Executive Branch Authority to Conduct Foreign Affairs Executive Power is vested in the President of the United States by Article II of the Constitution. Article II, Section 1, Clause 1 of the American Constitution, called the 'Executive Vesting Clause' has been the constant focus of constitutional analysis, even at the time of its ratification. James Madison and Alexander Hamilton famously debated this clause in 1793, on the specific issue of residual authority given to the President above and beyond powers as enumerated in the Constitution. The power and authority of the President affects not only the President himself, and the two arms of the Congress, but also the freedoms and rights of U.S. citizens. The precise delineation of executive power has been the subject of notable Supreme Court cases particularly with respect to foreign affairs and war. In the United States now, due to the 'War on Terror', issues of executive power are again prominent topics with respect to American law and politics. To some extent, jurisprudence in terms of the President's executive powers finds a foundation in the concurring opinion by Supreme Court Justice Robert Jackson from the Steel Seizure Case. Rendering his opinion on that case, Justice Jackson stated that Presidential powers fluctuate and are not fixed relative to whether they concur or disagree with the relative powers of the Congress. According to Kozinski, Justice Jackson prepared a sliding scale that illustrated the exercise of congressional vs. Presidential power.

While it is clear that constitutional law is relevant to issues concerning national security and foreign affairs as well as the relative distribution of power between the Congress and the President, the actual Law in these cases is not well focused. There are constitutional scholars who would contend that proper interpretation of the constitution gives the 'preeminent role' to the Congress with respect to foreign policy; this is taken to include not only authority to declare war but also to 'decide on lesser acts of military hostility'. From the perspective of those who give preeminent power to the congress, the role of the President is seen to be one of execution of foreign policy but not its actual formulation. Indeed, for these scholars, there is an assumption that the preeminent role of the Congress is self-evident from the Constitution, although details and implications of this perspective may vary. Those who would give Congress a constitutionally-based preeminent power over foreign affairs contend that there has been, over the last sixty years, a clear-cut trend towards Presidential domination of United States foreign affairs. These scholars believe this 'represents a dramatic departure from the basic scheme of the Constitution' (Powell). As is obvious from such a statement, the opinions of constitutional scholars are not consistent with those of the Presidential administration. Indeed, over the last fifty years, there has been a growing view of the Executive branch being primary with respect to affairs of national security and foreign actions. The Executive branch has a different interpretation of the Constitution and its limits in re allocation of power. Those who would give primacy to the President aver that the Constitution gives the President authority to act independently with respect to the foreign policy of the United States. Indeed, the idea of 'Presidential primacy' has come not only from the Executive Branch itself, but also from opinions expressed by the Supreme Court. In several cases, recognition of foreign policy as being the responsibility of the Executive Branch has been explicitly expressed by the Supreme Court. For example, there are opinions stating that issues such as military and foreign affairs are areas for which the President has 'unique responsibility' (Powell).

The original objective of separating foreign policy between the Executive branch and Congress was to achieve consistency, coherence, and continuity in said foreign policy. With dual responsibility, both governmental branches can alter aspects of foreign policy, focus on a process that is fully realized, and implement and execute a beneficial foreign policy. Because the United States has a complex and often difficult global arena, formation of an effective foreign policy is not simple, and having the two branches work together on foreign policy should engender strength and clarity of approach. It is often said that the relationship between the Congress and the President is one of 'checks and balances'. The intent of this aspect of the United States political system is to preclude any one governmental branch from becoming too powerful. Thus, division of foreign policy between the two branches should result in cooperation, coordination and consultation between the President and...

As Chief Executive, Chief of Foreign Policy, Chief Treaty Negotiator, Commander-in-Chief, Chief Diplomat, and Chief Appointing Authority, based on the constitution, the President dominates and controls the foreign policy of the United States. In other respects, the Congress can be considered to have an independent and powerful role in foreign policy, through its ability to approve the sale of arms, manage trade, regulate trade, ratify treaties, deny or confirm presidential appointments, use its power to declare war, and maintain the power of the purse. However, the President also retains the right of veto to block the power of Congress (Khan and Sabir).
Ultimately, the failure and/or success of the foreign policy of the United States is dependent upon the interactions between, and mutual cooperation of the Congress and the President particularly with respect to formulation of a unified foreign policy. When the two bodies disagree, lack of communication and attitudes, particularly of partisanship, can result in direct confrontation, and addressing foreign policy issues becomes far more complicated and difficult. In general, the idea of having input from the two branches is based on the concept of bipartisanship, which means that (for a two-party System such as the United States) that no single political party dominates foreign policy. The end goals are to reach a compromise that is beyond the merely partisan in terms of politics, and is for the best interests of the United States and to the benefit of other nations involved in said foreign policy. Hopefully through cooperative actions, a trust develops between the Congress and the President; this mutual trust is beneficial in the crafting of foreign policy and important issues of commerce and trade as well as internal security. There are aspects in which the necessity for the two branches to work together has resulted in delays on regional and global issues of significance. As well, discordance between the two branches is not beneficial for either foreign or domestic policies (Khan and Sabir).

Making Foreign Appointments

As outlined in the U.S. Constitution (Article II, Section 2), the President is able to nominate and appoint not only ambassadors, but judges of the Supreme Court, public consuls and ministers, and officers of the United States, with 'the advice and consent of the Senate'. In general, the confirmation procedure for Presidential nominees is more often guided not by formalized and strict rules but rather by non-formalized customs that vary along with the variable balance of power between the Senate and the President (Gerhardt, 2000:10)

The process involved in nomination/appointment and confirmation of such nominations is a challenge given the different roles of the President and of the Senate. Indeed, nominees have been, at times, the focus of confrontation and contention between the two branches of the United States government. McCarty and Razaghian commented that the Senate's process for confirmation of nominees is 'entirely consistent with all its other norms, traditions and rules.' However, often the process includes numerous delays due to the various prerogatives of individual senators (McCarty and Razaghian, 1999:37). At the time of the 111th Congress, 964 nominees were submitted for confirmation, and of these, 843 were eventually confirmed by the Senate. Indeed, as Binder stated, 'most presidential nominees emerge from the Senate confirmation process and are eventually confirmed.' (Binder, 2001:37). Although it is indeed the case that generally more than the majority of a given President's nominees are ultimately confirmed, there are cases where the Senate will reject a nominee. In this case, the President will make a different selection and nomination. In further instances, when there is a wholesale disagreement of the Senate with a nominee, a filibuster may be held, to prevent the nomination from being brought forward for a vote. A filibuster is a procedural technique used to halt various issues of contention and often to engender further discussion (Khan and Sabir).

The Use of force & the Declaration of War

The President of the United States is defined by Article 1, Section 2 of the constitution as "Commander-in Chief of the Army and Navy of the United States." Simultaneously however, the power to declare war is given to the Congress in Article 1, Section 8 of the constitution, and the Congress limits the President's power in foreign policy. In general, Congress supports the President's role with respect to foreign policy, assuming that the role of the President dominates for decisions concerning military…