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In his article The Transformation of the Constitutional Regime of Foreign Relations, Professor Ted White argues that the early twentieth century saw a major shift in constitutional understandings and expectations regarding the distribution of authority in foreign affairs. According to White, until that era the foreign affairs power, like all other powers under the Constitution, were considered subject to a formalistic, essentialist world view in which powers were distributed by the text of the Constitution according to clear principles of federalism and separation of powers. Congress and the President could only exercise powers in this area that had been dedicated to them by the text of the Constitution or that were reasonably implied therefrom, with such exercise subject to the other constraints enumerated in the Constitution. Article II treaties made by the President with the advice and consent of the Senate were assumed to be the primary medium for the exercise of the foreign affairs power, and the treaty power also was assumed to be subject to the constraints of separation of powers, individual rights, and federalism.


Constitutional Law | Law