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THE RUNAWAY PRESIDENTIAL POWER OVER DIPLOMACY
by JEAN GALBRAITH Professor of Law
Galbraith breaks new ground in “ The Runaway Presidential Power over Diplomacy,” an article recently published in the Virginia Law Review. Especially in recent years, presidents have claimed an “exclusive” power over diplomacy as a justification for ignoring important congressional statutes — statutes that structure diplomatic engagement, ban appropriations for forms of international engagement, or require executive branch disclosure of diplomacy-related information. Although largely overlooked by scholars up to this point, these claims have led to a significant expansion of presidential power. Galbraith analyzes and critiques these claims, arguing for a more modest understanding of presidential power over diplomacy.
The President’s Claims to Exclusive Diplomatic Powers
Though the Department of Justice’s Office of Legal Counsel (OLC) considers the President’s “exclusive authority to conduct the Nation’s diplomatic relations with other States” to be a “well settled” matter of constitutional interpretation, Galbraith contends that such power is far from “exclusive.” She breaks down the overarching power of diplomacy into five interrelated powers, three of which include strong histories of Congressional involvement:
• The power to represent the United States abroad
• The power to recognize foreign nations
• The power to decide the content of communications
• The power to select and control agents of diplomacy
• The power to control access to diplomatic information
In her analysis, Galbraith agrees that there is a strong argument for the power to represent the United States abroad to remain squarely with the executive branch. Moreover, in Zitovsky v. Kerry, the Supreme Court directly addresses and affirms that the President exclusively holds the power to recognize foreign nations. Nonetheless, that still leaves the extent of presidential exclusivity regarding the other three powers of diplomacy largely unsettled.
Historically, the judiciary has “only rarely” participated in the determination of diplomatic power —Zitovsky was not decided until 2015, and even then, Galbraith underscores that the Supreme Court only addressed a fraction of the overarching “bundle” of the powers of diplomacy.
“Without the courts, it is left to the political branches to sort out their respective powers. . . . [I]t creates a dynamic where the executive branch can always win if it really wants to,” Galbraith writes. “The executive branch is far better positioned than Congress both to articulate its legal positions and to implement them in practice.”
The executive branch’s advantage comes largely from its institutional capacities to assert and implement its powers. On the other hand, Congress’s capacity to “cast a powerful indirect shadow on the conduct of U.S. international engagement” arises from its abilities to enact legislation and make vital funding decisions that could complicate the executive branch’s claims to “exclusivity” in international issues.
Forgotten Constitutional Struggles for What Counts as Diplomacy
At the time the Framers drafted the Constitution, “diplomacy” was barely — if at all — a word in the English language. Reviewing the history of its use and application reveals notable fungibility that remains to this day. Significantly, contemporary OLC practices and documents tend to define “diplomacy” broadly.
“By defining diplomacy broadly for constitutional purposes,” Galbraith writes, “executive branch lawyers vastly enlarge the reach of the President’s assertedly exclusive powers over the content of U.S. international engagement, the agents who undertake it, and information related to it.”
In demonstrating that such a definition is “neither constitutionally predetermined nor conceptually mandated,” Galbraith sets forth four potential means of limiting the executive power of diplomacy, including:
• limiting the power to encompass negotiation rather than policy;
• limiting the power to only “political” rather than “technical” matters;
• tying the power to certain institutional actors within the executive branch; and
• limiting the power within the context of participation in international organizations.
Rethinking Constitutional Control Over International Engagement
In this section, Galbraith sets forth three doctrinal approaches to the distribution of the power of diplomacy: exclusive control to the executive branch; ultimate control to Congress; and an intermediate option, which she favors while acknowledging that such a path would still leave much unsettled.
An intermediate doctrinal approach to the power of diplomacy could include limitations in each of the four categories. Galbraith’s first suggestion is to narrow the concept of “diplomacy” to negotiation and not policymaking. She also suggests that diplomacy powers could be limited to only the President and those executive agencies that focus primarily on foreign affairs, thus “allowing Congress to control nondiplomatic agencies as they engage abroad similarly to how Congress can control them as a matter of domestic law.” Moreover, even in international contexts, Congress could mandate statutory reporting requirements as a tool for oversight much the same way as they do for domestic issues.
Importantly, Congress has several available strategy options to increase its involvement in diplomacy. Congress could emphasize its views on diplomatic powers; formalize its legal reasoning; invoke “soft power” strategies to raise the cost of diplomacy for the executive branch; and/or challenge the executive branch’s assumed “exclusive” powers in court. The final suggestion — involving the courts — carries both significant risk and opportunity for Congress, and Congress has several avenues to pursue a case, if it desired.
The thought leadership put forth in this paper is “important not only for its treatment of this fascinating and understudied issue but also for what it contributes to more general debates in constitutional theory and practice.”
Galbraith encourages future scholars to consider the multitude of different legal questions this scholarship both raises and helps to answer. For example, this research demonstrates the counterintuitive phenomenon that transparency can, at times, be used as a “tool of power rather than constraint,” pointing to the OLC’s practice of generating a record of low-stakes precedent to build “valuable legitimacy for major moves down the road.” Further, this research also serves as a useful scholarly reminder of the strong historical support of Congress’s legitimate claim to some portion of the power to engage in international affairs. Lastly, the work also underscores the complex intersection of administrative and foreign relations law — an increasingly relevant and impactful nexus of study.
In closing, Galbraith reaffirms that “[i]t is time for a better structural allocation of power.”
“Future administrations will need to decide whether they wish to make indefensibly broad claims of exclusive executive power or instead pivot towards a more nuanced stance,” she writes. “If the executive branch does not cede ground of its own accord, then Congress has tools at its disposal to bolster its constitutional authority over international engagement.”
