Political Commitments and Executive Power

by Michael Ramsey

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).]

Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges by the President) are a distinct and crucial form of diplomacy, and that we need to understand how political commitments fit into the Constitution’s foreign affairs framework.

The article inspires two reactions. The first is that political commitments are a constitutional work-around. Arguably the Constitution’s framers erred in making international agreements too hard to undertake (by requiring two-thirds of the Senate to approve) and too inflexible once undertaken (by giving them automatic status as domestic law). In any event, the framers imposed a rigid international agreement process that the executive branch has found unsatisfactory. Over time, executive agreements and non-self-executing treaties emerged as ways to work around the framers’ formalistic diplomatic system to make it more flexible and more suited to executive branch desires. Political commitments similarly seem to respond to the Constitution’s inflexibility in international agreement-making. They are, in this sense, akin to executive agreements and non-self-executing treaties, with similar benefits to the executive branch.

My second reaction is that, unlike executive agreements and non-self-executing treaties, political commitments fit relatively easily into the Constitution’s text and original meaning. Duncan and Joshua don’t seem to agree, because they spend a good part of their article straining to give political commitments a constitutional defense. It’s true, of course, that the Constitution’s text doesn’t expressly mention political commitments and that the framers didn’t seem to have had them in mind. But the Constitution was designed to provide general principles that could encompass specifics not directly contemplated.

The short answer, for me, is this: Article II, Section 1 (the “vesting clause”) gives the President “executive power”, which includes a general power over foreign affairs matters that are not allocated elsewhere. (I’ve argued for this proposition at length elsewhere and so won’t repeat those arguments, but in my view it’s fully reflected in the eighteenth-century meaning of the phrase “executive power” and in practice after the Constitution’s ratification). The executive foreign affairs power includes diplomatic basics like instructing and recalling ambassadors and making unilateral policy declarations such as the Neutrality Proclamation – all things that President Washington did on his own authority. Political commitments, though not specifically mentioned or contemplated at the time, fit easily within this broad grant of power. They are a natural corollary of the idea that the Constitution vests the President with the nation’s basic diplomatic power.

Duncan and Joshua acknowledge the vesting clause theory but don’t embrace it, perhaps because it seems contested. It’s true that it has detractors, although it’s accepted as a basic proposition by a wide range of scholars. More importantly, its detractors don’t have any satisfactory alternatives. Duncan and Joshua run into this problem as they struggle to construct a political commitment power without relying on the vesting clause. They end up invoking a grab-bag of things that aren’t that persuasive to me, including recent (post-1900) executive branch practice and some debatable structural and pragmatic claims. I come away thinking that, without the vesting clause, political commitments lack firm constitutional footing.

So in the end, I like political commitments. Unlike executive agreements and non-self-executing treaties, they are constitutional work-arounds that (for me) don’t raise a lot of textual problems. And like other “unenumerated” foreign affairs powers such as instructing and recalling ambassadors and making unilateral policy declarations, they show how hard it is to give constitutional grounding to our basic diplomatic structure and practice without turning to the vesting clause.

http://opiniojuris.org/2009/04/15/political-commitments-and-executive-power/

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