Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

The opponents of this move contended that washington

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The opponents of this move contended that Washington had intruded upon legislative authority in abrogating the treaty and that, in any case, the president did not have unilateral authority to do so. Hamilton, writing under the pseudonym “Pacificus,” sought to answer these contentions in a series of essays. In turn, Madison, took up his pen as “Helvidius” and responded point by point to Hamilton’s arguments. Although the immediate issue was a narrow one, Hamilton seized the opportunity to argue for expansive executive powers in the conduct of foreign affairs. Essentially he contended that the president possesses all executive powers, save for the exceptions marked out in the Constitution such as, for example, the power to declare war. As he put it, “The general doctrine ... of our constitution is, that the EXECUTIVE POWER of the nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument.” 69 Madison contested Hamilton’s understanding of executive power. In this vein, he wrote: “To say ...that the power of making treaties, which are confessedly laws, belong naturally to the department which is to execute law, is to say, that the executive department naturally includes a legislative power. In 67. John Locke, Two Treatises of Government , with an Introduction by Peter Laslett, rev. ed. (New York: New American Library, 1963), chpt. XII, secs. 146, 147. 68. Ibid., chpt. XIV, sec. 160. 69. “Pacificus” [Alexander Hamilton], essay no. 1, from The Founders Constitution , eds. Philip B. Kurland and Ralph Lerner, 5 vols. (Chicago: University of Chicago Press, 1787), 4, 64. 283
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theory this is an absurdity – in practice a tyranny.” 70 Madison went on to maintain that Congress should play the leading role in formulating foreign policies and that the president’s role should be largely instrumental, i.e., mainly confined to executing the policies set forth by Congress. Madison may be said to have “won” the battle by pointing out that the legislative war making power logically touches upon “the right of judging whether the Nation is under obligations to make war or not.” 71 Technically speaking, then, Congress, not the executive, possesses the constitutional authority to declare neutrality. Aside from this particular issue, however, Hamilton’s position regarding the president’s authority to play a leading role in initiating and executing the nation’s foreign policy has prevailed. Indeed, the Supreme Court has even held that the president has greater discretionary authority in the execution of foreign than domestic policy on grounds that he possesses inherent powers that attach to sovereignty. 72 What is more, even Madison’s rather limited victory, has been erased in practice. In conjunction with other Article II powers, principally his role as “Commander in Chief” of the armed forces, the president has assumed a dominant role in determining whether the country takes up arms or not. The manner in which
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