Under the Constitution the President, Not Unelected Bureaucrats, Makes Foreign Policy

December 4, 2019 Updated: December 4, 2019

Commentary

Impeachment proceedings against President Donald Trump are unprecedented in that they center on foreign policy rather than alleged domestic abuses.

Congressional testimony has focused on Trump’s wiring around professional foreign policy bureaucrats and his reliance on outside agents such as his personal lawyer Rudy Giuliani. Witnesses have been outraged that Trump’s opinions and actions are “inconsistent with the consensus views of the interagency,” to use Lt. Col. Alexander Vindman’s phrase.

These witnesses and their congressional sponsors apparently believe the consensus of professionals should control foreign policy. Furthermore, they seem to think the president’s rejection of professional consensus is ground for impeachment.

But the Constitution squarely repudiates this “foreign policy by committee” approach.

During the period leading up to the 1787 Constitutional Convention, prominent founders such as James Madison, John Adams, and John Dickinson carefully studied political history. They examined governmental structure throughout the Western world. They found that most monarchies had a unified executive (the king or queen), with the notable exception of ancient Sparta, which had two, largely co-equal, kings.

By contrast, most republics had plural executives. Some republics featured co-equal magistrates, such as the Roman consuls. Others, among them the Swiss cantons and the republics of ancient Greece, lodged executive authority in larger assemblies. The American states as then constituted each had a single governor or president, but granted him only a portion of the executive power, dividing the remainder between the legislature and an executive council.

A few republics featured a unitary executive, most notably the United Provinces of the Netherlands, which at the time was a federal republic.

The founders examined how plural and unitary executives conducted foreign relations. They found that unitary executives worked well, but that experience with plural executives was frequently disastrous.

The founders who did this research shared it with others. Madison, for example, provided the highlights to other convention delegates. Adams, then U.S. ambassador in London, published a book about his findings.

Thus, it was no surprise that the Constitution’s drafters, while opting for a large legislature, favored a unitary executive. Early in the convention, James Wilson of Pennsylvania announced that he “preferred a single magistrate, as giving most energy dispatch and responsibility to the office.” After considerable discussion, his view prevailed. In Federalist No. 70, Alexander Hamilton explained some of the reasons to his New York audience:

“Energy in the Executive is a leading character in the definition of good government. The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. … Decision, activity, secrecy, and despatch [sic] will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”

In other words, a single executive officer could act more decisively, more secretly, and more quickly than a committee. In addition, as Constitutional Convention delegate William Davie pointed out during the ratification debates in North Carolina, committee decision-making allowed each member to dodge responsibility for his actions. When the executive was a single person, everyone knew where the responsibility lay.

So the Constitution created a single executive magistrate—the president—and gave him wide authority over foreign affairs. Among the president’s powers, the document listed authority to make treaties, appoint and commission diplomats and other officers, “receive Ambassadors and other public Ministers,” serve as commander-in-chief of the armed forces, and “take Care that the Laws be faithfully executed.”

This is an impressive list, but if you examine 18th century law and diplomatic practice it becomes even more impressive. The items on the list signal more than they first appear, because each item conveyed additional implied authority over foreign affairs.

The president’s power to appoint foreign service officers included power to remove them. His power to “commission” officers included authority to instruct them. The power to “receive Ambassadors” encompassed dismissing them and extending, refusing, or breaking diplomatic relations. The president’s duty to “take Care that the Laws be faithfully executed” empowered him to decide how to enforce statutes relevant to foreign affairs, such as laws on immigration and trade with other nations. The president’s position as commander-in-chief gave him certain diplomatic prerogatives, particularly in time of war.

(Some scholars and jurists also find foreign policy powers in a constitutional provision called the Executive Vesting Clause, but I find this view unpersuasive and unnecessary.)

Admittedly, the Constitution didn’t make the president’s authority over foreign affairs absolute. The Senate may reject treaties and major appointments, and only Congress may declare war and fund federal activities.

Still, in foreign affairs, the Constitution dictates that the president leads.

This system usually has served America well, even when presidents have the temerity to disregard “the consensus of the interagency.” Indeed, presidential political instincts sometimes are truer guides than diplomatic professionalism. President Ronald Reagan, for instance, adopted confrontational policies toward the Soviet Union first suggested by Sen. Barry Goldwater. Those policies made the foreign affairs establishment cringe, but the policies turned out to be correct: Whereas the establishment had been gradually losing the Cold War, Reagan won it.

Until the Trump administration, the president’s foreign affairs leadership was recognized universally, and both courts and Congress usually deferred to it.

All this changed when Trump assumed office. Since his inauguration, judges have peppered him with restraining orders on subjects traditionally within presidential discretion, such as immigration enforcement and national security. Now, committees of the House of Representatives are considering impeachment based on his conduct of foreign policy.

Trump’s critics should recognize the dangers of proceeding in this direction. We don’t need presidents who hesitate to act in the nation’s best interest because some bureaucrat may leak information to a hostile congressional committee. Moreover, we don’t want foreign leaders to become reluctant to speak frankly with the president for fear their words will emblazon TV screens worldwide.

Most importantly, these proceedings may endanger the Constitution’s successful plan of executive unity and independence.

Of course, one might argue that the president has so many responsibilities these days that it’s unrealistic to expect him to master the details of foreign policy. Since the mid-20th century, the president has become as the country’s chief health officer, education commissioner, policeman, rescue worker, land use manager, and nanny. But these “responsibilities” have no constitutional basis. The Constitution assigns them to the states, not to the federal government. Presidential interference in these areas is the product of political usurpation facilitated by judicial malpractice.

It’s legitimate to criticize Trump for not receding from activities the Constitution assigns to the states. But it’s wrong to impeach him for exercising authority the Constitution does assign to him.

Rob Natelson is a former constitutional law professor who is now senior fellow in Constitutional Jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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