The staying power of erroneous dicta: from Curtiss-Wright to Zivotofsky.

Author:Fisher, Louis
Position:Continuation of VIII. How Courts Compound Judicial Errors through Conclusion, with footnotes, p. 184-219

In 2005, writing for the Court, Justice Thomas decided that a plot to defraud a foreign government of tax revenue violated the federal wire fraud statute. He said: "In our system of government, the Executive is 'the sole organ of the federal government in the field of international relations,' United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)." (190) In making that statement, he did not conclude that the President possessed exclusive or plenary authority over foreign affairs. Instead, Congress had authority to pass the legislation and the President could elect to bring the prosecution.

A year later, the Court held that President George W. Bush lacked authority to create military tribunals to try individuals who gave assistance to the terrorist attacks on 9/11. To the Court, the tribunals violated both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. (191) In a dissent, Justice Thomas said the Court "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs." (192) It was the Court's "duty to defer to the President's understanding of the provision at issue here," a duty "only heightened by the fact that he is acting pursuant to his constitutional authority as Commander in Chief and by the fact that the subject matter of Common Article 3 calls for a judgment about the nature and character of an armed conflict. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)." (193)

In 2009, a unanimous Court held that the Republic of Iraq under applicable law was no longer subject to suit in American courts. (194) Part of congressional policy authorized the President to suspend certain provisions of the Iraq Sanctions Act of 1990. Writing for the Court, Justice Scalia said: "To a layperson, the notion of the President's suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of foreign affairs. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322-324 (1936) (canvassing precedents from as early as the 'inception of the national government')." (195) Justice Scalia also noted: "in the 'vast external realm, with its important, complicated, delicate and manifold problems,' Curtiss-Wright Export Corp., 299 U.S., at 319, courts ought to be especially wary of overriding apparent statutory text supported by executive interpretation in favor of speculation about a law's true purpose." (196) Here the focus is on joint action by the legislative and executive branches.

In 2011, the Supreme Court denied the request of the executive branch to stay the execution of a Mexican national in expectation that Congress would pass remedial legislation. To the Court: "we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation." (197) Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, objected that the Court should have deferred to the executive branch, claiming the Court "has long recognized the President's special constitutionally based authority in matters of foreign relations. See e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936)." (198)


    Scholars who have studied Curtiss-Wright have thoroughly repudiated Justice Sutherland for his careless and false mischaracterization of the sole-organ speech in 1800, an erroneous understanding of the process of treaty negotiation, and misunderstanding the shift of sovereign authority to the United States after the break with Great Britain in 1776. In a 1938 article, Julius Goebel, Jr., of the Columbia Law School evaluated some of the principal tenets of Sutherland's opinion. Before turning to Curtiss-W right, he observed that a "certain amount of history is implicit in the study of constitutional law," but that the teaching of the subject in law schools "has tended toward the abandonment of the historical element" in order to provide room for what he called "the dialectic urge" to analyze cases, including "balance sheets, valuation charts and the profundities of economic theory." (199)

    In the classroom, a law professor "can, as usually he must, assume that the student comes armed with at least a citizen's knowledge of American government and history." This supposition, Goebel said, is "quite unsupported in fact, but it has acquired the force of an irrebuttable presumption of law." (200) Whether justified or not, the assumption "enables the teacher to maintain his propositions of doctrine in appropriate aloofness and detachment from political history." Constitutional cases, "drained of historical significance," may then be more easily "manipulated as so many capsules of legal essence." (201)

    Goebel reviewed what Justice Sutherland in Curtiss-Wright said about America's war of independence after 1776: "As a result of the separation from Great Britain by the colonies acting as a unit the power of external sovereignty passed from the crown not to the colonies severally but to the colonies in their collective and corporate character as the United States of America." (202) In a footnote, Goebel pointed out that although Sutherland cited Penhallow v. Doane's Adm., 3 Dall. 54, 80-81 (1795), nothing in that opinion supported Sutherland's position. In fact, the Court in 1795 agreed that states did exercise what Justice Iredell called "high powers of what I may perhaps with propriety for distinction call external sovereignty." (203) Furthermore, the treaty with Great Britain on September 3, 1783, acknowledged the "said United States viz. New Hampshire, Massachusetts Bay, Rhode Island etc. to be free sovereign and independent States." (204) To Goebel, Sutherland's view of sovereignty "passing from the British crown to the union appears to be a perversion of the dictum of Jay, C.J. in Chisholm's Executors v. Georgia, 3 Dall. 419, 470 (U.S. 1799) to the effect that sovereignty passed from the crown to the people." (205)

    As to Sutherland's statement in Curtiss-Wright that the President "alone negotiates" treaties and that into this field "of negotiation the Senate cannot intrude," Goebel regarded that position as a misleading description of presidential authority in foreign affairs, pointing to early examples of Presidents consulting the Senate before negotiation. (206) Goebel took Sutherland to task for ignoring "the theory of control over foreign affairs both before and under the Confederation." (207) Instead, Sutherland chose "to frame an opinion in language closely parallel to the description of royal prerogative in foreign affairs in the Ship Money Case." (208) Goebel's footnote to this British case from 1637 explores the king's exclusive control over external affairs, a theory of government that the American Framers considered and rejected. (209) Goebel did not analyze Sutherland's understanding of John Marshall's sole-organ speech in 1800.

    A law review article in 1944 by James Quarles expressed surprise that, up to that point, Curtiss-Wright "seems not to have attracted especial notice" in professional journals. (210) Quarles did note, however, that Justice Sutherland raised questions that were not considered "by counsel for either side, either in the District Court or in the Supreme Court; nor is there any allusion to any issue of that sort in the opinion of the District Judge. Indeed, the pages of Mr. Justice Sutherland's opinion devoted to a discussion of that question appear to the present writer as being little, if any, more than so much interesting yet discursive obiter." (211)

    Another analysis of Curtiss-Wright published in 1944 is by C. Perry Patterson, professor of government at the University of Texas. After describing Sutherland's position that external sovereignty passed from the British Crown not to the states but directly to the Union, and that the Union existed before the Constitution, Patterson stated that Sutherland's doctrine of "inherent powers whether in internal or external affairs is (1) contrary to American history, (2) violative of our political theory, (3) unconstitutional, and (4) unnecessary, undemocratic, and dangerous." (212) In Patterson's view, states were sovereign and independent before ratification of the Constitution. (213) The colonies, not the Continental Congress, voted for independence from Great Britain. (214) In that sense, Paterson concluded that Sutherland's doctrine in Curtiss-Wright that Congress "acquired power over the entire field of foreign affairs as a result of the issue of the Declaration is contrary to the facts of American history." (215) Patterson did not analyze Sutherland's understanding of treaty negotiation or the sole-organ speech by John Marshall.

    Two years later, in an article for Yale Law Journal, David M. Levitan wrote more broadly about the implications of Curtiss-Wright for constitutional government, explaining how Sutherland borrowed some of the positions he advanced while a U.S. Senator from Utah. (216) In an article he wrote called "The Internal and External Powers of the National Government," printed as a Senate document, Sutherland argued that the power over external affairs was never possessed by the states but came directly to the national government. (217) Of course that position has been rejected by many scholars, as noted above in this section. After leaving the Senate, Sutherland was invited to deliver a series of lectures at Columbia University, where he reiterated the same theme about external sovereignty. (218)

    After reviewing this material from Sutherland's Senate career and immediately after, Levitan explained that he provided extensive detail to demonstrate the pattern between those positions and his authorship of Curtiss-Wright: "Not only is there a consistency as to ideas, but in fact quotation of language. Few men...

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