Free Crisis and Command: A History of Executive Power from George Washington to George W. Bush by John Yoo

PROTECTING THE NATION: FOREIGN AFFAIRS AND THE WARS OF EUROPE
    PRESIDENTS OWE THEIR privileged position in foreign affairs not to politics alone, but to the Constitution and to our first President. Washington established from the beginning that the executive branch would assume the leading role in developing and carrying out foreign policy. He did not go unchallenged. In defending Washington's foreign policy initiatives, Hamilton first publicly argued that the President is vested with all of the government's executive power, except that specifically transferred to another branch by the Constitution. Presidents ever since have taken the initiative in foreign affairs by relying on their constitutional powers.
    The Constitution's text does not explicitly grant much to the President beyond the undefined executive power, the Commander-in-Chief role, and the right to receive ambassadors. He must share the treaty and appointment powers with the Senate, while Congress receives the powers to declare war and issues letters of marque and reprisal (government permission to privateers to conduct hostilities against an enemy), to raise and fund the military, and to regulate foreign commerce, among other powers. There have been periods where early Presidents deferred to Congress's foreign policy leadership, though with poor results -- witness President Adams and the 1798 Quasi War with France or President Madison and the War of 1812. Indeed, the conventional wisdom among many legal scholars is that the Constitution gives Congress control over foreign affairs, and that Presidents have inappropriately seized power over war and peace. 47 As a practical matter, however, the President today can launch the nation into war without explicit congressional consent, enter or end international agreements, interpret international rules on behalf of the United States, and control diplomatic relations with other nations. These decisions, from President Truman's decision to wage the Korean War to Jimmy Carter's termination of the mutual defense treaty with Taiwan, have sparked political controversy and claims of presidential overreaching. It might not have been Washington's original intention to develop the executive so completely, because he devoted much of his first term to establishing the national government, appointing its officers, and fixing the nation's finances. When he turned to foreign affairs in the early months of his Presidency, he seemed to think that the Senate would perform the role of an advisory council on diplomatic matters. In contrast to his approach to appointments, where he considered the Senate's role to be limited to review of his nominations, Washington apparently believed that the Constitution required him to consult with the Senate before sending ambassadors to negotiate. As we will see, however, our first President quickly came to the conclusion that the executive would have to play the primary role in determining the nation's foreign policy.

CONCLUSIONS
    OUR CONSTITUTION USUALLY grants those elected to the Presidency their legitimacy; with Washington, it was the reverse. His standing as the Father of the Country bestowed legitimacy on the Constitution. It is hard to imagine another member of the founding generation who could guarantee that the Constitution would overcome the centrifugal forces of its early years. Washington placed at the service of the young government his record as the general who had won the nation's independence, and his reputation for republican virtue etched in memory when he had stepped down from command.
    Washington was not the greatest simply because he was the first. He did more than serve as the ceremonial head of government. Understanding instinctively that his actions set the example for his successors, Washington made decisions that fulfilled the Federalists' hope for independence and energy. He reserved to the executive control over the selection of government nominees; treated all subordinates