Foreign Affairs Power, Treaty Power, War Power, Immigration and Naturalization Power: Introduction

Introduction and Summary of Congress’s Foreign Affairs, Treaty, War, and Immigration and Naturalization Powers

The legislative branch has several enumerated powers related to foreign affairs. Many of these powers like those related to treaties, the military, and war are shared with the executive. For instance, the Constitution gives the president the power to enter into treaties, but the president is required to get the “Advice and Consent of the Senate” and in fact needs two thirds of the Senate to concur, and while the President is commander in chief of the military, Congress is given the power to declare war and to raise and maintain armies and provide for the common defense.

While conflicts between the legislative and executive branch on these issues arise frequently, the courts often stay out of these conflicts (see, the section on political questions). State law that interferes with federal law and policy with regards to foreign affairs is largely preempted (see the section on Preemption).

Article I, Section 8 enumerates Congress’s foreign affairs powers:

To . . . provide for the common Defence . . . ;

To regulate Commerce with foreign nations . . . ;

To establish a uniform Rule of Naturalization . . . ;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever . . . [and] Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, magazines, Arsenals, dock-Yards, and other needful Buildings. . . .

There are relatively few cases or controversies that have come to the Supreme Court on most of these powers and as noted above many are considered to raise non-justiciable political questions.

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