Must Foreign Affairs Be Special?

In foreign affairs we pare back constitutional rights, greatly enhance the President’s authority, and shield the government from judicial accountability. Yet, the most frequent appeals when arguing over the extent and distribution of these powers — how far they reach and who gets to exercise them—are to historical practice, and the most popular theory of foreign affairs powers was “divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” We have failed to ask the fundamental question upon which our special treatment for foreign affairs depends: “Must foreign affairs be special?” This article analyzes the most common reasons given for foreign affairs exceptionalism — its high stakes, fluid facts, need for secrecy and information, and its requirement of unity, energy and decision — and argues that those justifications for treating foreign affairs differently are in fact equally applicable to the range of fraught and difficult questions that courts and the political branches must face within the “domestic” Constitution’s four-corners. This Article concludes that while the answer to “Is foreign affairs special?” is probably “No,” the answer to “Must foreign affairs be special?” is probably “Yes” — just not for the reasons we might wish that it were so.