Foreign Affairs and Foreign Policy

Foreign Affairs and Foreign Policy Of the three branches of the federal government, the judiciary has least to say on the subjects of foreign affairs and foreign policy. While the Constitution empowers justices to try cases involving foreign ambassadors and to enforce treaties as supreme law of the land, the Supreme Court has made no important foreign policies and usually defers to Congress and presidents regarding foreign relations. Indeed, during the nation's rise as a superpower, courts legitimated the concentration of national and executive authority far more than they limited it. The Constitution governs foreign‐policy makers, but their sources of authority are broader and their limits are less restrictive in foreign than in domestic affairs. The landmark decision United States v. Curtiss‐Wright Export Corp. (1936) declared two influential principles. First, powers of external sovereignty are derived from nationhood rather than the Constitution. Second, quoting a dictum by Congressman John Marshall, presidents have “very delicate, plenary and exclusive power … as the sole organ of the Federal government in the field of international relations” (p. 320). However flawed as history, Curtiss‐Wright implies that states have no foreign powers to surrender and buttresses a reigning modern doctrine that presidents and Congress, acting together, have virtually unbridled discretion in foreign affairs, except for what the Constitution expressly forbids. This case also undergirds growing claims of executive hegemony over foreign policy.

The Court has consistently championed a national monopoly in foreign policy. Federalism is irrelevant externally; state lines disappear. From the initial peace treaty with Britain in 1783, to the recognition of the Soviet Union in 1933, and to President Jimmy Carter's transfer of Iranian assets in 1981, no treaty or executive agreement has been nullified for invading state reserved powers or private property. An early environment case challenging federal protection of migratory birds, Missouri v. Holland (1920), reaffirmed broad implied power to implement treaties domestically. Even executive agreements prevail over state law.

Separation of powers mostly limits the Court itself. Broadly speaking, most foreign policy decisions are beyond judicial review. The prime rationale is the fuzzy political question doctrine: that courts cannot consider subjects belonging by law, function, or prudence to political branches. Territorial boundaries, recognition of governments, termination of hostilities, abrogation of treaties, the legality of the Vietnam War, and commitment of troops abroad are all controversial instances of judicial abnegation. Barriers against excessive delegation of powers by the legislative branch also are minimal.

Individual rights attract greater judicial scrutiny. Easing fears of unfettered executive power after World War II, Reid v. Covert (1957) affirmed that some protections of the Bill of Rights shield citizens under American control abroad. The Court ruled that the Fifth and Sixth Amendments prohibit U.S. military trials of civilian dependents accompanying service personnel overseas for crimes committed in peacetime (See Military Trials and Martial Law). Nor can U. S. citizens be expatriated. (Afroyim v. Rusk, 1967). Citizens also enjoy a constitutional right of foreign travel (Kent v. Dulles, 1958), though the justices upheld travel bans on former CIA agents and a ban on Americans traveling to Cuba.

The Constitution thus intermittently follows the flag. The primary controls on foreign‐policy makers are political, not judicial. Adapting internal law to international facts of life, the Supreme Court has validated more than it has restrained the government's organic growth into an increasingly unitary state dominated by executive leadership in world affairs. The flip side, however, is erosion of the basic domestic‐foreign affairs distinction. Several presidents since World War II have claimed that inherent “executive prerogative” to protect national security abroad justifies constitutional short‐cuts at home. The deprivation of human rights of “enemy combatants”—and some citizens—in the “war on terrorism” are controversial examples.

Ironically, the Supreme Court's main influence abroad may derive from the example it sets as a domestic constitutional court enforcing economic integration, federalism, and individual rights. Many nations and some supranational organizations have adopted the American model of written covenants, a bill of rights, and judicial review to police allocations of power and, especially, to advance human rights.

See also Citizenship; Inherent Powers; National Security; Presidential Emergency Powers; War Powers.

Bibliography

Edward S. Corwin , The President: Office and Powers (1957).
Louis Fisher , Constitutional Conflicts Between Congress and the President, 4th ed. (1997).
Louis Henkin , Foreign Affairs and the United States Constitution, 2d ed. (1996).
Gordon Silverstein , Imbalanced Powers (1997).

J. Woodford Howard, Jr.