Document Type

Article

Disciplines

International Law

Abstract

With the recent nomination and rejection of Robert Bork to the United States Supreme Court, the topic of constitutional interpretation and the role of the judiciary took center stage as the American public followed the debate on Judge Bork's ideology and qualifications. Simultaneously the President carried on a policy in the Persian Gulf which included the reflagging of Kuwaiti oil tankers, retaliatory bombing raids on Iranian oil refineries and attacks against Iranian mine-laying boats.' The commitment of United States forces in the absence of express declaration by Congress has brought the War Powers Resolution2 into controversy again. The constitutionality of the War Powers Resolution has been debated extensively, 3 but never addressed directly by the Supreme Court. By tracing the development of the role of the executive in foreign affairs, especially the war-making power, it is possible to anticipate how the Court, following the principle of stare decisis and using the sources of law to which it has previously resorted, might decide a case challenging the Resolution or the President's noncompliance with its congressional mandate.

This Comment surveys how the United States Supreme Court has over the past two hundred years contributed to the present scope of presidential powers in foreign affairs.

The war-making power can only be understood by examining the simultaneous and parallel development of the larger foreign affairs power. Analyzing the two categories separately, intertwined as they are, would be artificial since the foreign affairs power and the warmaking power are and have been construed and developed in conjunction by the Court. Given the relatively sparse and uncertain commitments in the Constitution of the foreign affairs power to either the executive or legislative branch,' the Court has played a critical role in delineating the foreign affairs roles of Congress and the President through its interpretation and use of both the Constitution and other nontextual sources of law. By employing certain techniques of constitutional interpretation, the Court has tipped the balance of power in determining the substance of United States foreign policy to favor the executive branch.

This Comment argues that the Court's interpretive approaches to the foreign affairs power have remained fairly consistent over time. Ever since it began addressing the issue of foreign affairs power, the Court has employed both the text of the Constitution itself and nontextual interpretations as sources of law. Over time the Court has come to rely less on the originalist sources it emphasized early in its history - the text of the Constitution and the intent of the framers - and has looked more to prudential concerns such as generally applicable rules of customary international law, prudential doctrines such as the political question doctrine, general notions of sovereignty and implied statutory authority on the part of Congress. Each of these nontextual sources, which frequently interact in a given case,' will be discussed in turn. Through these firmly-established prudential doctrines, today's Court has the means to expand or contract the President's foreign affairs power as it deems appropriate. Turning to text or prudential rationales, the Court allows the executive to respond to emergency or wartime conditions or contracts the scope of his prerogative when separation of powers concerns or the dictates of the text itself so demand. The net result of the Court's fluctuation between textual and prudential considerations since the earliest cases has been to enhance noticeably the power and prestige of the executive in foreign affairs generally, and in war-making specifically.

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