DAMES & MOORE v. REGAN 453 U.S. 654 (1981)

The United States hostage crisis was settled by the 1981 Algerian Agreement under which, inter alia, the United States undertook to terminate certain litigation by American claimants against Iran and its agencies. Under the agreement, the claims involved were required to be submitted to binding international arbitration. By executive order, President jimmy carter suspended various claims pending in American courts. Certain American claimants challenged this action as exceeding presidential authority. The Supreme Court upheld the President's authority to conclude and implement this part of the agreement on the basis of his constitutional foreign affairs powers. It relied on congressional acceptance of broad presidential power during crises in foreign affairs, and on Congress's historic acquiescence in the practice of settling American claims by executive agreement. The Court also held that if the agreement caused a taking of property within the scope of the Fifth Amendment, American nationals had a remedy for compensation in the claims court of the united states.

The decision effectively permitted the President to remove a category of cases from federal court jurisdiction (although the Court characterized its action as only approving a change in the "applicable substantive law"). And it opened the way to subsequent "takings" litigation over a broad area of foreign economic policy. In both respects the Court went beyond previous decisions involving presidential executive agreement authority, and treated the presidential executive agreement as fully equivalent to a Senate-approved treaty. Accordingly, it seems to be the most sweeping judicial recognition to date of presidential foreign relations power.

Phillip R. Trimble
(1986)

Bibliography

Marks, Lee R. and Grabow, John C. 1982 The President's Foreign Economic Powers after Dames & Moore v. Regan: Legislation by Acquiescence. Cornell Law Review 68:68–103.

Trimble, Phillip R. 1984 Foreign Policy Frustrated—Dames & Moore, Claims Court Jurisdiction and a New Raid on the Treasury. Columbia Law Review 84:317–385.