How The Supreme Court Promotes Independent Presidential Power.

• Author: Fisher, Louis

For the first century and a half of U.S. constitutional history, the U.S. Supreme Court recognized that Congress holds both express and implied authority in matters of war and foreign commerce. If executive military initiatives collided with statutory policy, the Court routinely ruled in favor of the latter. Yet its landmark decision in United States v. Curtiss-Wright (1936) reversed this trend --and by extension, constitutional intent. By misinterpreting a phrase lifted from a speech (and not a judicial decision) that justice John Marshall delivered more than a century earlier, the 1936 Court endorsed the theory that the president holds plenary and exclusive power in foreign affairs and military intervention.

Constitutional Principles

The Framers understood that the decision to initiate military actions against foreign nations should not be left to single executives. They knew that war is the nurse of executive aggrandizement and a threat to individual liberties. John Jay's expertise in foreign affairs might have made him sympathetic to unilateral executive actions, but he bluntly warned in Federalist No. 4 that absolute monarchs "will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans." Those and other motives led single executives "to engage in wars not sanctified by justice or the voice and interest of his people" (Wright 2002: 101).

In the period after World War II, the cost of presidential errors, misjudgments, and deceptions has been heavy, both in material terms and constitutional values of self-government and checks and balances. Peter Shane pointed out that "time and time again, it has become evident that Presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously" (Shane 2009: 5). Harold Bruff expressed concern about how presidents interpret their constitutional powers: "Even in ordinary times, our system has recently become similar enough to a permanent constitutional dictatorship to give deep pause" (Bruff 2015: 465).

Initially, the Supreme Court interpreted constitutional disputes between the two elected branches without favoring presidential power over Congress. In Little v. Barreme (1804), it recognized that, when a presidential proclamation in time of war conflicts with congressional language expressed in a statute, the legislative position prevails. (1) In 1806, a federal circuit court reviewed the indictment of Colonel William S. Smith for engaging in military action against Spain. He claimed that his military enterprise "was begun, prepared, and set on foot with the knowledge and approbation of the executive department of our government." (2) The court rejected the argument that presidents or executive officials could waive statutory policy, in this case the Neutrality Act of 1794. A president may not "authorize a person to do what the law forbids." (3)

During the extraordinary conditions of the Civil War, President Abraham Lincoln understood and respected the powers of Congress. He never claimed exclusive, plenary, or independent authority over military actions. When the insurrection began with Congress out of session, he called out the militia, withdrew money from the Treasury, suspended habeas corpus in various districts, and placed a blockade on the rebellious states. But he did not claim full authority to act as he did. When Congress returned, he explained on July 4, 1861, that his actions, "whether strictly legal or not, were ventured upon what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them" (Richardson 1897-1925, vol. 7: 3225).

Lincoln told Congress that he believed his actions were not "beyond the constitutional competency of Congress" (ibid.) With those clear words, he admitted he had exercised not only his Article II powers but those of Article I as well. He understood that the only branch of government capable of making his acts legal was Congress. Lawmakers debated his request for retroactive authority with the explicit understanding that his acts had been illegal. Congress passed legislation approving Lincoln's actions "as if they had been issued and done under the previous express authority and direction of the Congress of the United States." (4)

Another issue concerns Lincoln's decision to place a blockade on ports in the rebellious states. In The Prize Cases (1863), the Supreme Court upheld his action. (5) Although this decision has been cited to uphold a broad interpretation of independent presidential power over war (Yoo 2009: 212-13), both the Lincoln administration and the Court read that power narrowly. Lincoln acted in a purely internal, domestic matter of civil war, having nothing to do with exercising the war power outside the United States.

Richard Henry Dana, Jr. provided legal analysis for Lincoln in this case. During oral argument, he explained that Lincoln's blockade had nothing to do with "the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress." (6) The Supreme Court embraced those principles. Writing for a 5-4 Court, Justice Robert Grier upheld the blockade but carefully limited the president's power to defensive actions, noting that he "has no power to initiate or declare a war against either a foreign nation or a domestic state." Those powers are reserved to Congress, which "alone has the power to declare a national or foreign war." (7)

From the Civil War to 1935, the relative powers of Congress and the president remained steady. Throughout the 1800s, the Supreme Court decided a number of immigration cases to place limits on state and local government treatment of aliens. The pattern was to defer to the constitutional authority of Congress under Article I, Section 8, to "regulate Commerce with foreign Nations, and among the several States." (8) No Justice made the slightest mention of some kind of inherent or exclusive presidential power over external affairs, as would be advanced in Curtiss-Wright. Immigration decisions in 1876 and 1884 continued to look to Congress for guidance. (9)

The Teapot Dome scandal during the Harding-Coolidge administrations marked an occasion where the Supreme Court had to weigh congressional and presidential powers. It chose to support legislative authority to investigate fraud and corruption within the executive branch. Eventually, Secretary of the Interior Albert Fall was tried and convicted of bribery. Harry Sinclair, who received from Secretary Fall the U.S. naval petroleum reserve at Teapot Dome, Wyoming, without any competitive bidding, was found guilty of contempt of Congress and later criminal contempt of court (Diner 2011, vol.1: 460-99).

When the issue first reached the Court in 1927, it had to decide the scope of the Senate's investigative power into executive branch activities. The Court explored whether each House of Congress has power to compel a private individual to appear before it or one of its committees and give testimony "needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." (10) A unanimous Court held that this implied power flows from the express power in Article I that grants "all legislative powers" to Congress. (11) Such power, said the Court, dates back to the House investigation of the St. Clair military expedition in 1792. (12) In two other unanimous decisions, the Court underscored the full legislative authority of Congress to conduct investigations. (13)

The Erroneous "Sole Organ" Doctrine

In the 1936 Curtiss-Wright case, all that was necessary was for the Supreme Court to uphold the right of Congress to delegate to the president authority to place an arms embargo in a region in South America. After upholding the delegation, however, Justice George Sutherland proceeded to add pages of dicta (extraneous matter) that wholly misrepresented a speech given by John Marshall in 1800. The result: judicial support for a vast source of independent and plenary presidential power in external affairs.

The issue before the Court concerned legislation passed by Congress in 1934 that authorized the president to prohibit the sale of arms in the Chaco region of South America whenever he found it "may contribute to the reestablishment of peace" between belligerents. (14) In imposing the embargo, President Franklin D. Roosevelt did not claim any inherent, plenary, exclusive, or extraconstitutional power over external affairs. His proclamation prohibiting the sale of arms and munitions to the Chaco rested entirely on authority granted him by Congress. He acted "under and by virtue of the authority conferred in me by the said joint resolution of Congress." (15)

None of the parties in Curtiss-Wright discussed the availability of independent or inherent powers for the president (Fisher 2016a: 165-68) A district court held that the 1934 statute represented an unconstitutional delegation of legislative authority but said nothing about any reservoir of exclusive presidential power. (16) That decision was taken directly to the Supreme Court. Writing for the Court, Justice Sutherland reversed the district court and upheld the delegation of legislative power to the president to place an embargo on arms or munitions to the Chaco. (17) That should have been the end of the decision, but Sutherland proceeded to add pages of dicta to develop for the first time a theory of independent presidential power in external affairs.

He relied on a speech given by John Marshall in 1800 during service in the House of Representatives, attributing to Marshall a belief in independent presidential power over external affairs that Marshall never held. In 1800, President John Adams was running for...