President's Game? History Refutes Claims to Unlimited Power Over Foreign Affairs
Louis Fisher
Legal Times
Advocates of unchecked presidential power in the post-9/11 period rely heavily on the Supreme Court’s decision in United States v. Curtiss-Wright Export Corp. (1936). In dicta, Justice George Sutherland cited a statement in 1800 by then-Rep. John Marshall (the future Supreme Court chief justice) that the president “is the sole organ of the nation in its external relations.”
By this statement, Marshall meant merely that when the United States enters into a treaty with an extradition provision, it is the president’s duty under the Constitution to see that the treaty is faithfully carried out. He meant that, and nothing more.
Nevertheless, Marshall’s language recently has been manipulated to defend inherent, exclusive, and extra-constitutional powers for the president, placing that office outside the control of Congress and the courts. This distortion is unfortunate, particularly given the importance of the constitutional issues at stake, and a more accurate understanding of both Marshall and Curtiss-Wright would help avoid confusion about the true balance of power in the federal government.
OVERREACHING CLAIMS
The “sole organ” doctrine appears in three recent legal arguments: the first from the Bush administration, the second from Judge Richard Posner, and the third from law professor John Yoo. All three invoke Curtiss-Wright to vindicate inherent presidential power in foreign affairs and national security.
First, after The New York Times broke the story about the eavesdropping by the National Security Agency, the Office of Legal Counsel in the Justice Department issued a 42-page white paper on Jan. 19 justifying the legality of the NSA’s program. The office pointed to the “President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs.”
In a California lawsuit that challenges the constitutionality of the NSA operation, the Justice Department argues that the state-secrets privilege “embodies central aspects of the Executive’s responsibilities under Article II of the Constitution as Commander-in-Chief and as the Nation’s organ for foreign affairs.”
Second, Posner, of the U.S. Court of Appeals for the 7th Circuit, writes in his book Not a Suicide Pact (2006): “In United States v. Curtiss-Wright Export Corp. (1936), the Supreme Court held that the United States acquired the powers of a sovereign nation by its successful revolution against Great Britain rather than by a grant in the Constitution; the nation is prior to the Constitution.”
Yet that was not the “holding” of the Court. It was dicta. Moreover, sovereign powers in 1776 came initially to the Continental Congress and the separate states, not to the president, a position that did not exist at that time.
(The rest is here.)
Legal Times
Advocates of unchecked presidential power in the post-9/11 period rely heavily on the Supreme Court’s decision in United States v. Curtiss-Wright Export Corp. (1936). In dicta, Justice George Sutherland cited a statement in 1800 by then-Rep. John Marshall (the future Supreme Court chief justice) that the president “is the sole organ of the nation in its external relations.”
By this statement, Marshall meant merely that when the United States enters into a treaty with an extradition provision, it is the president’s duty under the Constitution to see that the treaty is faithfully carried out. He meant that, and nothing more.
Nevertheless, Marshall’s language recently has been manipulated to defend inherent, exclusive, and extra-constitutional powers for the president, placing that office outside the control of Congress and the courts. This distortion is unfortunate, particularly given the importance of the constitutional issues at stake, and a more accurate understanding of both Marshall and Curtiss-Wright would help avoid confusion about the true balance of power in the federal government.
OVERREACHING CLAIMS
The “sole organ” doctrine appears in three recent legal arguments: the first from the Bush administration, the second from Judge Richard Posner, and the third from law professor John Yoo. All three invoke Curtiss-Wright to vindicate inherent presidential power in foreign affairs and national security.
First, after The New York Times broke the story about the eavesdropping by the National Security Agency, the Office of Legal Counsel in the Justice Department issued a 42-page white paper on Jan. 19 justifying the legality of the NSA’s program. The office pointed to the “President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs.”
In a California lawsuit that challenges the constitutionality of the NSA operation, the Justice Department argues that the state-secrets privilege “embodies central aspects of the Executive’s responsibilities under Article II of the Constitution as Commander-in-Chief and as the Nation’s organ for foreign affairs.”
Second, Posner, of the U.S. Court of Appeals for the 7th Circuit, writes in his book Not a Suicide Pact (2006): “In United States v. Curtiss-Wright Export Corp. (1936), the Supreme Court held that the United States acquired the powers of a sovereign nation by its successful revolution against Great Britain rather than by a grant in the Constitution; the nation is prior to the Constitution.”
Yet that was not the “holding” of the Court. It was dicta. Moreover, sovereign powers in 1776 came initially to the Continental Congress and the separate states, not to the president, a position that did not exist at that time.
(The rest is here.)
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