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Posted on April 2nd, 2012, by

Foreign affairs are national affairs. The United States is a single nation-state and it is the United States (not the states of the Union, singly or together) that has relations with other nations; and the United States Government (not the governments of the States) conducts those relations and makes national foreign policy. As the proverbial schoolchild knows, the Constitution established a more perfect Union’ on pillars of federalism and the separation of powers. It delegated authority and function to the federal government by vesting legislative powers in Congress, the executive power in the President, the judicial power in a federal judiciary. The powers not delegated to the United States by the Constitution… are reserved to the States respectively, or to the people.'(The Tenth Amendment) From the beginning, it was clear, this more perfect Union’ was one sovereign nation, and from the beginning the federal government has maintained the relations of that nation with other sovereign nations. But the Constitution does not declare the United States a single sovereign nation, expressly or even by indisputable implication. Indeed, where foreign relations are concerned the Constitution seems a strange, laconic document: although it explicitly lodges important foreign affairs powers in one branch or another of the federal government, and explicitly denies important foreign affairs powers to the states, many powers of government are not mentioned. Constitutional lawyers have been troubled by these lacunae and have been struggled to explain and to fill them. No explanation has been universally accepted, and no proposed principle of constitutional construction has supplied what is missing to universal satisfaction. Different doctrines that have been suggested have different legal and political consequences.

Under all of them, however, foreign affairs remain exclusively national. The Constitution does not delegate a power to conduct foreign relations’ to the United States or to the federal government, or confer it upon any of its branches.

Congress is given power to regulate commerce with foreign nations, to define offenses against the law of nations, to declare war, and the President is given the power to make treaties and is authorized to send and receive ambassadors, but these hardly add up to full power to conduct foreign relations. Where for random examples is the power to recognize other states or governments; to open consulates in other countries and permit foreign governments to establish consulates in the United States; to acquire or cede territory; to grant or withhold foreign aid, to proclaim a Monroe Doctrine, an Open-Door Policy, or a Regan Doctrine; indeed to determine all the attitudes and carry out all the details in the myriads of relationships with other nations that are the foreign policy’ and the foreign relations’ of the United States. The power to make treaties is granted, but where is the power to break, denounce, or terminate them? The power to declare war is there, but where is the power to make peace, to proclaim neutrality in the wars of others, or to recognize or deny rights to belligerents or insurgents, or to address the consequences of the United Nations Charter and other international agreements regulating war? Congress can enact laws to define and punish violations of international law, but where is the power to assert U.S. rights or to carry out its obligations under international law, to help make new international law, or to disregard or violate law that has been made? Congress can regulate commerce with foreign nations, but where is the power to make other laws relating to U.S. foreign relations to regulate immigration or the status and rights of aliens, or activities of citizens abroad? These missing’ powers and a host of others, were clearly intended for, and have always been exercised by, the federal government, but where does the Constitution say that it shall be so?

Traditional interpreters of the Constitution have attempted to find the missing powers by traditional modes of constitutional construction. Foreign affairs powers expressly granted to have been held to imply others: for example, the power to make treaties implies the power to terminate or break them. Foreign affairs powers, we shall see, have been spun also from general grants of power and from designations read as grants; for example, the power of Congress to do what is necessary and proper’ to carry out other powers (Art. I, sec.8), or the provision vesting in the President the executive power’ (Art. II, sec.1). Additional powers for the federal government might be inferred from their express denial to the states. Art. I, sec.10)

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