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 Constitutional Convention, but out of the House as well. But will these bodies, taken singly and in unison, have those qualities that lead to the speedy and prudent exercise of discretion? The Congress might be able to declare an end to war, but it cannot enter into those negotiations and actions that might convince the other side to end it as well.
Thirdly, although the legislation is designed to tie the President's actions more closely to public opinion, one may wonder whether it will provide greater protection for liberty. The key to this protection, according to the Federalist, is responsibility. But under the legislation, the authors of actions will be uncertain and the blame weak through division. Rather than increase the responsibility of the President, the legislation may decrease it, as some of its critics on the left fear.
The danger of executive tyranny is not simply a mirage. But that danger cannot be adequately assessed or provided against without first seeing the strength of the argument in favor of executive discretion.
Glen E. Thurow,
Presidential Discretion in Foreign Affairs,
7 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol7/iss1/3