Executive Power and the Law of Nations in the Washington Administration

Robert J. Reinstein *

The Washington administration has attracted increased attention in the ongoing debate over the power of the President to determine and conduct the nation’s foreign policy. The actions of the first President are being seen as important precedents on the scope of executive power, much as the statutes of the first Congress are recognized as being important precedents on the scope of legislative power.

This article provides revisionist answers to three key questions concerning the Washington administration’s assumption of authority in foreign policy: What constitutional source of power did the administration actually rely upon? How did its jurisprudential understanding of the law of nations affect the exercise of executive power? And does the experience of the Washington administration demonstrate the limits of originalism as a constitutional methodology?

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* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. J.D., 1968, Harvard University School of Law; B.S., 1965, Cornell University.