Executive Advisory Opinions and the Practice of Judicial Deference in Foreign Affairs Cases

During the first decade under the U.S. Constitution, Supreme Court justices frequently provided the president and the executive branch with independent legal advice on a wide range of issues. Nevertheless, in 1793 when President Washington sought advice from the justices regarding the impact of the wars of the French Revolution on U.S. neutrality, the justices refused to give such advice. Their refusal has come to be viewed as the origin of today's strict and well-established rule that the federal courts may not provide the executive branch with advisory opinions. Following the justices' refusal to advise him, the president turned to his cabinet for advice; and so it is today. Presidents seeking legal advice look within the executive branch. This Essay examines a unique aspect of the attorney advisory function to the field of foreign affairs. As a practical matter, the restriction of the advisory function to the executive branch has resulted in a significant expansion of presidential power under the Constitution.