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The Article II Executive Power and the Rule of Law (Part 4)

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This post deals with the field in which claims of constitutionally-conferred and inviolable executive discretion are most often made and accepted: foreign relations. Those claims are buttressed by practical imperatives and the long-standing practice of the government. From the beginning, Presidents have conducted the foreign relations of the United States, and have exercised considerable discretion in doing so. Unlike the vast bulk of the federal executive's operations, foreign-affairs activities are not based on an institution or program created by statute, like the Post Office. Administration and control of foreign affairs as an inherent and inviolable aspect of the executive power can explain that practice. A conceptualization of executive power that does not attribute to it such strong foreign-relations authority should also be able to explain that practice.

One virtue of the version of the Whig executive power I have described is that it can explain how the President can conduct foreign affairs with no statutory support. That explanation in turn illuminates another important issue. If the executive power itself brings with it no discretion, where do Presidents derive the discretion that they have in fact exercised so long as to foreign affairs? The answer—that discretion arises as the residue of the duties imposed on officials—operates with respect to foreign relations and elsewhere, and so is important in understanding executive power generally.

The Whig executive power enables the President to conduct foreign relations because the international legal personality of the United States is an asset of the government. The executive exercises the government's legal personality, international and domestic, pursuant to the law. When the President announces that this country is neutral in a foreign war, or directs that a vote be cast in the........

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