Separation of Powers by Ana Lleonart

2/5/2021

Separation of Powers
By: Ana Lleonart

In this paper, which Ana Lleonart, Class of 2020 Scholar, submitted as a Seminar Paper in the Fall of 2019, the author explores the Trump Administration's decision to withdraw troops from Syria and uses it as a launching point to discuss the relationship between the executive and legislative branches when making strategic military decisions. A small portion of the seminar paper is reproduced below.

INTRODUCTION:
   In early October of 2019, President Trump announced that he was ordering the withdrawal of the remaining American troops out of northern Syria. The President took to his Twitter account to explain why the withdrawal was being effectuated. The President posted a slew of consecutive tweets for support of his decision to withdraw the troops. What followed the announcement was a public bipartisan rebuttal to President Trump’s withdrawal, citing to fears of the consequences that such a withdrawal would present. Because the Trump administration has largely deviated from traditional practice in the White House, I questioned whether the decision to withdraw troops out of northern Syria belonged to the President. Or if it was one that would be better suited if made by Congress.
   This paper is divided into three parts. The first part provides background information on the diplomatic relations between the United States and Syria, the current conditions that Syria is living in, and a greater insight as to why American troops were in Syria and what led President Trump to withdraw them. The second part addresses the consequences that have resulted and are likely to result from the withdrawing of American troops out of Syria. The third part will describe the allocation of foreign affairs powers among the branches, and will provide arguments for why one branch, or the other, would be better apt to make the decision to withdraw troops out of northern Syria and ultimately affect the United States’ military policy in Syria.
…

V. The Powers Enjoyed by the Executive and Legislative Branches in the Foreign Affairs Arena
   The debate over which branch shapes American foreign policy has lived on for more than two-hundred years. The foreign affairs power is not expressly mentioned in the United States Constitution. Instead, the power has been implied from several clauses within the Constitution. Additional features of the foreign affairs power have developed through historical practice over the years and been adhered to by respective branches of government. Because the power is not expressly found, nor assigned, in the Constitution’s text, a foreign policy issue inevitably raises the question of authority that each branch has over the issue.
   Article II, Section 2 of the Constitution gives the President of the United States the authority to make treaties, for which the Senate is then given authority to advise on. Under this section, the President is also granted the role of commander-in-chief of the Army and Navy. Article I, Section 8, clauses 12 and 13 give Congress the authority to raise and support Armies, and also to provide and maintain a Navy. While clause 10, under the same article and section, gives Congress the sole power to declare war. Article II, Section 3 mentions the reception clause. The reception clause has been interpreted to grant the President greater foreign affairs power, since to receive ambassadors and other public ministers involves diplomacy and foreign relations.
   But there is also a fine line between political concerns and constitutional principles when deciding which branch gets power, that must also be considered.
Brief Consideration of the Framers intentions, as Supported by the Federalist Papers
   The Framers intended to create a government with branches that, under the United States Constitution, would be able to check each other, which would keep the power from flowing too much into one set of hands. But prior to the adoption of our Constitution, Framers argued back and forth over the design of each branch, and exactly how much power each branch should hold. Many of these arguments were made by James Madison and Alexander Hamilton in the Federalist Papers they authored.
   James Madison was concerned with the very real possibility that the Framers would be fallible when creating the country’s Constitution. In Federalist Paper No. 51, Madison articulated the importance of separation of powers between the executive, legislative, and judiciary branches of government. When writing about the importance of dividing powers between the three branches, Madison foresaw, although not precisely, the possibility of one branch having more power than the other. Under Madison’s view, the division of powers between the three branches was fundamental to the preservation of the nation’s liberty. The more checks on one branch, the less at risk we would be of having one branch usurp all the powers.
   Alexander Hamilton advocated for a stronger executive branch. In Federalist Paper No. 71, Hamilton argued, under his unitary executive theory, that a unitary executive would actually increase accountability for actions taken by the executive and thus, protect liberty. Although Hamilton’s view was not adopted in the Constitution, those who advocate for the expansion of the executive’s power rely on the arguments that Hamilton penned in Federalist Paper No. 71.
What the Judiciary Branch has Said
   The Supreme Court has recognized that judicial intervention would be inappropriate when the matters for review are closely related to foreign policy and national security.
Thus, the Courts have not been very vocal during times that the executive and legislative branches are at odds over who holds specific foreign affairs powers. The lack of involvement could be because neither branch has sustained an actual injury, and thus have no standing. Or, most probable, is the fact that Courts do not want to be embroiled in a controversy between branches, where it lacks the institutional competence to resolve the issue. Luckily, the Supreme Court has provided some general guidance on the interaction between the branches, and that interaction can best be described as a “balancing” act.
   One of the few times that the Supreme Court has weighed in on the balancing act between the executive and legislative branches was in United States v. Curtiss-Wright Export Corporation. There, the Court looked at the non-delegation doctrine in the context of foreign affairs. Justice Sutherland wrote that the President’s power over negotiations with foreign countries can be “plenary and exclusive.” The reasoning behind that was that the President enjoyed greater knowledge about foreign affairs, than Congress did. Under that rationale, the President sat in a better position to make decisions involving foreign policy. So, Congress’s joint resolution showed proper deference to the executive branch in matters involving foreign policy. This case is often cited for arguments that seek to expand the executive’s foreign affairs power, because Justice Sutherland wrote that “the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Justice Sutherland also wrote that the President “has his confidential sources of information; He has his agents in the form of diplomatic, consular and other officials.” Taken in conjunction, Justice Sutherland essentially pens the expansion of the executive’s foreign affairs power in this opinion.
   The Supreme Court also considered the balancing act between branches in Youngstown Sheet & Tube v. Sawyer. Justice Jackson provided us with the three different categories that the President operates in, as related to Congress. The first category, and best-case scenario, is when the President is acting with the concurrence of Congress. The second category is when the President acts on a matter that the Congress has been silent on. In this category there is uncertainty as to what the President can do, and Justice Jackson termed this scenario as the “twilight zone.” The uncertainty is mainly raised when the President’s actions have not been expressly granted to the President by the Constitution nor has Congress spoken on the action directly. The third category is when the President and Congress are in disagreement about an action or lack of an action; Justice Jackson famously described it as the President acting at the lowest ebb of his authority.
   The Supreme Court reigned in the executive’s power when it held that the president “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” But again, the Supreme Court further expanded the executive’s power when it held that a statute may not interfere with the President’s power to recognize foreign sovereigns and to maintain those recognitions over time.
   The cases above best illustrate why the judiciary branch has stayed away from the contentious relationship between the executive and legislative branches, in regards to the foreign affairs powers. There is no right answer, and that is part of the reason why the Court has come out on opposite sides of the spectrum as evidenced by the cases cited above.

From To Withdraw or Not to Withdraw? A Balancing Act between the United States Executive and Legislative Branches over the Military Policy in Syria by Ana Lleonart, Copyright 2019.

Ana Lleonart graduated from Stetson University College of Law in May 2020. She interned with us for the Class of 2019 and was a Scholar in the Class of 2020. She received her B.A. in Finance and International Affairs from Florida State University.

“This program can help me succeed by providing me with opportunities to learn more about what it takes to be a successful practicing attorney. As a first-generation student, I have always navigated academics on my own. Thus, I have always been appreciative of programs such as this one which provide its participants with opportunities beyond the classroom.”

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