Allocation of Power in Conducting Foreign Policy

Recognition Power - one aspect of prez special authority regarding foreign affairs is that the
Art. II, §2 explicitly enumerates powers given to him in
the area (e.g. treaty-making power), but even more
generally, the need to present a clear and unified face
to the world dictates the President bear a special role in
implementing the nation?s foreign policy.
NDD does not apply externally ? foreign affairs ? even at
time can?t delegate to federal agencies, Congress can
delegate to president its legislative powers.
Powers in domestic & foreign affairs different in nature &
origin. Enumerated powers only given in domestic context ?
implying it doesn?t apply to foreign affairs.
- Power to act in foreign policy is inherent to national
sovereignty & doesn?t have to be granted as an enumerated
power. [Counter ? idea extra government powers don?t need
to be in text because implied as sovereign inconsistent with
separation of powers].
U.S. v. Curtiss-Wright [1936] [Bolivia & Paraguay fighting
over regional control; U.S. ammo companies selling arms to
both sides; Congress resolution authorized POTUS to stop
sales of arms to those in dispute; D indicted for selling to
Bolivia & challenged statute as violating non-delegation
doctrine].
-Stressed ?very delicate, plenary, & exclusive power of the
prez as sole organ of federal government in international
relations? ? STRONGLY SUPPORTS MODEL 4.
- Prez has exclusive & plenary power as sole organ of
federal govt in international relations - president has power
to speak or listen as a rep of country & he alone negotiates
treaties. Nature of foreign relations & conditions of war
necessitate different rules apply
- Prez nation?s sole representative in dealing with foreign
nations, and thus, he had this authority regardless of
Congress?s resolution.
-SoP with respect to foreign policy is fundamentally different
to that concerning domestic affairs
president holds the sole power to recognize foreign govts. Recognition is a formal acknowledgment
that an entity possesses qualifications for statehood.
Zivotsky - strong support of Model 4, recognition is a zone of inherent authority- Court held
Congress acted unconstitutionally when it attempted to require state dept to give any American citizen
born in Jerusalem the right to have the dept list ?Israel? as citizen?s birthplace bc impermissibly limited
prez powers in foreign affairs.
- Decision to recognize foreign states and determine policy of foreign states is exclusively the
presidents & not for Congress ? exclusive recognition power is essential to conducting presidential
duties.
The president has the exclusive power to grant formal recognition to a foreign sovereign.
· Recognition power has no external limits ? but internal limit in only so much can be down with this
power.
· Shows cat 3 in not death sentence for asserting presidential power.
· Functional considerations also suggest President?s recognition is exclusive. (speak with one voice) -
only executive has characteristic of unity at all times, better positioned to take decisive, unequivocal
action necessary to recognize other states at international law.
· President has exclusive power over recognition decisions on the basis of the Reception Clause (Art II,
Sec. 3), which provides that the president shall receive ambassadors and other public ministries, AND
the president?s authority to enter into treaties (Art. II, Sec. 2)

Treaties & Executive Agreements - §2 ? The president ?SHALL Medellin v. Texas -

Dames & Moore v. Regan - Issue is whether Silence in Dames - President cannot implement domestically a non-self-executing
have power, by and with the advice and consent of the Senate, to
president can move claims to international Diff than Youngstown bc treaty by an executive order - would effectively allow president to
make treaties, provided two thirds of the Senators present concur.
tribunal by executive agreement [could do it with different meaning bc not make law, separation of powers issue.
Executive agreement differs only insofar that treaties require
a treaty]. Ex. agreement not unconstitional based seizure of property? · Executive action was an attempt by president to enforce a
Senate approval; not in Const but well-recognized instruments of
on precedent & tradition - while Congress never Political reality - decision made non-self-executing treaty without necessary congressional action,
international law, effect against forein power when prez signs it.
explicitly delegated to prex power to suspend in political climate adverse to giving it no binding authority on state courts. Power to make treaty
Common issue is whether POTUS may use executive agreements
such claims, implicitly authorized practice thru contrary decision, would've left is power to make law ? authority to act must come from Congress
rather than treaties for foreign policy commitments, though
long history of acquiescing similar prez conduct. US looking foolish to or Constitution. Concerned about federal government telling state
SCOTUS has NEVER declared an executive agreement
international community. law enforcement what to do [Printz]. Return to majority in Sheet?
unconstitutional for any reason.
Roberts opinion

Rehnquist - Prez acting with congressional approval & presidential power

at its greatest. No statutory authorization but implicit approval via
congressional acquiescence. Where settlement of claims has been
determined to be necessary incident to resolution of a major policy dispute
between US & another & we can conclude Congress acquiesced in prez's
action, not prepared to say prez lacks power to settle such claims.
Congress can?t be expected to legislate for every contingency & can be
inferred that if Congress authorizes certain presidential actions, similar
action is also authorized.
- Youngtown Category 1 - Long history of congressional acquiescence to
international agreements settling claims between citizens of the U.S. &
nationals of other countries, but no independent source of presidential
authority to settle such claims. Had Congress not implicitly approved of the
action, the President would?ve been beyond his bounds. But here, he acted
under implied authority of Congress