political whims of the moment, and the same branches of government possessing distinct and separate powers that may bear upon the same object of governance (e.g., war), is subtle—although it should be evident to a person of Draper’s erudition. The term “shared powers” is too often used sloppily, as a shorthand for the “checks and balances” that require each branch to cooperate with the other. The existence of checks and balances, however, does not imply that each branch has the very same rights and responsibilities.

Why is this debate over the semantics of the term “shared powers” so important? Far from being a mere academic quibble, Mr. Draper’s advocacy of the shared powers doctrine as one requiring both political branches of government to possess the same powers rejects the core constitutional notion that the President possesses the general foreign affairs prerogative. In contrast, we, and numerous other students of the Constitution, believe that the Constitution textually and historically delegates this power to the unitary Executive. To put the revolutionary import of Mr. Draper’s claim in perspective, it would suffice to point out that he denies the President the predominant role in foreign policy decisionmaking that virtually every President has claimed. In essence, the Draper doctrine would elevate the 535 members of Congress to the position of juniorvarsity Secretaries of State and would require executive consultation with Congress, regardless of the need for secrecy, dispatch and national security, in virtually all foreign policy matters—an outcome that would be disastrous and historically anomalous.⁵

Mr. Draper’s philippics against our argument that historical events and case law support the view that the President possesses a plenary foreign affairs power, amply demonstrate William James’s axiom that “there is no worse lie than a truth misunderstood.” We will only address the most glaring examples:

1. The assertion that Alexander Hamilton in the “Pacificus” articles never contended that the President possessed a plenary foreign affairs power, and in fact “gave expression to an early version of ‘shared powers”’ (Draper’s words) is nothing less than incredible. Hamilton was the primary advocate of a strong executive in the early years of our Republic and the “Pacificus” articles amply demonstrate this. Hamilton contended that Article II, Section 1 of the Constitution vested all executive power (including the general foreign policy and diplomatic prerogatives) in the office of the President “subject only to the exceptions and qualifications which are expressed in the instrument.”⁶ One of these exceptions is Congress’s power to declare war. However, no matter how important the power to declare war may be, this exception does not in any way, as Mr. Draper contends, negate the fact the President possesses a general foreign policy power. In addition, the fact that Congress passed a neutrality act in 1794, one year after Washington’s neutrality proclamation, is of little importance to our debate. That act was directed at private citizens and could not constitutionally have restricted the President’s ability, when exigencies arose, to command the US armed forces to prosecute a limited, undeclared war.

2. Concerning the meaning of the phrase “sole organ” of foreign relations, Draper states the obvious when he notes that the phrase refers to the instrument of communication between the United States and foreign powers. But this does not end the debate. The President cannot be considered a mere conduit of information, the agent for the legislative power. To consider the Executive the agent of Congress would be to adopt the view that the Framers created a parliamentary system of legislative sovereignty—a view which simply ignores history. (See The Federalist.) The President is the “sole organ” of foreign relations not simply because he is a more effective mouthpiece than Congress, and there is a need for the nation to speak with one voice, but because he possesses a general foreign policy prerogative.

3. Mr. Draper still fundamentally misunderstands the implications of the Youngstown case,⁷ as well as our sole reason for invoking it. Our intent was to rebut Draper’s own contention that, because Youngstown‘s plurality, concurring and dissenting opinions failed to refer to the Curtiss-Wright⁸ doctrine, they somehow invalidated it. The notion that Curtiss-Wright died through neglect is simply untrue; the case has been cited by a number of subsequent Supreme Court decisions. As we pointed out, it was because the Youngstown analysis is applicable only in the domestic context that the case did not refer to Curtiss-Wright‘s analysis of the President’s prerogatives. Interestingly enough, Corwin, whom Mr. Draper so evidently venerates. wrote an article,⁹ chastising the Youngstown Court for failing to acknowledge that in times of national emergency the President may possess an inherent constitutional prerogative to override inconsistent statutory proscriptions—even in a domestic context. Despite our alleged excessive pro-executive zeal, we do not go as far as Professor Corwin in this context.

4. As for Helms’s critique of the Moynihan amendment, Mr. Draper also seems to be thoroughly confused about our discussion of what the power of the purse is, and is not. To begin with, as we stated above, congressional appropriations power is not absolute, and may not be used to impede the exercise of the core functions of the Executive or Judicial Branches. This, of course, only applies to US moneys appropriated by Congress. The issue of third-party funding of various foreign policy causes is quite separate and distinct. Clearly, Congress cannot prohibit such Presidential activities as imploring one foreign country to help another foreign country or foreign movement, whether with money or any other form of help, no matter how offensive the Congress might find that country or movement to be. To argue otherwise, would imply that, far from being even a congressional co-equal, the President is a mere agent of Congress. Equally clearly, if the foreign funds are turned over to the United States, they would become US government property, and would be subject to any legitimate restrictions Congress saw fit to impose. A more complex situation arises when foreign funds are neither transmitted directly to a foreign recipient, nor to the United States government, but some Executive Branch officials appears to have the ability to influence their disposition. Arguably, in this situation, the dispositive issue would be whether, under common law principles, the degree of control exerted by the Executive Branch officials involved would suffice to vest title to the funds in the United States.¹⁰

Despite our fundamental disagreements with Mr. Draper, we all concur that the constitutional issues involved are highly important, especially as our country enters the twenty-first century, replete with both international opportunities and challenges to our national security. We salute Mr. Draper for performing a valuable public service by helping to focus a spotlight on the foreign policy powers of the President in the American constitutional system. We hope that these exchanges have helped to illuminate for your readers the issues involved.

Lawrence J. Block
Senior Attorney-Advisor
Office of Policy Development
Department of Justice
David B. Rivkin, Jr.
Legal Advisor to the Counsel to the President