Powers of the Executive Branch to Regulate National Security and Foreign Affairs
Date of Information: 01/25/2025
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Powers of the Presidency Generally
In their broadest terms, the powers of the Presidency are outlined in Article II of the U.S. Constitution. It states that:
“The executive Power shall be vested in a President of the United States of America.” Id., at Section 1.
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Id., at Section 2.
“[H]e shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Id., at Section 2.
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.]” Id., at Section 2. For more information on treaties and the role of the President and the Senate in making them, please see out guide on treaties.
“[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Id., at Section 2. In the same vein, he “shall Commission all the Officers of the United States.” Id., at Section 3.
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id., at Section 2.
“[H]e shall receive Ambassadors and other public Ministers.” Id., at Section 3.
Most importantly, “he shall take Care that the Laws be faithfully executed.” Id., at Section 3.
However, the powers of the Presidency have expanded well beyond those original authorities outlined in the Constitution. Largely through grants of authority by statutes enacted by Congress, the President’s job has expanded significantly, and his authorities have expanded to match. That is especially true in foreign affairs and national security, as outlined below and in other guides on this site.
Powers of the President Regarding National Secuirty and Foreign Affairs
Compared with the other branches of Government, the President has significant power over national security and foreign affairs. As outlined above, Article II, Section 2 of the U.S. Constitution states that, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” He is also the chief diplomat of the United States with the sole power to receive foreign ambassadors. However, the President’s powers over foreign relations go beyond that as a practical necessity. The Supreme Court of the United States articulated the need for the President to have primacy over foreign relations when it stated:
It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never since been doubted. In his reply to the request, President Washington said:
‘The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.’ 1 Messages and Papers of the Presidents, p. 194.
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320–21 (1936).
Clarity on the Autorities of the President vis-à-vis Congress
A few years after its holding in Curtiss-Wright Exp. Corp., the Supreme Court of the United States provided additional guidance on the powers of the President in relation to the powers of Congress in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The United State was embroiled in the Korean War when a labor strike hit the steel industry. With steel being crucial to the war effort, President Truman issued an Executive order directing the Secretary of Commerce to seize the steel mills and keep them running. The owners of the steel mills complied with the President’s orders but brought suit against him on the grounds that his executive order exceeded his authority under Article II of the U.S. Constitution. The President answered that he was entitled to keep the mills running on national security grounds by virtue of his authority as Commander-in-Chief of the Armed Forces and as the Chief Executive of the United States.
The Supreme Court sided with the steel mill owners. It articulated the premise that, if the President had the authority to seize the mills, it must be found either within a statute passed by Congress or within the President’s inherent authorities under the Constitution of the United States. The Supreme Court concluded that the President could not articulate a legitimate authority for his actions in either. In effect, the Supreme Court held that the President does not have the authority to seize property domestically despite his otherwise broad powers to protect national security.
However, the arguably most helpful part of Youngstown Sheet & Tube was one of the several concurring minority opinions. Justice Jackson outlined a “tripartite framework” for analyzing the powers of the President in relation to those of the Congress that is now widely accepted as the proper rubric for determining the propriety of unilateral Presidential actions. Essentially, there are three categories of Presidential Action:
Inherent Presidential Authority + Congressional Authorization: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”
Inherent Presidential Authority: “When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”
Inherent Presidential Authority + Congressional Restraint: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-38 (1952).
This framework is important for understanding many of the regulatory schemes related to national security and foreign affairs. In some cases, the authorities underlying those regulations are specific Congressional authorizations. Still others are based on one or more of the President’s inherent authorities under Article II of the U.S. Constitution. However, the latter programs are on a shakier legal footing.