Curtiss‐wright Export Corp., United States v.

Curtiss‐wright Export Corp., United States v., 299 U.S. 304 (1936), argued 19–20 Nov. 1936, decided 21 Dec. 1936 by vote of 7 to 1; Sutherland for the Court, McReynolds in dissent, Stone not participating. The powers of the federal government in foreign affairs are derived principally from inferences based on the history and structure of the Constitution, rather than from specific constitutional language. In Curtiss‐Wright, the Supreme Court relied on just such inferences to conclude not only that the foreign affairs power vested in the national government as a whole, but that the president of the United States had “plenary” powers in the foreign affairs field not dependent upon congressional delegation.

Congress, acting by joint resolution, had authorized the president to place an embargo on arms shipments to countries at war in the Chaco region of South America. Acting pursuant to the resolution, President Franklin Roosevelt proclaimed such an embargo. When Curtiss‐Wright Export Corp. was indicted for violating the embargo, it defended itself on the grounds that the embargo and the proclamation were void because Congress had improperly delegated legislative power to the executive branch by leaving what was essentially a legislative determination to the president's “unfettered discretion.”

The Court ruled that the joint resolution and the president's actions were not based on unconstitutional delegation of nonenumerated powers because of “fundamental differences” in national power with respect to internal and to external affairs. Key language from the Court's dictum explaining this conclusion has become a basis for broad executive branch claims to inherent presidential power in foreign affairs (see Inherent Powers).

Justice George Sutherland argued that the powers of sovereignty in foreign affairs did not depend upon express grants in the Constitution. The foreign affairs power had been transmitted immediately from Great Britain to the united colonies as an essential element of nationhood upon the success of the Revolution. Although many scholars have refuted Justice Sutherland's “springing sovereignty” analysis on historical grounds, there is general agreement that the foreign affairs power resides exclusively in the national government.

A more controversial question is raised by the presumptive identity between national power and executive power over foreign affairs that the Court's language and holding suggest. The opinion concluded that if sovereign power resided in the federal government, the power to deal with foreign nations must reside in the executive branch. Consequently, no allocation of specific powers, other than the general conferral of executive power in Article II of the Constitution, was necessary to empower the president to act in foreign affairs matters.

Despite the controversy surrounding it, the Curtiss‐Wright decision is one of the Supreme Court's most influential. Most cases involving executive branch–legislative branch conflicts involve political questions that the courts refuse to adjudicate. Therefore, the sweeping language of Curtiss‐Wright is regularly cited to support executive branch claims of power to act without congressional authorization in foreign affairs, especially when there is no judicial intervention to interpret the meaning of that text.

The Court's characterization of the president's power as “plenary” has been cited as legal sanction for executive branch initiatives in foreign affairs that often result in Congress being faced with a fait accompli. The Curtiss‐Wright opinion has been cited to support the president's power to enter into executive agreements with foreign nations, claims of executive privilege in national security and other matters, as well as much of the executive branch activity during the Vietnam War. Curtiss‐Wright was also cited to attack the constitutionality of the 1973 War Powers Act, requiring the president under certain conditions to withdraw combat troops committed abroad if not authorized by Congress.

The Court has not recognized the full scope of executive power suggested by Justice Sutherland's sweeping language. Congressional authorization may be necessary to legitimize many executive acts. In Regan v. Wald (1984), for example, the Supreme Court cited Curtiss‐Wright in upholding the constitutionality of the president's regulations restricting travel to Cuba expressly on the ground that they had been authorized by Congress. On the other hand, in Federal Energy Administration v. Algonquin SNG, Inc. (1976), the Court validated presidential restrictions on oil imports based on very broad congressional language delegating apparently unlimited regulatory authority to the executive branch.

See also Delegation of Powers; Foreign Affairs and Foreign Policy.

Harold G. Maier