Channels, Spring 2019

Page 32 Wilt • The President, Foreign Policy tyranny.” 4 Federalist James Madison lauded the efforts of Montesquieu for recommending separation of powers, and quoted Montesquieu, saying, “there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates.” 5 Even more so, the U.S. Constitution manifests the natural continuation into the installment of checks and balances. The Federalist Papers provide in-depth explanations and backgrounds into the Founders’ understandings and intentions for the Constitution and its proper role known by the people of that time. Specifically, in Federalist Paper No. 51 , James Madison writes of the importance of checks and balances: “Ambition must be made to counteract ambition.” 6 Madison writes of “auxiliary precautions,” with the goal to “divide and arrange the several offices in such a manner as that each may be a check on the other.” 7 The Founders also recognized the importance of separating the ‘power of the purse’ and the ‘power of the sword’ as a “bedrock principle.” 8 Therefore, it is important to note the various roles of the legislative and judicial branches in order to ascertain the limits of the executive branch, and the check each branch provides on the others. In doing so, a proper framework can serve as a guide to ascertain whether presidential actions have evaded constitutional limits, or whether they are justified. Each branch has a coordinate responsibility to play in the realm of foreign policy; some branches, arguably, more than others. For instance, the Supreme Court cannot make foreign policy, per se; however, they have discretion, under the auspices of constitutional concerns, to interpret laws and treaties. Moreover, the Congress’ power to control the purse is indicative of its ability to direct funding powers through appropriations. Further consideration of both the legislature and judiciary will be beneficial to gain a stronger sense of the president’s proper role. In Federalist Paper No. 69 , Alexander Hamilton sets out to discuss the job of treaty-making, and how both the executive and the legislative branches are tasked with this responsibility. He signals that the “authority of the president in the article of treaties” is “concurrent” with the Senate in order to divide the power of treaty-making and approving on behalf of the nation. However, it should be noted that this shared power is only designated in the making and approving of treaties, not in the termination of treaties, which comes up in later Supreme Court cases. Hamilton, too, notes the significance of the Senate and its role of “advise and consent” when considering the president’s appointments of cabinet officers, foreign ambassadors, or dignitaries. Together, the president’s capacity to appoint persons in the realm of foreign policy may be wide, but the Senate’s “advise and consent” role serves as a political check on the president’s appointment (or a political check upon the choice of appointee prior to the Senate committee hearing). In essence, it serves as a limit on the president’s ability to appoint people to positions of considerable power in the realm of foreign policy, and can be viewed as a limited, and in some manner, a shared power between the executive and legislative branch. This check is noted at-length in Federalist Paper No. 76 , in which Hamilton states that the Senate’s role of ‘advise and consent’ “would have a power, though in general, a silent 4 Madison, James. Federalist Paper No. 47 . Federalist Papers , edited by Robert A. Ferguson. Barnes and Nobles Classics: New York, 2006. 5 Ibid. 6 Madison, James. Federalist Paper No. 51 . Federalist Papers , edited by Robert A. Ferguson. Barnes and Nobles Classics: New York, 2006. 7 Ibid. 8 Fisher, Louis. Presidential War Power , Third Ed. Revised . University of Kansas: Lawrence, Kansas, 2013. Page 11.