Presidential Discretion in Foreign Affairs
Madison's argument, which attempts to state that the powers in foreign relations can be separated on principle, is in contrast to the arguments of Locke and Montesquieu that we have sketched as well as to the thrust of the Federalist. Our brief discussion of it does not do it justice, but is justified by the failure of the legislation under consideration to move in Madison's direction. The current legislation does not attempt to specify certain powers belonging to Congress as legislative in their nature, and others to the President as executive, but to limit discretion and share the remaining discretion among Congress and the President. It is thus more like the creation of an executive council. The views we have discussed raise three questions about this legislation. First, insofar as the legislation attempts to bring discretion under law, that is, to abolish some discretion, is it not an attempt to determine unilaterally what cannot be so determined? The occasion for the use of discretion in foreign affairs cannot be created by legislation, but depends on actions over which the President and Congress have a minimum degree of control. If circumstances arose that required the use of discretionary force but did not fit the congressional guidelines (and the legislation might even invite enemies to create such circumstances), the likely consequence would be a violation of law. The alternative would be a failure to act as the circumstances required. It can always be said that Congress could act through legislation or a declaration of war, but except in cases of great emergency, the very cases in which the legislation gives the President license to act, will it act with the dispatch that can seize the advantage of the moment? Secondly, to the extent that the legislation aims to include Congress in the exercise of discretion--not only, be it noted, in the commencement of hostilities but in its continuation and end--it attempts to create an executive council not only out of the Senate, as some proposed at the ...
