The Presidential Monopoly of Foreign Relations

Authors

Raoul Berger, Harvard University Law SchoolFollow

Abstract

Because of the widespread ramifications of foreign relations, discussion must perforce be confined to presidential executive agreements, and whether the Senate may be excluded from knowledge of, and participation in, negotiations with foreign nations as a part of the treaty-making process. Mention only can be made of the legislative shortcomings which have contributed to the all but total takeover of foreign relations by the President, and of the need for procedural reform in the Senate if its participation is to be effective. Could we view the matter as an original question, that is, were we drafting or amending a Constitution and free to decide where power is best vested, such factors might persuade that exclusive power in the premises is best lodged in the President. Apart from the countervailing considerations, however, if the Constitution provides for Senate participation in treaty-making, the Senate cannot now be barred on the ground that it lacks the wisdom and machinery to participate effectively. "The peculiar circumstances of the moment," said Marshall, "may render a measure more or less wise, but cannot render it more or less constitutional." Accordingly, the focus of discussion will be the constitutionality of presidential monopoly claims. The starting place, of course, must be the constitutional text itself, in the light of such illumination as is provided by the intention of the Framers and the understanding of the Ratifiers.

Recommended Citation

Raoul Berger, The Presidential Monopoly of Foreign Relations, 71 Mich. L. Rev. 1 (1972).
Available at: https://repository.law.umich.edu/mlr/vol71/iss1/2