Emotions on the issue of pausing weapons shipments to Israel are understandably intense, but the proposed remedy of impeaching the president is not a constitutional option. Legislators who support such a resolution will betray the oath of office they took to “support and defend the Constitution.”
Article II, Section 4, of the Constitution empowers Congress to impeach the president for “high Crimes and Misdemeanors.” But what President Biden threatens here is fully consistent with the Constitution as it has been understood throughout our nation’s history.
Secretary of State Thomas Jefferson explained in an April 24, 1790, memorandum to President Washington: “The Constitution . . . . has declared [in Article II, Section 1] that “the Executive power shall be vested in the President,” submitting only special articles of it to a negative by the Senate . . . .” Jefferson reasoned: “The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.”
Alexander Hamilton, Jefferson’s arch-rival in Washington’s cabinet, observed three years later in his first Pacificus essay: “As the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general ‘executive power’ vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.”
As a Federalist member of the House of Representatives in 1800 during a debate on censuring President John Adams for having acted unilaterally in the realm of foreign affairs, future Chief Justice John Marshall remarked: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. . . . He possesses the whole Executive power.” Republican leader Albert Gallatin had been designated to respond to Marshall’s lengthy presentation; but, as he listened, he put down his pen and told his colleagues: “Answer it yourself. For my part I think it unanswerable.” The resolution was overwhelmingly rejected.
Marshall’s “sole organ” language was embraced by the Supreme Court in the landmark 1936 case of United States v. Curtiss-Wright Export Corp. The Court noted the president “makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.”
Similarly, in the 2006 Hamdan case, the Supreme Court reaffirmed these words from Chief Justice Chase in the 1866 case of Ex parte Milligan: “[N]either can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. . . . Congress cannot direct the conduct of [military] campaigns . . . .”
As Professor Quincy Wright put it in his 1922 classic, The Control of American Foreign Relations: “When the constitutional convention gave ‘executive power’ to the President, the foreign relations power was the essential element in the grant . . . .”
Even Senate Foreign Relations Committee Chairman J. William Fulbright, later a leader in the anti-Vietnam War movement that led to such usurpations of executive power as the 1973 War Powers Resolution, remarked in a 1959 Cornell University speech: “The pre-eminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has, as Alexander Hamilton defined it, all powers in international affairs ‘which the Constitution does not vest elsewhere in clear terms.’”
In the 2015 Zivotofsky case, the Supreme Court struck down a statute that indirectly tried to recognize Jerusalem as a part of Israel. As Chief Justice Marshall had noted more than two centuries earlier in Marbury v. Madison (1802): “[A]n act of the legislature, repugnant to the constitution, is void.” Indeed, if President Biden decided to recognize Hamas as the lawful sovereign authority over the State of Israel, that would be a constitutional option that could not be reversed by Congress.
Article 1, Section 9, of the Constitution prohibits the expenditure of Treasury funds without “Appropriations made by Law.” Section 8, Clause 12, grants the power to “raise and support Armies” to Congress. Without legislation, a president cannot expend public money or even have military forces to “command.” But these important powers of Congress do not include the right to tell the president how (or what) to negotiate, how to conduct military operations, or what entities to recognize as the sovereign authority over foreign territory.
I agree with the president’s critics who characterize his actions as being motivated by domestic politics and likely to do serious harm to an important ally in the Middle East. But, as a matter of constitutional law, it is the president’s call.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].