Michael D. Ramsey
91 Geo. Wash. L. Rev. 1513
An enduring puzzle of U.S. constitutional law is how the Constitution divides foreign affairs powers among the branches of government. The Constitution does not refer to a single foreign affairs power, and although it allocates some specific foreign affairs powers, it seems to omit some important ones while failing to fully direct how the ones it does allocate interact with each other. This Symposium Article argues that many of the challenges of foreign affairs constitutionalism can be mitigated by giving up thinking about foreign affairs as a meaningful constitutional category. The Constitution does not refer to a foreign affairs power for the simple reason that its framers did not think of foreign affairs powers as categorically or constitutionally distinct from domestic powers. In broad terms, therefore, constitutional disputes over foreign affairs law can and should be approached in the same way as constitutional disputes over domestic law. It follows that the scope and role of the branches in foreign affairs is, as in domestic matters, guided by the vesting clauses of Articles I, II and III: Congress exercises the legislative powers “herein granted” (with legislative powers not granted to Congress by the Constitution reserved to the states or the people), the President exercises the executive power, and the courts exercise the judicial power. The Article illustrates the implications of this approach by reference to recent and longstanding foreign affairs disputes.
