Washington at Constitutional Convention of 1787, signing of U.S. Constitution. Painting by Junius Brutus Stearns. Public Domain.
“The Constitution,” Alan Dershowitz claims, “allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty).”
Dershowitz makes that claim by way of defending US president Donald Trump against conviction in the Senate on two articles of impeachment.
More specifically, he disputes the Government Accountability Office’s claim that Trump violated the law when he used pending foreign aid to extort Ukraine’s president into investigating a political opponent.
According to GAO, the Impoundment Control Act “does not permit the president to substitute his own policy priorities for those Congress has enacted into law.”
According to Dershowitz, the Act “does not permit Congress to substitute its foreign policy preferences for those of the president.”
Where in the Constitution do we find the “allocation” Dershowitz refers to? He doesn’t say, for good reason: The actual Constitution, unlike the one in Dershowitz’s imagination, agrees with GAO.
The Constitution empowers Congress, not the president, to “regulate commerce with foreign Nations.”
The Constitution empowers Congress, not the president, to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”
The Constitution empowers Congress, not the president, to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”
The Constitution empowers Congress, not the president, to “provide for calling forth the Militia to … repel Invasions.”
The Constitution empowers the president to negotiate treaties—but those treaties require Senate ratification.
The Constitution empowers the president to appoint ambassadors and a secretary of state—if the Senate approves of his choices.
The Constitution makes the president commander in chief of the armed forces, but only when they’re “called into the actual service of the United States” by Congress.
And the Constitution allows the president to spend money only “in Consequence of Appropriations made by Law.” That is, appropriations made by Congress, which the president may sign or may veto but may not “substitute his own policy priorities” for.
In Federalist 69, Alexander Hamilton—arguing for the Constitution’s adoption—cites most of the items above the president from a British-style monarch: “The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.”
Dershowitz’s “legal argument” (he’s formally joined Trump’s defense team) is that the Constitution means the opposite of what it says and what its framers said they meant, and that Trump is king, not president, of the United States.
Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism. He lives and works in north central Florida.
One on small point, the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; . . .” should be read to see that the Constitution makes the president the CiC of the Army and Navy of the U.S. at all times and no action is necessary to call them into service of the U.S. The president may command the militia only when THEY are called into service of the U.S.
You make a strong case that Dershowitz is wrong to say that the Constitution allocates to the president sole authority over foreign policy. Hamilton does indeed distinguish the constitutional powers of the president from the plenary powers of the English sovereign. That is not to say, however, that the Constitution was written so as to ensure that Congress would in EVERY instance be involved in matters pertaining to foreign policy.
For example, the Constitution does indeed give Congress the power to “provide for calling forth the Militia to … repel Invasions” but that cannot mean more than that all the practical aspects of calling large numbers of troops into actual service should be addressed beforehand to make the process rapid. efficient, and such as to care for the men involved and their families. That language does not grant power to a cumbersome and inexpert body of 535 politicians whose primary function is deliberation to declare that no influx of foreigners across the southern border shall be considered an invasion. (The president and the Congress are colluding on just that proposition, but that’s another story.) The Congress can provide for a series of armories along the borders and inland as a way of trying to anticipate where arms can be distributed and units organized and deployed but it can only be the president who has plenary power to protect the states against invasion. Art. IV, Sect. 4. Whether an invasion is imminent or underway is a decision for the executive with a perspective quite different from any legislator.
Also, Art. I, Sect. 9 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” This does not say that the president must spend money appropriated, only that he may not spend money that Congress has not appropriated (and which he has earlier agreed to). Again, the argument is no doubt correct that the president cannot withhold appropriations for domestic expenditures on the grounds that he has certain foreign policy powers. However, the president does and must have an understanding of foreign affairs, esp. as he is advised by his financial, commercial, diplomatic, military, and intelligence subordinates, that is superior to that of the Congress. The people expect that the president will utilize all his powers and knowledge to conduct the foreign affairs of the United States and they do not expect Nancy Pelosi or Chuck U. Schumer to be mandatory parties to any phone call the president makes to the president of Ukraine.