My Gripe With Jackson

…Though probably not the Jackson you were thinking of. I have a gripe about how the constitutional structure of foreign policy power is talked about, but for someone not quite up to speed on this stuff it’ll probably feel confusing, so let me start at the beginning—then I’ll get to complaining. Democratic government, by design, constantly clashes with itself as the tides of popular opinion flow into and out of its various branches. In the realm of domestic policy this works by design to yield popular sovereignty as the law. In foreign policy however, as Alexis de Tocqueville observed at the start of the American republic, it can yield inferior policy relative to aristocracies’ due to its tendency to eliminate consistency, commitment, and long-term strategy from a nation’s external affairs. The Constitution partially addresses Tocqueville’s concern by insulating the process of American foreign policy from the worst consequences of democracy, but, nonetheless, leaves it open to many of them through presidential re-election (as de Tocqueville himself noted), the 17th Amendment (in modern times), and through an inexplicit answer to the question of where precisely federal sovereign power resides in foreign affairs, a question the Supreme Court has made itself primary arbiter of to the detriment of clear foreign policy—my primary gripe. If that entity really wanted to help things, the correct answer it would give would be something like this: a combination of elements drawn from Justice Jackson’s, today conventionally and stupidly accepted as the correct paradigm for this constitutional issue, concurrence in Youngstown Sheet & Tube Co. v. Sawyer, Justice Sutherland’s majority opinion in U.S. v. Curtis-Wright Export Co., and Justice Grier’s opinion in The Prize Cases. 

Let’s back up again for a moment. The Constitution places responsibility for most formal international relations processes in the President and the Senate when it dictates that treaties are to be negotiated by the former and confirmed by the latter, and it further places the primary power for kinetic action in the President’s hands when it makes him commander-in-chief. Congress as a whole funds the armed forces and can declare war, but cannot end it or dictate the manner of its pursuance. By these provisions, the Constitution places most conduct of foreign policy in executive hands, arguably the least democratic branch of the federal government (I’ll pontificate some other time on why saying this about the judiciary is a mistake), and, insofar as the legislature has any say in the conduct, it primarily rests with the Senate, the least democratic of the two congressional houses, the House only being able to directly intervene in foreign affairs via war resolutions, appropriations, and, of course by extracting information from executive branch officials in hearings and then disclosing it to everyone with impunity.

However, these provisions do not wholly eliminate the consequences of democracy in American foreign policy. One avenue for them to impact it is through the Constitution’s requirement that President’s be re-elected every four years, a provision that de Tocqueville himself criticized as inviting inconsistency and impulsiveness, and, in a post-Twenty-Second-Amendment world, serve no more than two terms, guaranteeing a change of administration at least every eight years. A second avenue stems from the democratization of the Senate via the Seventeenth Amendment, mandating Senators’ direct election. Though the Senate remains the least democratic house, as Senators still serve half again as long as Presidents and three times as long as Representatives, serve entire states rather than districts, making them less susceptible to currents in popular opinion, and only face reelection a third at a time, they must now justify their decisions in foreign policy to a constituency of private citizens rather than state legislators. Finally, and most significantly, the question of where precisely the sovereign power of the federal state ultimately rests in foreign policy, remains inexplicit within the Constitution.

What is meant by this is that, though the Constitution does lay out the offices for specific policy processes, the exclusivity of those offices from others is not clear, and, in any case they by no means wholly schematize the structure and scope of all the powers that might be asserted in the foreign policy process. For instance, although the Louisiana Purchase would not seem to fall into the category of treaty-making as usually thought of, and hence was not called such by President Jefferson, it nonetheless represented a significant foreign policy decision with far-reaching consequences. 

To put all of this more succinctly, there is no explicit default authority for federal sovereign power in external affairs put forward by the Constitution, and with it not being totally clear which branch of government holds authority in a given case, that area of statecraft is opened up to all of the clashes between the different governmental branches characteristic of democratic governments, but which are so conducive to the inferior foreign policy de Tocqueville mourned. To give a hypothetical based on recent events, language coming from the Biden Administration on Taiwan has been markedly less confrontational towards China and less favorable towards Taiwan as a state than has been that of many prominent senators. There is no textual constitutional provision to say who has the authority to make pronouncement on American diplomatic posture, so, were the Senate to pass a resolution recognizing Taiwan as a sovereign state without the assent of the President, in the absence of a default sovereign branch in external affairs, America would essentially be left with two dueling official positions on U.S. posture towards Taiwan.

Some Federalist Society types might try to answer this problem by asserting that checks and balances and explicitly enumerated powers are what the Constitution is built on, and, hence, if an explicit provision for some aspect of foreign policy process cannot be found, it must either not be conducted, or derived from the explicit provisions. There is, however, a constitutional reason for rejecting this standard as applying to the federal government in foreign affairs embodied within the Tenth Amendment, which Justice Sutherland outlines in Youngstown Sheet & Co. v. Sawyer. 

The Constitution was primarily a document designed to replace the Articles of Confederation, which replaced the Continental Congress, which replaced the Crown, as the instrument of union among the states of America. To that end, it took certain legislative powers which previously had been the province of the states and reserved them to the federal government. For the purposes of that reservation, the Ninth and Tenth Amendments lay out the principle of specific enumeration, reserving the powers not delegated to the federal government by the Constitution to the states or to the people. However, the states had never held sovereign power in external affairs; that had always been the exclusive province of the central authority. Therefore, the principle laid out by the Tenth Amendment does not apply to matters of foreign policy; that is the legal conclusion reached by Justice Sutherland, which seems to be the obviously correct one.

With that conclusion, the question of whether the placement of the default sovereign power within the federal government is merely inexplicit or actually ambiguous is raised. The latter is the view that Justice Jackson’s paradigm seems to take, and this is lamentably usually accepted as the correct paradigm today. He argues that there are three different types of executive action in foreign affairs: acting with the consent of Congress, acting in the quiescence of Congress, and acting against Congress’s “expressed or implied will [italics added].” It is only in the first set of circumstances, “and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.” In the second set of circumstances, when the presidential actions fall into the “zone of twilight” where the distribution of power between legislature and executive is uncertain (which, it seems to this observer, would include nearly every action in foreign policy the President could possibly take, if Justice Sutherland’s argument against the standard of explicit enumeration is accepted), the legal test of constitutionality must depend on “congressional inertia,…the imperatives of events and contemporary imponderables, rather than on abstract theories of law.” In the final set of circumstances, “courts can sustain exclusive presidential control…only by disabling the Congress from acting upon the subject.” 

Though, despite being merely a concurrence, typically taken as a paradigm for presidential foreign policy power today, this paradigm raises a few of the democratic problems Tocqueville anticipates via the continual allowance and promotion of the power dynamics of a democratic government structure into foreign policy. First, it is only when acting with the concurrence of Congress that the President can truly be said to be exercising the power of American sovereignty; the rest of the time he merely asserts the authority of his office. This may not seem to be the most consequential conclusion, but it does raise real obstacles to coherent foreign policy. An example has already been cited; if the President asserts a diplomatic attitude toward a foreign state but Congress is either silent or asserts another, to which branch should that government look? Second, and far more importantly, however, this paradigm, in all but the first case, makes the determination of constitutionality totally contingent on judicial adjudication. This is a major problem for a litany of obvious reasons. First, in order for an action in foreign affairs to be legally challenged, it must be brought to court, which is by no means a circumstance that can be counted on in foreign affairs. Second, in any case where the Constitution is not explicit on power delineation, which is nearly all of them, the executive and the legislature are left without any basis for claiming authority over the other in external matters; the basis is reduced to pure political force unless and until the courts arbitrate. If this were treated similarly to how the courts treat “political questions,” refusing to render judgment and letting the political branches decide constitutionality for themselves, this system might work, but when each branch is holds the Supreme Court as the final and only arbiter of the dispute, they have no reason to decide it between themselves. Finally, while Congressional inertia may be a real concept, so is presidential inertia, and if the President claims to act on Congressional inertia or some other “contemporary imponderable,” he may very well irrevocably change the inertia of American foreign policy while the court is still adjudicating—the conduct of foreign affairs, unlike domestic legislation, often cannot be paused or reversed by injunction.

Of course, there is the answer to the second problem that the proffered political questions system is, effectively, what the U.S. has now, for, while the Court’s role as sole adjudicator might be outlined, in reality the only times the Court has ever become involved in adjudicating constitutionality are in cases where citizens’ rights are asserted, which is an area of law where, under Sutherland’s paradigm, the government leaves the realm of foreign policy and is brought back under the strictures of the 10th Amendment. However, even putting aside the oft-given response that, even in this, the Court has radically expanded its jurisdiction (See, for example, the dissenters in Boumediene v. Bush), the fact that the Court continues to assert itself in this role, and therefore to be seen as occupying it by the other branches, despite the fact that virtually none of the questions it has appointed itself over ever make it into the legal system, has the damning consequence of absolving Congress of its responsibilities in creating a sovereignty paradigm and, hence, perpetuates sovereignty’s limbo.

To solve these problems, elements must be taken from an opinion by Justice Grier a century prior. He, in outlining the war powers of the executive, in many ways relies on a strict textual framework which Sutherland rebuts, but he does admit of a very important principle for American foreign policy: “…it is plain that, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that, on the well know principle of law, ‘omnis ratihabitio retrohitur et mandato equiparatur,’ this ratification has acted perfectly to cure the defect.” Applying the case broadly, it is constitutional for the President to take action without legislative authorization, though it be needed, which is later retroactively applied to his action. This legal principle, in matters of foreign policy generally, however, should, perhaps, be taken a step further, to say that prolonged quiescence on an act from Congress should be taken as ratification, for stability in foreign policy demands that policy may be relied on once passed, and not suddenly damagingly reversed at the moment of political convenience.

Taking elements from these three opinions, the best paradigm would seem to be this: Default sovereign authority resides with the President in foreign affairs; primary responsibility for arresting unconstitutional conduct by the President in foreign affairs rests with Congress via its power over the purse, its Cabinet-confirmation power, its treaty power, and its impeachment power; retroactive ratification of executive action by Congress is acceptable, and acquiescence amounts to such ratification; the courts should treat the interrelation of Congress and the President within foreign affairs entirely as a question to be settled by the political branches and should intervene only to define the scope of foreign affairs and mark the legal dividing line when the strictures of the Tenth Amendment come back into play on both parties. Though this would initially lead to greater conflict between the two branches in foreign policy, it would, ultimately, it seems contribute to a lessening of de Tocqueville’s evils of democracy within that arena by bringing both branches, eventually, to a clear understanding of their respective places within the sphere of foreign affairs, clarity which, under Jackson’s paradigm, they will never achieve.