My article The Vesting Clauses and Foreign Affairs is now published in the George Washington Law Review (91 Geo. Wash. L. Rev. 1513 (2023)), with the final version also posted on SSRN. Here is the abstract:
An enduring puzzle of U.S. constitutional law is how the Constitution divides foreign affairs powers among the branches of government. The Constitution does not refer to a single foreign affairs power, and although it allocates some specific foreign affairs powers, it seems to omit some important ones while failing to fully direct how the ones it does allocate interact with each other.
This symposium essay argues that many of the challenges of foreign affairs constitutionalism can be mitigated by giving up thinking about foreign affairs as a meaningful constitutional category. The Constitution does not refer to a foreign affairs power for the simple reason that its framers did not think of foreign affairs powers as categorically or constitutionally distinct from domestic powers. In broad terms, therefore, constitutional disputes over foreign affairs law can and should be approached in the same way as constitutional disputes over domestic law. It follows that the scope and role of the branches in foreign affairs is, as in domestic matters, guided by the vesting clauses of Articles I, II and III: Congress exercises the legislative powers “herein granted” (with legislative powers not granted to Congress by the Constitution reserved to the states or the people), the President exercises the executive power, and the courts exercise the judicial power. The Essay illustrates the implications of this approach by reference to recent and longstanding foreign affairs disputes.
Thanks to the George Washington Law Review and Professors Ed Swain and Sean Murphy for organizing the symposium where the paper was first presented.
Posted at 6:20 AM