‘One Voice’ and the Trump Administration’s Conduct of Foreign Affairs

On Feb. 12, President Trump issued an executive order entitled “One Voice for America’s Foreign Relations.” Students of foreign relations law and executive power will immediately recognize this language. The “one voice” doctrine traces back to key judicial decisions in foreign relations law. It maintains that the nation must speak with one voice in foreign affairs. And that voice is generally the president’s.

Yet the executive order goes far beyond affirming the president’s primacy as international communicator-in-chief. Stating in its opening sentence that “Article II of the United States Constitution vests the power to conduct foreign policy in the President of the United States,” the executive order asserts a maximalist view of the president’s constitutional foreign affairs authority. By repeatedly discussing “the President’s foreign policy,” it implies, incorrectly, that Congress has little to no role to play in the conduct of foreign affairs, and that legislators are powerless to override the president or direct executive branch personnel in this area. The Supreme Court has long declined to affirm that view even while deferring extensively to the president in matters of foreign affairs and national security.

By asserting broad presidential prerogative over foreign affairs, the “One Voice” order is another facet of the aggressive vision of a unitary executive that has informed much of the second Trump administration’s agenda, and in particular its attacks on the federal bureaucracy. But it adds a twist. The order identifies a separate ground for imposing the president’s will on the civil service by anchoring the assertion of plenary control over the bureaucracy in an equally broad theory of the president’s foreign relations powers. It then uses this legal theory to circumvent the legal protections that Congress has long provided to the foreign service officers and civil servants who work at the Department of State and related agencies, promising institutional and cultural changes intended to make them more blindly beholden to the president’s directives.

This line of argument may appeal to parts of the federal judiciary that are reluctant to interject in foreign affairs. Accepting such arguments here, however, risks compromising the sort of diplomatic corps that both Congress and prior presidents of both parties have seen as best serving U.S. foreign policy interests: one loyal to the law above the whims of the president, and one that welcomes—rather than eliminates—dissent.

Trump’s View of the President’s Prerogative in Foreign Affairs

Section 1 of the order states that “Article II of the United States Constitution vests the power to conduct foreign policy in the President of the United States.” Section 2 provides that “[a]ll officers or employees charged with implementing the foreign policy of the United States must under Article II do so under the direction and authority of the President.” The order contains boilerplate language requiring that it “shall be implemented consistent with applicable law” and preserves “the authority granted by law to an executive department or agency.” But it unambiguously subjects the exercise of that authority to the absolute control of the president.

In doing so, the order embraces the vesting theory of executive power in foreign affairs. The theory is associated with Alexander Hamilton’s assertion in 1793, as Pacificus, that “subject only to the exceptions and qu[a]lifications which are expressed in the instrument[,] … the Executive Power of the Union is completely lodged in the President.” To many proponents of this view, this Executive Power includes a large pool of foreign affairs and other executive powers beyond those explicitly enumerated in Article II. By contrast, Congress has no foreign affairs powers other than those the Constitution explicitly mentions, such as the power to declare war, Senate participation in the Article II treaty process, and a small reservoir of implementation powers under the “necessary and proper” clause.

The sharpest judicial endorsement of the vesting theory in foreign affairs is Justice Sutherland’s famous dicta in United States v. Curtiss-Wright, decided in 1936. According to Sutherland, the president has “[a] very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations[.]” By virtue of this role, “the President alone has the power to speak or listen as a representative of the nation.” In some ways, Sutherland’s view of presidential foreign affairs powers may even be broader than Hamilton’s. Curtiss-Wright traces the source of the federal foreign affairs power not to the several states, but to the British Crown. It effectively equates the president’s foreign affairs powers with the royal prerogative.

The vesting theory of executive power has been widely criticized. Some commentators have advanced a narrow understanding of the executive power as simply the power to execute the laws enacted by Congress, not a vast suite of powers that were once thought to inhere in a king-like sovereign. And there are good textual and structural reasons to question the theory. Interpreting the vesting clause as a general grant of “all the executive powers of which the Government is capable” would render the far more limited set of enumerated foreign relations powers in Article II superfluous. The vesting theory is also at odds with the Constitution’s structure of power-sharing in foreign affairs. The president makes treaties but the Senate must give advice and consent. Congress declares war, but the president is Commander-in-Chief. This structure, the argument goes, is evidence of a system of checks and balances, not one in which the president is akin to the British monarch. As constitutional scholar Edward Corwin once put it, the Constitution is “an invitation to struggle for the privilege of directing American foreign policy[,]” not a mandate to one political branch or the other. 

The constitutional significance of the Curtiss-Wright dicta has also been debated. Justice Sutherland’s “sole organ” soliloquy was, after all, unnecessary to the holding, which simply upheld a congressional delegation of authority to the president. The issue was not the legality of unilateral presidential action. Curtiss-Wright’s dicta also all but ignored Congress’s foreign affairs powers. And some have read the opinion narrowly as a defense of the president’s primacy and (debatable) exclusivity in communicating foreign policy—not making it.

Above all, critics focus on how the executive has harnessed Curtiss-Wright and the vesting theory to accrue power. The sole organ idea and Curtiss-Wright’s defense of presidential exclusivity in foreign affairs have had tremendous staying power. Curtiss-Wright has been invoked in countless judicial decisions and, perhaps more importantly, executive branch legal opinions in support of increasingly broad assertions of presidential power in foreign affairs.

Nevertheless, nearly a century after Curtiss-Wright, the Supreme Court has yet to embrace the vesting theory in foreign affairs. The Truman-era lodestar on executive power, Youngstown Sheet & Tube Company v. Sawyer, outright rejected it. Justice Black’s formalist majority opinion took a narrow view of Article II’s vesting clause as giving the President the power to enforce the laws, not to make them. That view does not sit well with the idea that all foreign affairs powers not explicitly delegated to Congress reside with the president. 

Justice Jackson’s celebrated concurrence is even more skeptical. The opinion places presidential action in three categories depending on its relationship to Congressional action. In Category I, the President acts pursuant to statutory delegation. In Category II, the president has power to act under Article II and congress’ position is unknown or ambiguous. In Category III, presidential and congressional action are in direct conflict. . Under Jackson’s framework, Congress has a major role in foreign affairs and can override the president in all but a small number of exceptional cases in which the president’s constitutional power is exclusive. In Jackson’s words, claims of presidential authority “so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

Justice Jackson proceeds to reject the government’s broad vesting clause argument—namely, that it “constitutes a grant of all the executive powers of which the Government is capable”—in justifying President Truman’s seizure of the nation’s steel mills to support the war effort in Korea. “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III,” he reasoned, “and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.” In specifically addressing the Court’s prior holding in Curtiss-Wright, he reads it as “intimat[ing] that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.” The Court, which has since embraced Justice Jackson’s tripartite framework, has deemed only a handful of presidential powers exclusive to date.

In the most recent Supreme Court opinion to squarely address Curtiss-Wright, the 2015 case of Zivotofsky v. Kerry, the majority similarly rejected the vesting theory’s logic. Zivotofsky held that the president has exclusive authority to recognize foreign sovereigns with which Congress may not interfere. Although this holding certainly provided more fodder for executive branch aggrandizement, the fact remains that the Supreme Court declined to endorse the vesting theory of executive power in foreign affairs. Citing Secretary of State John Kerry’s assertion that the president has “’exclusive authority to conduct diplomatic relations,’ along with ‘the bulk of foreign-affairs powers,’” the Court refused “to acknowledge that unbounded power.” Justice Kennedy wrote that the “Curtiss-Wright case does not extend so far as the Secretary suggests,” emphasizing that “[i]t is not for the President alone to determine the whole content of the Nation’s foreign policy” and that “[t]he Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.”

Nor did the dissenters disagree on this particular point. If anything, they were critical of the majority for, in their eyes, betraying it. In his dissent in Zivotofsky, Justice Scalia openly rebuked the idea that the Constitution intended to give the President the equivalent of the royal prerogative over foreign affairs. “The People of the United States had other ideas when they organized our government,” he wrote, leading them to “adop[t] a Constitution that divides responsibility for the Nation’s foreign concerns between the legislative and executive departments.” Chief Justice Roberts and Justice Alito not only joined Scalia’s dissent but authored their own “to underscore the stark nature of the Court’s error on a basic question of separation of powers[:]” namely, that “[t]he Constitution allocates some foreign policy powers to the Executive, grants some to the Legislature, and enjoins the President to ‘take Care that the Laws be faithfully executed.’” Only Justice Thomas embraced the proposition that “vests the residual foreign affairs powers of the Federal Government—i.e., those not specifically enumerated in the Constitution—in the President by way of Article II's Vesting Clause.”

The balance on the Supreme Court has shifted since Zivotofsky and the current cast of justices has been receptive to claims of extraordinary presidential power concerning immunity, removal, and foreign affairs in other contexts. But the vesting theory of foreign affairs is one issue the current Court has not squarely confronted. While one might expect the present Court’s conservative majority to be sympathetic with the Trump administration’s position, the prior positions of Chief Justice Roberts and Justice Alito in Zivotofsky, at least, may cast that conclusion in some doubt. Nor is it clear that justices that have joined the Courts since Zivotofsky are any more willing to embrace the vesting theory. “[I]t is not likely a winning strategy,” Justice Kavanaugh once wrote before joining the Court, “for a President to assume that he will be able to avoid judicial disapproval of wartime activities taken in contravention of a federal statute.” Such logic would not bode well for the broad claims of exclusive authority over foreign affairs of the sort that the vesting theory often implicates.

Whether the Trump administration’s new iteration of the vesting theory ever reaches the Court is far from certain. Thomas and other originalists who buy into the vesting theory may welcome an opportunity to revisit it. But related questions rarely make their way to the courts on account of standing and other justiciability barriers. And in the case of the Trump administration’s executive order, the avenues towards review may be even narrower on account of the idiosyncratic way it has chosen to implement its vision of the president’s foreign affairs power, at least in the first instance.

Direct Implications for the Civil Service

In the realm of constitutional law, the “one voice” doctrine has generally been used to limit the extent to which other institutions—most notably, Congress and the states—can exercise control over aspects of U.S. foreign relations. But in implementing its own vision of this doctrine, the Trump administration’s executive order puts a different, more vulnerable set of targets in its sights: the foreign service officers, civil servants, and other employees that work in the Department of State and related agencies.

“All officers or employees charged with implementing the foreign policy of the United States must under Article II do so under the direction and authority of the President[,]” section 2 of the executive order states. “Failure to faithfully implement the President’s policy is grounds for professional discipline, including separation.” Section 4 then directs the secretary of state to “take appropriate action” where he determines such personnel action is warranted, or to refer the matter to the president if the individuals involved are presidentially appointed.

What exactly the executive order means by faithful implementation is far from clear. But insofar as it suggests that the president—and, through his delegated authority, the secretary of state—can take adverse personnel action against State Department employees who they determine has been inadequately faithful to the president’s policy agenda, separate and apart from actual job performance, it is in serious tension with how Congress has long structured and staffed both the Department and related agencies. And that may well be the point. 

Federal laws applicable to both career civil servants and the foreign service generally require that agencies apply “merit principles” in weighing personnel actions. Agencies are also only supposed to pursue adverse actions “for such cause as will promote the efficiency of the services[,]” meaning misconduct detrimental to the agency’s work. Importantly, these laws also bar agencies from pursuing adverse actions against employees for their political affiliations or permissible political activities, because they refused to obey an order that would have required them to act unlawfully or contrary to a rule or regulation, or because they engaged in certain disclosures relating to conduct they reasonably believed to be unlawful, improper, or abusive. Yet one can imagine the Trump administration framing any number of these actions as reflecting inadequate faith in the president’s agenda and thereby warranting dismissal.

Notably, section 5 of the executive order also directs the secretary to “implement reforms in recruiting, performance, evaluation, and retention standards, and the programs of the Foreign Service Institute, to ensure a workforce that is committed to faithful implementation of the President’s foreign policy.” Yet, Congress has already established that the selection board system used to select and promote foreign service officers is to base its decisions on “the character, ability, conduct, quality of work, industry, experience, dependability, usefulness, and general performance” individuals have demonstrated, not their faithfulness to the president’s policy agenda. Similarly objective, ideologically neutral criteria are supposed to apply to the civil service as well. Neither framework lends itself to recruiting and retaining personnel on the basis of their perceived fidelity to the president’s policy agenda, at least if applied in good faith.

The authors of the executive order were well aware of these statutes. Indeed, the executive order cites them to make clear that it is addressing the same categories of federal employees to which those statutes apply. And it’s possible that the Trump administration intends for the executive order to be interpreted and implemented consistent with these longstanding statutory restrictions, in line with its boilerplate disclaimer that it should be “implemented consistent with applicable law[.]”

Yet the Trump administration’s posture towards federal employees in other contexts points to another, more likely explanation: that the “one voice” doctrine put forward by the executive order is intended to be yet another means of expanding presidential control over the bureaucracy. Trump has already made broad claims of presidential authority to remove civil servants of various stripes in the face of statutory restrictions. As one of his first actions in office, he also sought to reclassify broad swathes of the civil service under existing statutes in order to make them ineligible for most traditional civil service protections. Trump’s version of the one voice doctrine provides another avenue for arriving at the same conclusion in relation to those civil servants who help implement U.S. foreign policy: by arguing that the president’s constitutional authority to remove and control them is part and parcel of his broader constitutional authority over U.S. foreign policy. 

Whether and how quickly this application of Trump’s “one voice” vision will lead to review by the courts is unclear. While terminated or sanctioned employees will almost certainly have standing to mount a legal challenge, the Trump administration has an array of other regulatory, statutory, and constitutional arguments—many of which it has already deployed in its efforts to terminate personnel at other federal agencies—that it will likely turn to before relying on the president’s authority over foreign affairs. Plaintiffs may also have to navigate sometimes glacial administrative proceedings before they can get their challenge of any wrongful personnel action against them before a federal court. That said, in cases where agency personnel are truly punished for being insufficiently faithful to the president’s agenda, these other arguments and avenues may—and arguably should—still fail to vindicate the government’s actions. And at that point, the federal courts may have no choice but to take Trump’s new claim of broad presidential authority over foreign affairs head on. 

A Farewell to Dissent?

The State Department and other foreign affairs agencies have practices that are central to culture and operations, though not mandated by statute. These aspects are more vulnerable to changes in presidential policy. While the recent “one voice” order does not mention it by name, one unique institution seems particularly vulnerable: the State Department’s vaunted dissent channel. 

Established in 1971, the dissent channel was originally intended to serve as an outlet for internal dissent from the State Department rank-and-file over Vietnam and certain other aspects of the Nixon administration’s foreign policy. Initially envisioned as a more preferable option than press leaks and other outwardly visible signs of dissent that had begun to emerge, the channel soon became an important vehicle for communicating views from the field to Department leadership who might not otherwise hear them. Over the subsequent half century, dissent channel cables were credited with helping to drive U.S. policy on issues, ranging from the U.S. response to genocide in Bangladesh to what would become the Dayton Accords in Bosnia, even as it sometimes drew unwanted internal—and, where leaked, external—attention to the incumbent administration’s policy shortcomings.

The current dissent channel policy is codified in the Foreign Affairs Manual, which brings together the State Department’s internal rules and regulations. The policy allows all U.S. citizen employees of the State department or USAID to use the dissent channel to express dissenting or alternative views on substantive foreign policy matters. These may be communicated to the Secretary’s Policy Planning Staff as a written cable, the traditional form for internal diplomatic communications. The Policy Planning Staff is then required to confirm receipt within two working days and provide a substantive reply within 60 working days. It also shares a copy with senior Department leadership but will not circulate it further without the senders’ permission. “Freedom from reprisal for Dissent Channel users is strictly enforced[,]” the policy states, and anyone who pursues such reprisal “will be subject to disciplinary action by the Department.” That said, some studies have suggested that many employees still feared professional retribution for using it even under prior administrations. Perhaps for this reason, despite being open to nearly all Department staff, the dissent channel is generally only used between five and ten times per year.

How exactly the Trump administration views the dissent channel is unknown, but it seems unlikely to be good. Several dissent channel cables leaked during the first Trump administration, bringing unwanted attention to internal criticisms of its travel ban, reporting on child soldiers, and immigration policies. (Both the Obama and Biden administrations had similar experiences.) More fundamentally, the idea of encouraging dissent seems anathema to the vision of faithful implementation that is at the core of the Trump administration’s recent executive order. Perhaps its suggestion that, in implementing the executive order, “the Secretary shall…revise or replace the Foreign Affairs Manual” is a sign of the dissent channel’s imminent demise. But even if the dissent channel survives as an institution, the Trump administration’s open suggestion that a lack of faith in the President’s policies can warrant disciplinary action seems likely to chill all but the most determined public servants from using it.

Either outcome would be a bad one for U.S. foreign policy. The dissent channel’s perseverance—and the reason it has been exported as a model to other federal agencies—reflects longstanding, bipartisan recognition of the fact that good foreign policy does not simply flow down from the president, but comes from dialogue between the president’s policy vision and the experiences of those working in the field to implement it. Dissent of the sort channeled through the existing process isn’t the betrayal of public service, but the essence of it: a willingness to put one’s informed views forward, however unpopular, in hopes that it will help better advance U.S. national interests (often to the incumbent president’s benefit). Punishing such acts or branding them as unfaithful promises to disconnect the president and his senior advisors from an important internal source of critical feedback. The result will almost certainly be detrimental not just to America’s foreign policy, but to the president’s perceived effectiveness in managing it.

Conclusion

President Trump’s “one voice” order is a vesting theory redux. Perhaps it is no surprise that a president who asserts that “He who saves his Country does not violate any Law” also endorses a maximalist view of executive power in foreign affairs. But the fact remains that the theory is controversial, and that the Supreme Court has all but rejected it.

Knee jerk invocation of the vesting theory to justify executive action in foreign affairs is not unique to the Trump administration. But it may be uniquely relevant to what the Trump administration is trying to accomplish, in ways that go beyond its recent executive order. Notably, in its recent request that the Supreme Court intervene and halt a judicial order directing it to resume the payment of certain foreign assistance, the Trump administration relies in part on the assertion that “[t]he President’s power is at its apex—and the power of the judiciary is at its nadir—in matters of foreign affairs.” As with the “one voice” executive order, acceding to this view would allow the Trump administration to intrude on areas traditionally understood (including by the Supreme Court) to be within Congress’s legislative authority.

At a minimum, the president’s executive order operationalizes this broad view of the President’s foreign affairs authority to demand loyalty to the president and threaten individual consequences for diplomats and civil servants who fail to provide it, in direct tension with statutes that quite deliberately do not include loyalty to the president as grounds for such action. One immediate result could be the shuttering of a key avenue for those involved in the foreign policy process to communicate dissenting views to State Department leadership. And a longer term consequence may well prove to be a less effective and responsive U.S. foreign policy moving forward.