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eBook details

• Title: The Textual Basis of the President's Foreign Affairs Power (International Rule of Law)
• Author : Harvard Journal of Law & Public Policy
• Release Date : January 22, 2006
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 270 KB

Description

What I want to present here is, if not an alternative to Justice Robert Jackson's famous Youngstown framework, (1) at least a complement to that framework for approaching the President's foreign affairs power. My central proposition is that the eighteenth-century meaning of "executive" power included foreign affairs powers as well as the more familiar power to execute the law. Thus, Article II, Section 1 of the U.S. Constitution--which states that "the executive Power shall be vested in a President"--grants, in eighteenth-century terms, the power to execute the law plus foreign affairs powers. This is sometimes called Hamilton's vision of executive power, but its first reasoned exposition after the Constitution's ratification was actually made by Thomas Jefferson, and that is why I have called it the "Jeffersonian" executive power in prior articles. (2) Jefferson wrote: "The Constitution ... has declared that 'the Executive powers shall be vested in the President.' ... The transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specially submitted to the Senate." (3) Of course, Jefferson was not a Framer and he had at times some unusual constitutional ideas. So, why should we rely on him? I do not rely on him exclusively. I only say that if we are interested in what the Constitution meant to reasonable people at the time it was written, it is useful to explore what Jefferson suggested. Therefore, I will explain where I think Jefferson got his idea of executive power and then show why one can think the idea represents the Constitution's original meaning.

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