The myth of extraconstitutional foreign affairs power.

• Author: Ramsey, Michael D.

Over sixty years ago in United States v. Curtiss-Wright Export Corp.,(1) the U.S. Supreme Court posited a peculiar notion of the source of federal power in foreign affairs. Justice Sutherland, speaking for the Court, said that federal power in this area does not arise as federal power is ordinarily understood to arise--namely, from a grant of power by the express or implied terms of the U.S. Constitution. Rather, said Sutherland, federal power in foreign affairs is extraconstitutional: "the powers of external sovereignty ... if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.... [They] exist as inherently inseparable from the conception of nationality."(2)

Curtiss-Wright is a striking departure from the usual view of constitutional law, which holds that the federal government is one of enumerated powers and, as Madison said, "delegation alone warrants the exercise of any power."(3) It runs contrary to the plain language of the Tenth Amendment (declaring that the "powers not delegated to the United States by the Constitution" are reserved to the states or to the people(4)) and seems inconsistent with numerous statements to the same effect made during the debates over the ratification of the Constitution.(5) Not surprisingly, it has invited vigorous dispute. Much academic labor has been devoted to proving Curtiss-Wright wrong,(6) but none of these efforts has met unqualified success: despite its difficulties, the case still has prominent defenders and remains a centerpiece of academic(7) and judicial(8) discussions of federal foreign affairs power.

Nonetheless, Curtiss-Wright is demonstrably wrong as a historical matter, and it is wrong for reasons that have escaped the central focus of many attacks upon it. As set forth below, whatever else one thinks of Curtiss-Wright, it wrongly describes the understanding of the drafters and ratifiers of the Constitution. There was no theory of extraconstitutional power in foreign affairs at the time the Constitution was drafted and ratified. To the contrary, the Constitution's drafters and ratifiers understood the Constitution as the means to give the national government foreign relations power it would otherwise lack.

Surprisingly, no academic study has comprehensively considered the 1787-89 understanding of the source of foreign affairs power. Instead, criticism of Curtiss-Wright focuses upon different time periods or broader issues, upon which consensus has proved impossible. As a result, Curtiss-Wright has survived despite widespread attacks upon it. Once the focus is narrowed to the 1787-89 understanding of foreign affairs power, however, it should be demonstrable beyond dispute that Curtiss-Wright is wrong upon this point. Further, because Curtiss-Wright's reasoning depends upon the claim that the Constitution was drafted against a background of extraconstitutional powers in foreign affairs, once that claim is rejected Curtiss-Wright as a whole becomes indefensible.

Prior criticism of Curtiss-Wright has failed to discredit the opinion conclusively, in part because that criticism has claimed too much. First, Curtiss-Wright's critics often address not the question of extraconstitutional power, but the opinion's secondary claim that the President (as opposed to Congress) should have a predominant role in foreign affairs.(9) Proponents of congressional leadership in foreign affairs have made powerful arguments in this regard,(10) but in spite of the attention given it, the matter remains debatable. It is clear, at least as a practical matter, that the President does play a leading role in foreign affairs, and has done so since the founding.(11) But the case against Curtiss-Wright need not turn upon the scope of presidential authority in foreign affairs. The truly radical part of Curtiss-Wright is not its emphasis on presidential power, but rather its claim that that power arose outside the Constitution.

Curtiss-Wright's critics have also tried to prove more than necessary in the area of state sovereignty. In so doing, they, as well as those who defend the opinion, focus upon the wrong time period. Specifically, they look not to 1787-89, but to the period surrounding independence more than a decade earlier. Part of Curtiss-Wright's theory was that the states were never fully sovereign. They passed, in Curtiss-Wright's view, from being colonies to being subnational units in the newly independent Union, and so never had foreign affairs power, which is an attribute of full sovereignty.(12) Attacks on Curtiss-Wright argue that the states at one point were full sovereigns, and therefore Curtiss-Wright cannot be correct on this point.(13) But the former proposition is widely disputed, as there are two competing historical theories about what happened at the moment of independence: that the states became independent separately and then created the Union, and that the Union declared independence and so established the collective independence of the states.(14) Moreover, the debate has far-reaching implications in other areas, such as claims of states' rights based on inherent state sovereignty and claims of inherent federal powers in other fields.(15) Because the historical attack on Curtiss-Wright has depended upon establishing the historical priority of the states--with consequent implications for state sovereignty--it has proved unpersuasive to those committed to the alternate historical reading; those skeptical of state sovereignty cling to Curtiss-Wright, not so much for what it says about foreign affairs powers, but for what is says about state versus federal power in general.

A further difficulty is that critics of Curtiss-Wright have not gone far enough in one respect: they have not offered a constitutional alternative to the theory of extraconstitutional foreign affairs power. Curtiss-Wright is attractive, despite its drawbacks, because it appears to answer three difficult questions regarding foreign affairs: the source of federal foreign affairs power, the allocation of federal foreign affairs power, and the extent of the foreign affairs power of the states.

First, where does the federal government get its foreign affairs powers that are not specifically listed in the Constitution? Of course, the Constitution allocates a number of key foreign affairs powers, including the power to declare war, send and receive ambassadors, and enter into treaties.(16) But other foreign affairs powers seem to be missing.(17) Curtiss-Wright obviates the need to search constitutional text for additional powers--for if it is correct, those powers are held by the federal government irrespective of the Constitution.

Curtiss-Wright also resolves the allocation of federal foreign affairs powers. As the Constitution seemingly fails to mention numerous foreign affairs powers, obviously it gives no immediate clue as to their allocation. In the absence of contrary indications, the President may appear the logical locus of many foreign affairs powers, for numerous practical and structural reasons.(18) The Constitution may not appear to make that allocation in so many words, but if foreign affairs powers are extraconstitutional, we need not be concerned about that omission. Lacking explicit guidance, foreign affairs powers may be allocated where they most logically seem to belong. This is the conclusion reached in Curtiss-Wright,(19) and the case continues to be widely cited for this proposition.(20)

Further, it may seem intuitive that

[f]oreign affairs are national affairs. The United States is a single nation-state and it is the United States (not the states of the Union, singly or together) that has relations with other nations; and the United States Government (not the governments of the states) conducts those relations and makes national foreign policy.(21) But where, exactly, does the Constitution say this? The states are precluded from certain aspects of foreign affairs (such as war and treatymaking) by particular clauses of the Constitution,(22) but there is no obvious generalized exclusion of states from matters affecting foreign affairs. True, the Supreme Court held in Zschernig v. Miller(23) that there is some sort of generalized preclusion, but Zschernig and its defenders have been embarrassed by the inability to point to any actual source of this preclusion beyond structural intuition.(24) Curtiss-Wright again provides a solution: if foreign affairs powers are "concomitants of nationality"(25) then of course they exist only in the federal government, which is the only entity possessing national sovereignty. Thus Curtiss-Wright provides an easy resolution of threshold questions to which we have an intuitive response but which, based on the Constitution alone, we may find extraordinarily nettlesome in the proof.

This Article takes a new perspective on Curtiss-Wright in each of the foregoing respects. It is not concerned with the extent of the President's power in foreign affairs, and indeed ultimately suggests that Curtiss-Wright's view of presidential power may have some constitutional basis. It is not concerned with the historical priority of state and federal sovereignty, nor with the historical existence or nonexistence of the states as sovereign entities (in foreign affairs or otherwise) in the early years of independence. Rather, for purposes of discussion this Article assumes that Curtiss-Wright's historical defenders may be correct in their view of what happened at the moment of independence--that is, that the states were never full sovereigns.(26) Instead, it is specifically concerned with the 1787-89 understanding of the source of federal foreign affairs power. With the question so narrowed, I argue that Curtiss-Wright can be rejected conclusively. Finally, this Article considers the constitutional regime of foreign affairs powers in the absence of Curtiss-Wright. As indicated...