THE IRAN--CONTRA HEARINGS : 1936 Ruling on Presidential Powers Spurs Debate

When Lt. Col. Oliver L. North referred to a 1936 Supreme Court decision during his testimony Monday, it marked the second time during the Iran- contra hearings that supporters of President Reagan’s policies have cited a ruling that they claim gives the President virtually unlimited authority to act on his own in foreign affairs, regardless of laws enacted by Congress.

But legal scholars say the case, United States vs. Curtiss-Wright Export Corp., does no such thing.

“There has never been a case in which the court upheld a presidential act in the international realm that violated the will of the Congress,” said Michael J. Glennon, a professor of law at the University of California at Davis and former legal counsel for the Senate Foreign Relations Committee. “All presidents have tended to find Curtiss-Wright useful, but there is less to it than meets the eye.”

North suggested Monday morning that the ruling allows the President to “conduct secret activities.” Earlier in the hearings, Rep. Henry J. Hyde (R-Ill.), a member of the House investigating committee, said the ruling “gives some problems to the congressional ‘supremacists’ who want to tell the President what he can say, to whom he can say it and to whom he can delegate responsibility.”

The court case stemmed from a resolution adopted by Congress that empowered the President to bar arms sales to Bolivia and Paraguay while the two countries were warring over a border area in the late 1920s and early 1930s. Curtiss-Wright sold weapons anyway and contended in court that the authority to impose a ban could not be delegated to the President.

The court ruled that the delegation was proper. Although the case was decided on relatively narrow grounds, Justice George Sutherland, who wrote the opinion, asserted his conviction that the executive branch is best suited for the exercise of sovereignty abroad.

That reasoning has not been followed in subsequent Supreme Court decisions. However, it has been cited “when presidential supporters need some authority to shore up his standing,” according to Peter Raven-Hansen, a professor of law at George Washington University in Washington. Another law professor, Burke Marshall of Yale University, echoed that assessment.

When Hyde cited the 1936 ruling earlier in the Iran hearings, Sen. George J. Mitchell (D-Me.), a Senate committee member and former federal judge, vociferously disputed its relevance and offered to send the Illinois congressman a copy of the Constitution.