The Uncertain Career of Executive Power

Abstract

Essays in constitutional law are often about something more than the historical texts at hand. Professor Michael Glennon's 1988 essay—Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?—was a heartfelt effort to challenge the existence of an independent foreign affairs power in the Presidency, especially in the deployment and use of military force. Its argument was shaped around the controversy of the day—the effort by the Reagan White House in "Iran Contra" to deliver covert aid to anti-communist rebels in Nicaragua despite Congress's bar to American involvement. For any earthly observer, a well-tempered theory of separation of powers is likely to vary, at least in detail, according to the substantive values at stake. Still, it seems a little hard to blame Justice George Sutherland—as author of the famous "sole organ" theory of American presidential power in foreign affairs—for what went right or wrong with our policy in Nicaragua. Despite the sober subject matter, it might take a Noel Coward play to capture the to-and-fro of Presidents and Congresses in foreign affairs decisions. Congressmen want final political authority over the deployment of American armed forces in areas where combat may occur, until they discover that the political risks are formidable. Congress has authorized a conflict in its early stages, supporting earmarked appropriations, but then winsomely asserted that the war belongs to someone else. With equal fallibility, American Presidents and their courtiers have been tempted to act alone in areas where Congress would freely offer support after proper briefing and consultation. The marriage of the Executive and the Congress is as complicated as any other.