U.S. v. Curtiss-Wright Corporation (1936)

Mar 19

Presidential Power in the Age of Empire

Constitutions evolve. They are created in a particular historical setting, but their meaning is subject to interpretation in the light of contemporary needs and demands. U.S. presidents and members of Congress are prone to expand their constitutional powers when they identify the need. Unlike executives and legislatures, constitutional courts are designed to withstand popular pressure and defend the integrity of the Constitution.

For two basic reasons, judicial defense of constitutional integrity and the shared foreign affairs powers given to the President and Congress is most difficult in the domain of foreign affairs. Alexander Hamilton and James Madison articulate these reasons in The Federalist. In Federalist 23, Hamilton explained that the powers of common defense “ought to exist without limitations.” Why? He answers, “because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them.” Here Hamilton is acknowledging that Constitutions cannot anticipate circumstances that will require a nation to take specific actions necessary for national security. As he puts it, “[t]he circumstances that endanger the safety of nations are infinite; and for this reason, no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” In Federalist 41, Madison goes through the specific powers of defense and concludes that “[t]he means of security can only be regulated by the means and the danger of attack.” He echoes Hamilton when he states that “[i]t is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”

Hamilton’s and Madison’s arguments are open to misinterpretation. While they are clear about the need to equip the national government with sufficient powers of national defense, they are not as clear about the distribution and structure of such power. It is one thing to claim that the power to raise armies and navies should be unlimited. The number of troops and the military equipment they wield should be determined by the threats against the nation, not by some arbitrary constitutional limit. Yet, given that the American constitutional system is one of separated powers and that the powers that Hamilton and Madison refer to are divided and shared by Congress and the president, the powers are limited. Neither branch has unilateral, unlimited control of military power, war power, or foreign affairs power.

The Legal Issues in U.S. v. Curtiss-Wright Corporation

The division of foreign affairs power was precisely what was at stake in U.S. v. Curtiss-Wright Corporation (1936). FDR issued an arms embargo as a means to influence a land dispute between Paraguay and Bolivia. The power to issue the embargo was granted to the President by Congress in a joint resolution passed in May 1934. According to the resolution, the President could begin and end the embargo at his discretion. FDR did just that. He created an arms embargo shortly after passage of the resolution and he ended it in November 1936. The Curtiss-Wright Corporation was indicted for violating the embargo. It argued that Congress had unconstitutionally delegated legislative power to the President.

The Court’s Ruling in U.S. v. Curtiss-Wright Corporation

Justice Sutherland, a former U.S. Senator, wrote for a 7-1 Court that ruled in favor of the Congress and the President. He based his opinion on two central points. Foreign affairs powers are fundamentally different than domestic affairs powers. The President’s powers are much more extensive in the former than in the latter. Likewise, Congress has a freer hand in delegating power to the President in the domain of foreign affairs than in domestic affairs. Moreover, Justice Sutherland argued that the President’s foreign affairs powers are unilateral because he is the “sole organ” of the nation in foreign affairs. Only the President, in whom all executive power rests, speaks for and acts on behalf of the nation in foreign policy.

Sutherland traced the origins of the President’s foreign affairs power to pre-Colonial times and asserted that “The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.” Sutherland traces this distinction between foreign affairs and domestic affairs powers, and their respective limits, to their nature and origin. Only domestic affairs powers are limited by the Constitution because only they were possessed by the states and passed to the federal government in the Constitution.

Foreign affairs powers have a different history. They originated in the British Crown and passed to the federal government through the Declaration of Independence and the Continental Congress. Foreign affairs powers passed to the “colonies in their collective and corporate capacity as the United States of America.” These are inherent powers that would be vested in the federal government without a specific grant of power in the Constitution. Sutherland claims that “the powers of external sovereignty did not depend upon the affirmative grants of the Constitution.” Consequently, only the President can act exclusively as a representative of the nation. He is the “sole organ” in “external relations,” as John Marshall stated in 1800. Only the President is equipped with information and means to impose an embargo. It would be unwise to require Congress to exercise such power because it has neither the requisite knowledge nor legal responsibility to act prudently. Justice Sutherland implied that the joint resolution was unnecessary for the President to issue the embargo because issuing an arms embargo was consistent with his inherent or plenary power. Based on a review of principle, the delegation doctrine was not violated.

In addition, Justice Sutherland provided precedent to support the ruling. He cited Mackenzie v. Hare (1915), among other cases, to support the notion that the U.S. government “‘is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.’”

U.S. v. Curtiss-Wright Corporation Legacy

Advocates of the unitary presidency cite U.S. v. Curtiss-Wright as a validation of their theory. The precedent is less than clear. Justice Sutherland quotes George Washington’s response to a request from Congress to submit information that was used to negotiate the Jay Treaty. The President refused the request, claiming that the information was privileged and, thus, not subject to congressional review. The Constitution does not grant the President the power of executive privilege; it is among his inherent powers that are vital to conducting foreign affairs.

Justice Sutherland noted that the President’s foreign affairs powers are inherent, but they “must be exercised in subordination to the applicable provisions of the Constitution.” They are not absolute. The ruling may support executive privilege, but it does not extend to executive prerogative, the power to suspend or violate law. The President, including in his capacity as sole organ of the nation, is subject to the rule of law like all government officials.

U.S. v. Curtiss-Wright has been cited to justify a broad use of executive power in foreign affairs. The State Department, for example, cited it to justify President Truman’s decision to fight the Korean War, a war undeclared by Congress. The Vietnam War, another undeclared war, was justified similarly on sole organ theory grounds. The George W. Bush administration cited U.S. v. Curtiss-Wright in its Hamdan v. Rumsfeld (2006) brief to argue that al Qaeda detainees housed at Guantanamo Bay, Cuba are not prisoners of war and are not protected by the Geneva Convention.

Justice Sutherland’s conception of the sole organ theory is flawed. It is living constitutionalism disguised as originalism. It misinterprets the theory that was articulated by Alexander Hamilton in “Pacificus No. I” before being reiterated by John Marshall in 1800. Hamilton defended President Washington’s Neutrality Proclamation by suggesting that it was the President’s constitutional duty to keep the nation out of war until Congress declared it. Moreover, he refuted the argument made by the proclamation’s opponents that the Treaty of Paris obligated the U.S. to enter the French Revolutionary Wars on the side of France. In other words, Hamilton was clear that Washington’s proclamation did not violate treaty law or the Constitution. The president was being true to his obligation to faithfully execute the laws. Likewise, Marshall argued in his March 7, 1800, speech cited by Justice Sutherland that the President was obligated by the Jay Treaty to extradite Jonathan Robbins to England for committing murder. President Adams was not acting outside the law or apart from the Senate that ratified the treaty; he was acting as the sole organ to fulfill his constitutional duty to uphold the terms of a treaty that was a joint endeavor between the President and Congress. Neither Hamilton or Marshall argued that the President has inherent, plenary, and exclusive power in foreign affairs. They grounded their arguments on constitutional law and the separation of powers.

Justice Sutherland stretched the original meaning of the sole organ theory in order to expand executive power in foreign affairs. He linked the American President’s foreign affairs powers to the British monarchy and its prerogative powers that were largely independent of Parliament, a connection that defies the arguments made at the Constitutional Convention, the historical transfer of foreign affairs powers to the individual states in the Treaty of Paris, and the exercise of foreign affairs powers by the states under the Articles of Confederation and the Continental Congress. Even Hamilton, an alleged monarchist, was far more republican in his articulation of the sole organ theory than was Sutherland.

On the eve of WWII, the emerging American empire was beginning to erode republican protections against unilateral executive intervention in the world. The Court’s ruling in U.S. v. Curtiss-Wright Corporation made it easier for subsequent presidents to claim a source of foreign affairs power that was independent of the Constitution. The case opened the door to what would become known as the unitary presidency, a conception of executive power the Supreme Court has rejected.