Erika Cher P. Potian2010-20227I-A Requested by: Atty. Emerson Baez, Legal Bibliography Professor From: Erika Cher P. Potian Date Submitted: November 8, 2014Re: Limits to the constitutionally assigned sphere of discretion of the (US) President concerning foreign relation mattersQUESTION PRESENTED Whether or not there limits to the constitutionally assigned sphere of discretion of the President concerning foreign relation matters. BRIEF ANSWER Yes, there are limits to the constitutionally assigned sphere of discretion of the (US) President concerning foreign relation matters. This is so because of the Separation of Powers doctrine. Also, in some instances, in the exercise of its Constitutional Powers, Congress may control the executive. The President and the Senate, pursuant to independent powers such as the treaty, have concurrent appointment, diplomatic, and Commander-in-Chief powers. The Constitution divides the foreign policy powers between the President and Congress but not in a definitive manner.FACTS AND DISCUSSIONThe U.S. President is conferred with foreign affairs powers which are more popularly referred to as independent powers, so-called because they have not been delegated to the President from the Congress. The independent constitutional power conferred upon the U.S. President to conduct foreign relations extends to the following functions: the executive power, the powers of the Commander-in-Chief and, to a lesser degree, the power to appoint and receive ambassadors.

Speaking of the President's foreign affairs powers, former Attorney General and Undersecretary of State Katzenbach stated that "the Founding Fathers did not attempt to spell out the outer limits of Executive or Legislative powers. The outer limits of the President's foreign affairs powers are in fact unclear.

In order to ascertain the limits of the Presidents sphere of discretion, we shall first take into account the Executive powers of the President. The case of US v. Curtiss-Wright Export Corporation, the most explicit declaration of independent executive powers in foreign affairs, dealt with an embargo, in part at matter of foreign commerce. This case laid down the doctrine which provides that the U.S. President alone is conferred the power to speak or listen as a representative of the nation. The Supreme Court held that while the President entertains the advice and requires the consent of Senate to make treaties, the power of negotiation is concentrated on the Chief Executive. The Court provided that the President acts as the only representative of the nation in its external relations and conduct with foreign nations. Furthermore, the Court noted that as a member of the family of nations, the right and power of the United States in the field of external affairs are equal to the right and power of the other members of the international family.The case of U.S. v. Guy W. Capps, Inc. on the other hand talked about the Presidents power to enter into trade agreements which are aimed at regulating foreign commerce. This case states a limit on the Presidents powers-- the executive is prevented from entering into such agreement with the view of violating a regulation which Congress expressly prescribes. The President may not circumvent the regulations on foreign imports imposed by Congress in the exercise of the power to enter into agreements with foreign countries. Another power of the President is that of making treaties with other countries, which is in reality not a purely presidential power. Rather, this power is shared by the Senate and the President. The Constitution expressly provides that the executive has the power to make treaties subject to the advice and consent of Senate, and the president alone decides whether or not to undertake negotiations, be it a treaty or an executive agreement. However, the Constitution is silent on which sphere it has vested the power to terminate treaties upon. In Goldwater v. Carter, while the Court declined to decide on the merits of the case on ground that the controversy was not yet ripe for adjudication, the majority opinion did include a short discussion as regards the power of the President to terminate existing treaties. In an obiter dictum, the Court stated that while the Constitution was silent on which branch of government was authorized to terminate treaties, the fact that the Constitution expressly prescribes that treaties must be entered into with the advice and consent of Senate should be construed to support the view that the Constitution does not confer exclusively upon the President the power to terminate treaties.

Article II of the US Constitution provides that, The President shall be Commander in Chief of the Army and the Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. In the case of Youngstown Sheet & Tube Co. v. Sawyer, this provision was used together with the faithful execution clause, in order to justify the seizure of steel mills. The Court explained that the Presidents powers as Commander-in-Chief and those conferred upon him through the Faithful Execution clause of the Constitution does not justify the act of seizing private property in order to avert a halt in the production of steel due to labor disputes. The Court held that by doing so, the executive effectively encroached upon the powers of the legislature. It held furthermore that the only lawmaking functions which are constitutionally allowed of the President to perform are the recommending of laws he thinks wise and the vetoing of laws he thinks bad. Corollary to the limitations on the President and its encroachments, the Court held that it is the legislature which may authorize the expropriation of private property for public use as well as the passing of statutes that aim to regulate the relations of employers and employees.

In connection to foreign policy powers, the President is also vested with war powers. This is not to far from imagination, given that the President is the Commander-in-Chief of the Armed Forces. The President has the power, as chief diplomatist and Commander-in- Chief, to make war all but inevitable. However, Although the president is commander-in-chief, Article I of the Constitution gives Congress the power to declare war. Despite this apparent constitutional impediment, presidents since Thomas Jefferson have dispatched troops to combat situations without the prior approval of Congress. The Supreme Court held in the Prize cases, 67 U.S. 635, 17 L. Ed. 459; 70 U.S. 451, 18 L. Ed. 197; 70 U.S. 514, 18 L. Ed. 200; 70 U.S. 559, 18 L. Ed. 220 (1863), that the president has the authority to resist force without the need for special legislative action.In the case of Dellums v. Bush, the Court was faced with the issue of the President starting a war without authorization from Congress. Then President George H.W. Bush sent American military troops to the Middle East with the objective of deterring Iraqi aggression, despite the absence of a declaration of war from Congress. The government defending the act of the President claimed that it is only the political branches and not the courts which could determine whether or not the country is at war. The district court held that the assertion that the Executive has the sole discretion to determine whether or not a certain military operation constitutes war-making is untenable as it would subordinate the power of Congress to declare war to the ultimate decision of the President. Following the September 11 terrorist attacks on the United States, Congress passed a resolution authorizing the president to use force to fight a War on Terrorism. President George W. Bush issued military orders in October and November 2001 that mobilized National Guard and Army Reserve units and directed the detention of enemy combatants by the military. In a controversial move, President Bush authorized military tribunals to try suspected terrorists. After the U.S. invasion of Afghanistan, many suspected terrorists were captured and moved to military prisons for indefinite terms of detention. The invasion of Iraq by U.S. and British forces in March 2003 was authorized by Congress in the fall of 2002, again giving the president as commander-in-chief broad authority to conduct a military campaign.The power of the Commander-in-Chief to detain citizens or non-citizens under the classification of enemy combatants falling exclusively within the jurisdiction of the executive precluding the intervention of the other branches was issue that the Court had to resolve in Hamdiet. al. v. Rumsfeld, Secretary of Defense.The Court held that detainees are entitled to receive notice of their classification, which is the basis for their detention, if they are to be given a fair opportunity to rebut the allegations made against them. The Court reiterated that a state of war does not operate as grant for the President to disregard the rights of citizens. An integral part of the president's foreign policy role is the enormous power of the U.S. armed forces, over which the Constitution makes the president commander in chief. The president may threaten a foreign nation with force or actually conduct military actions to protect U.S. interests, aid U.S. allies, and maintain national security.In times of crisis, the president has the power to commit U.S. forces, but the Vietnam War led Congress to place limits on the presidential war power. The War Powers Resolution of 1973 (50 U.S.C.A. 1541 et seq.) restricts the president's power to mobilize the military during undeclared war. It requires the president to make a full report to Congress when sending troops into foreign areas, limits the duration of troop commitment without congressional authorization, and provides a veto mechanism that allows Congress to force a recall of troops at any time.The president also has broad powers over domestic policy during wartime. President Abraham Lincoln issued an order to military commanders suspending Habeas Corpus during the Civil War, which allowed the military to arrest and detain persons without trial for an indefinite time. Congress later passed a law suspending habeas corpus, but after the Civil War, the Supreme Court, in Ex Parte Milligan 71 U.S. 2, 18 L. Ed. 281 (1866), condemned Lincoln's directive establishing military jurisdiction over civilians outside the immediate war zone.During the early days of U.S. involvement in World War II, President Roosvelt issued orders authorizing the establishment of "military areas" from which dangerous persons could be expelled or excluded. This order was used to designate the West Coast a military area and to remove and imprison 120,000 Japanese Americans in "relocation centers" for the duration of the war. The Supreme Court upheld the relocation order in Korematsu v. United States 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), finding that the government had a compelling national security interest during a time of war to take such extreme measures.The war powers of the President are not stagnant. Following the September 11 attacks on the United States, Congress passed the USA Patriot Act, which gives the president increased powers to wiretap suspected terrorists without judicial supervision as well as the power to indefinitely detain aliens who are suspected of terrorism. U.S. citizens who have been held as enemy combatants in military prisons without the right to consult with an attorney or have a criminal trial have challenged the president's authority. In Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), the Fourth Circuit Court of Appeals ruled that the courts must defer to the president when dealing with issues of national security. Therefore, the president could order the indefinite detention of enemy combatants.However, although the president is commander-in-chief of the armed forces, but onlyCongress has authority to declare war and provide funding. The War Powers Act attempted to limit the president's war-waging powers.CONCLUSION The President is the chief diplomat as head of state and can also influence foreign policy by appointing US diplomats and foreign aid workers. The Presidents powers, although powerful, can be infringed by the Congress at certain times, thus limiting his powers. The president has the power to make treaties, with a two-thirds vote of the Senate, and has the power to make international agreements. The president is commander-in-chief of the armed forces, but onlyCongress has authority to declare war and provide funding. The United States Constitution divides the foreign policy powers between the President and Congress so that both share in the making of foreign policy. The executive and legislative branches each play important roles that are different but that often overlap. Both branches have continuing opportunities to initiate and change foreign policy, and the interaction between them continues indefinitely throughout the life of a policy.

ReferencesGrimett, Richard F.1999. Foreign Policy Roles of the President and the Congress. Accessed from http://fpc.state.gov/6172.htmNeustadt, Richard E. 1990. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. New York: Free Press.Parmet, Herbert S. 2002. Presidential Power from the New Deal to the New Right. Malabar, Fla.: Krieger.Rozell, Mark. J., ed. 2002. Executive Privilege: Presidential Power, Secrecy, and Accountability. 2d ed. Lawrence: Univ. Press of Kansas.Shapiro, Robert Y., Martha Joynt Kumar, and Lawrence R. Jacobs, eds. 2000. Presidential Power. New York: Columbia Univ. Press.Wallace, Don Jr. The Presidents Exclusive Foreign Affairs Power Over Foreign Aid: Part 1. Accessed from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2266&context=dljhttps://www.boundless.com/political-science/textbooks/boundless-political-science-textbook/foreign-policy-18/who-makes-u-s-foreign-policy-109/the-president-576-4257/http://legal-dictionary.thefreedictionary.com/Foreign+Policy+Powers