In Foreign Policy, the Court Is Clear: President Is Subject to Will of Congress

In 1984, debating whether a moral difference exists between Soviet and American foreign policy, Defense Secretary Caspar W. Weinberger rested his case largely upon the proposition that “all of our policies--foreign and domestic--must be supported by the people.” “Maybe one, maybe five men in the Kremlin” decided to invade Afghanistan, he argued; in contrast, “we think you can’t have a foreign policy if the people cannot control it . . . . Who can doubt that we cannot literally do anything--we can’t send a soldier anywhere, we can’t spend a dime or a nickel or a shilling--that is not approved by our Congress?”

Now, set aside the question whether a democratically developed foreign policy is necessarily moral. Set aside also questions of whether the Iran- contra operation was moral, or whether the Administration officials who spawned that policy would share Weinberger’s views.

The secretary’s main point, in constitutional doctrine if not always in practice, is indisputable. Since the earliest days of the republic, the President’s power over foreign affairs has been seen by the Supreme Court as largely dependent upon congressional will. The court has never overturned an act of Congress as an unconstitutional infringement on the President’s foreign-relations powers.

No less than Chief Justice John Marshall, in fact, introduced into case law the notion of congressional primacy. The case was Little v. Barreme, decided by a unanimous Supreme Court in 1804. The dispute involved the seizure of a foreign vessel by the United States Navy during an undeclared naval war with France. The seizure was carried out after a direct order, but the order conflicted with the law: The act of Congress permitted the seizure only of vessels going to French ports, and the Navy seized a vessel coming from a French port. The court therefore held the naval captain personally liable in damages for the unlawful seizure.

Although that case was decided a year after Marbury v. Madison, which established the supremacy of the Constitution over congressional legislation, the great chief justice did not consider the possibility that the act of Congress might be unconstitutional. The truth is that it probably never occurred to Marshall or any of his colleagues in government that the President, acting within the charter that many of them had helped write, could disregard this congressional restriction.

Marshall’s influence is evident in the most prominent executive-legislative dispute adjudicated in modern times, one touching directly on foreign relations--the so-called “steel-seizure case” of 1952. During the Korean War, a nationwide strike threatened to shut down the steel industry. President Harry S. Truman issued an executive order directing the secretary of commerce to take possession of most of the mills and keep them running. The President argued that he had “inherent power” to do so. The companies objected, complaining in court that the seizure was not authorized by the Constitution or by any statute.

Justice Hugo L. Black, delivering the court’s opinion, wrote simply that the “President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” Because the power was not conferred by law or by the Constitution, he held the seizure invalid.

For all the elegant simplicity of Black’s opinion, the case is remembered mostly for the concurring opinion of Justice Robert H. Jackson. In reasoning strikingly reminiscent of Marshall’s, Jackson wrote that Congress had effectively disapproved of the seizure and that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He continued:

“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter . . . . Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

It remained for a former Jackson clerk, William H. Rehnquist, now the chief justice, to give this concurrence the status of law. The court adopted Jackson’s analysis in 1981, when Rehnquist applied Jackson’s approach in upholding the Iranian hostage settlement agreement as having been authorized by Congress. In so doing, Rehnquist wrote that Jackson’s opinion “brings together as much combination of analysis and common sense as there is in this area.” Rehnquist then quoted from Jackson, doubting that the forefathers intended to create the new executive in the image of George III.

But now some claim to have found a case that supports a very different view of presidential power: United States v. Curtiss-Wright, decided by the Supreme Court in 1936. Much attention has been directed to disembodied quotations from that opinion, particularly after Lt. Col. Oliver L. North cited it in his testimony to the House-Senate committees investigating the Iran- contra affair. But it is important to know the facts, for they reveal the narrowness of the issue actually decided by the court, in an opinion by Justice George Sutherland.

Congress had enacted a very ordinary law making certain arms sales illegal upon a finding by the President that a ban on those sales would serve the cause of peace. President Franklin D. Roosevelt made the finding, and Curtiss-Wright violated the law. Curtiss-Wright was indicted and convicted, and on appeal challenged the constitutionality of the law on the ground that it violated the doctrine that prohibited the delegation of legislative power to the President.

Sutherland held that that doctrine had not been violated. That is all the case stands for: the proposition that the “non-delegation doctrine” has lesser application in foreign affairs than in domestic affairs. It has nothing to do with the “immunity” of presidential staff; no presidential staff played any role in the case. Nor has it anything to do with “plenary” presidential power--the authority of the President to act in the face of congressional disapproval. In contrast to Little v. Barreme and the steel-seizure case, the President in Curtiss-Wright acted pursuant to express congressional approval. His power was therefore at its maximum, not its “lowest ebb.”

It takes no great insight to see why the opinion was not followed in the steel-seizure case. The source of power Sutherland relied upon is one other than the Constitution--”external sovereignty.” “As a member of the family of nations,” Sutherland maintained, the United States assumed all the “right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”

The whole logic and history of constitutionalism rejects the idea that external, international right is perforce a source of internal, domestic power. That a nation may exercise certain prerogatives under international law logically says nothing about whether, under its domestic law, a particular governmental actor is accorded the power to exercise such prerogatives. The history of constitutionalism is in no small part the history of the rejection of precisely such sovereign prerogatives. That surely was the framers’ choice. For if presidential power flows from a source that transcends the Constitution, why should constitutional restraints apply? Should not such a power be immune from the prohibition against, say, unreasonable searches and seizures, or cruel and unusual punishment?

No one would contend that the President is without certain plenary constitutional powers. The decision to recognize China, for example, or the decision to pardon Richard M. Nixon, or the decision to land on the beaches of Normandy rather than Calais--these are all acts that fell within the President’s exclusive constitutional powers of recognition, pardon, and commander in chief. Yet the source of those powers is the Constitution, and they are subject to its limitations.

Although the President thus possesses a power to negotiate treaties without congressional interference, he clearly does not have the power--claimed by North--to send his representatives to negotiate with anyone, anywhere, on any subject. Could the President’s representatives negotiate with Abu Nidal to assassinate an American citizen?

The Constitution mandates that the President respect the will of Congress, or, if he acts on his own authority, that he own up to his act, make the best arguments he can, and let the marketplace of ideas operate. Then, if we’re to have the system of the Kremlin, we’ll at least know it and choose it.