When the Supreme Court Blessed the Imperial Presidency: THE STORY OF HOW CLASSICAL LIBERAL JUSTICE GEORGE SUTHERLAND ENABLED EXECUTIVE OVERREACH ABROAD.

Author:Root, Damon
 
FREE EXCERPT

IN FEBRUARY 2018, Solicitor General Noel Francisco, an appointee of President Donald Trump, argued in support of Trump's 2017 executive order banning immigrants from certain largely majority-Muslim countries. The president enjoys "broad authority" to act in this area, the government insisted in its brief to the U.S. Supreme Court, "when he deems it in the Nation's interest." Among the legal authorities Francisco cited in support of this argument was a 1936 ruling on presidential power known as United States v. Curtiss-Wright Export Corporation.

The same ruling has come up under both of Trump's immediate predecessors as well. In 2007, for example, Solicitor General Paul Clement, an appointee of President George W. Bush, cited Curtiss-Wright while urging the U.S. Supreme Court to deny the writ of habeas corpus to enemy combatants held at the U.S naval base at Guantanamo Bay, Cuba. Three years later, Neal Katyal, the acting solicitor general under President Barack Obama, cited it in a brief to the Supreme Court claiming that the "sovereign" power to "expel or exclude aliens" is "largely immune from judicial control."

It's safe to assume that when the White House wants a free hand to operate in the name of foreign affairs, Curtiss-Wright will be invoked. In many ways, the ruling and its author are at the heart of the American presidency's most sweeping claims to unilateral authority.

The precedent involved a 1934 joint congressional resolution granting President Franklin Roosevelt wide discretionary power to stop U.S. firms from selling arms to Bolivia and Paraguay, which were then involved in a conflict known as the Chaco War. Roosevelt wielded this power via presidential proclamation.

Two years later, the Curtiss-Wright Export Corporation was indicted for selling arms to Bolivia. The company fought back, arguing that Roosevelt's proclamation was rooted in an unconstitutional delegation of legislative power to the executive branch. In other words, the argument went, if the federal government wants to prohibit the sale of arms to a particular country, then Congress must pass a statute to that effect. Lawmaking by presidential fiat is not constitutionally sufficient.

But the Supreme Court took a very different view of the matter. "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power," declared the majority opinion of Justice George Sutherland, but also with the "plenary and exclusive power of the President in the field of international relations--a power which does not require as a basis for its exercise an act of Congress." When that sort of executive power is at stake, Sutherland wrote, the president must be afforded "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."

Advocates of expansive presidential power have been trotting out Curtiss-Wright ever since. Indeed, it has proven to be one of the most influential rulings on executive authority in American legal...

To continue reading

FREE SIGN UP