Judiciary Power and Practice

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Judiciary Power and Practice

Terrence R. Guay

The words "foreign policy" and "foreign affairs" do not appear in the U.S. Constitution, and there is nothing in the document to suggest that the three branches of government should treat this policy area any differently than others. Yet with a few notable exceptions, the judiciary branch has played a limited role in foreign policy. The courts have preferred to refrain from influencing foreign policy, often regarding disputes between the executive and legislative branches in this area to be political, rather than legal, questions. Indeed, Article 3, Section 2 states that "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." This judicial deference is controversial, particularly among those who feel that foreign policy has no special claim to be treated differently than other policy areas.


The judiciary's traditional refusal to be drawn into foreign policy matters has its origins in the Constitution, which established responsibility for exercising foreign policy with the executive and the legislature. The president as commander in chief is responsible for conducting war, but Congress is empowered to declare war and raise and maintain military forces. The president may negotiate treaties, but the Senate must ratify them. Congress appropriates funds for the president to use for international diplomacy. While Article 3, Section 2 of the Constitution extends judicial power to cases related to treaties, ambassadors, and the admiralty, and to controversies to which the United States is a party, there is no explicit constitutional role or responsibility for the judiciary in foreign affairs.

The lack of an enumerated constitutional power for the judiciary has not kept foreign policy questions out of the courts. The case of Marbury v. Madison (1803) established the Supreme Court's power of judicial review. This power has come to mean that the Court can determine whether legislative and executive branch actions are permitted within the powers outlined for these branches in the Constitution. Although the case details of Marbury were clearly domestic in nature, judicial review is applicable to all policy areas, including foreign policy.

Despite this power, the Supreme Court has often refused to review cases related to foreign affairs on the grounds that they are "political questions," which are solvable only by the political branches of government, Congress and the president. The Court first adopted this stance in Foster & Elam v. Neilson (1829), which involved an international dispute over title to part of the Louisiana Territory. In those cases it has heard, the Court generally has upheld exercise of the power in questiona power usually delegated by Congress to the president during a foreign affairs crisis.

Judicial abstention in questions involving foreign affairs is controversial. On the one hand, the Constitution provides no expressed powers for the judiciary in foreign affairs. The general foreign affairs powers distributed to the legislative and executive branches are clearly enumerated, although the specifics are vague and contradictory. Given the emotional nature of war, the absence of tools for the judiciary to apply its own foreign policy preferences, and its reliance on the executive to carry out a decision, deference is the only responsible approach for the courts to take. On the other hand is the argument that deference on political questions is an abdication of the judiciary's constitutional responsibilities. Article 3, Section 2 seems to bestow responsibility on the judiciary to review all cases under the laws and treaties of the United States. There is no exclusion for foreign policy, and treaties certainly are elements of foreign affairs. There is little in the Constitution to suggest that the framers regarded foreign affairs as privileged and beyond the safeguards established by the separation of powers. Yet at various times the Court has ruled the following to be political questions: matters of sovereignty of either the United States or another country; boundaries and territorial authority; the determination of U.S. neutrality; the existence of peace and war; the length of a military occupation; the recognition of the independence or belligerency of a foreign state or government; the acknowledgment of diplomatic immunity; the status of aliens; and the validity or breach of a treaty. The doctrine of political questions, then, must be seen as a product of judicial self-restraint.

The other side of the self-restraint coin is a willingness to let stand legislation that increases the authority of the other two branches, especially the executive, to shape foreign affairs. The courts often have used the "necessary and proper" clause of the Constitution (Article 1, Section 8) to permit congressional actions. Sometimes known as the "elastic clause," the necessary and proper clause has been interpreted broadly by the courts, beginning with McCulloch v. Maryland (1819), to give considerable discretion to the ways that the federal government, and in particular Congress, utilizes its expressed powers. In Missouri v. Holland (1920), the Supreme Court ruled that the necessary and proper clause could justify the supremacy of international treaties. Upset that lower courts had ruled a congressional act to protect migratory birds from hunters unconstitutional as a violation of state sovereignty, the federal government negotiated a treaty with Canada to protect the birds. Following Senate ratification of the treaty, Congress passed another law prohibiting hunting of the birds, using compliance with the U.S.Canada treaty as its justification. In affirming the constitutionality of the second law under the necessary and proper clause, the Court opened itself to the criticism that the excuse to implement legislation to comply with international treaties circumvented constitutional restrictions on federal government power, thereby expanding federal authority.

Judicial deference is controversial on other grounds. In Harisiades v. Shaughnessy (1952), the Supreme Court heard an appeal brought by an alien being deported because of his membership in the Communist Party earlier in his life. The opinion of the Court was that policy toward aliens is a component of foreign relations, and that such matters "are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." The decision was contentious because it did not appear that the Court had considered how restraint in reviewing political questions related to national security and foreign policy conflicts with other constitutional values and civil liberties.

Another justification for deference is that courts are not equipped with the expertise to rule on complicated foreign policy issues or treaties based on international law. It may be more expedient for domestic judges to rely upon the views of the executive branch. However, even in foreign policy cases, attorneys provide the necessary information in their roles as advocates. While deference may be the norm in cases with a foreign policy dimension, the judiciary has weighed in with important opinions at critical times in the country's history. Many of these moments occurred while the country was at war.


While it is generally accepted that the Constitution grants war powers to the federal government, and the courts have never seriously questioned this, the source and division of war powers has been much disputed. Reasons for judicial acceptance of federal war powers include: that the power to declare war carries with it the power to conduct war (McCulloch v. Maryland ); that the power to wage war derives from a country's sovereignty and is not dependent on the enumerated powers of the Constitution (United States v. Curtiss-Wright Export Corporations, 1936); and that the power to wage war comes from the expressed powers as well as the necessary and proper clause. With such acceptance of the federal government's central role in war (and foreign policy generally), the Supreme Court has been reluctant to place any limits on the powers Congress or the president devise to conduct it. The courts have declared some statutes created during wartime unconstitutional, but in nearly every case it has been done on grounds that the law abused a power other than war power, and the decision has been rendered only after combat has ceased.

It is perhaps surprising that Congress has declared war on only five occasions: the War of 1812; the Mexican War; the Spanish-American War, World War I, and World War II. When U.S. involvement in other international conflicts was challenged in the courts, the judiciary has ruled that declaration is not required. For example, in Bas v. Tingy (1800), the Supreme Court held that Congress need not declare full-scale war and could engage in a limited naval conflict with France. During the latter half of the twentieth century the United States engaged in numerous military conflicts without declaring war, the most controversial being the Vietnam War. Lower courts ruled that the absence of a formal declaration of war in Vietnam raised political questions not resolvable in the courts. The Supreme Court refused all appeals to review the lower court rulings, although not all its denials were unanimously agreed (for example, Mora v. McNamara, 1967).

The courts have also rebuffed state challenges to federal government war-related actions. In 1990 the Supreme Court upheld a law in which Congress eliminated the requirement that governors consent before their states' National Guard units are called up for deployment (Perpich v. Department of Defense, 1990). Specifically, Minnesota objected to National Guard units being sent to Honduras for joint exercises with that country's military. The issue was between states' control over the National Guard under the Constitution's militia clauses and congressional authority to provide trained forces. The unanimous decision in Perpich further strengthened the power of the federal government in military affairs.

While there has been little disagreement on the federal government's authority to go to war, the appropriate roles of Congress and the president have sparked considerable debate. Article 2, Section 2 of the Constitution begins: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." This sentence has been the source of controversy between the three branches of government. Of particular concern are the circumstances under which the president can authorize the use of force abroad and how and whether Congress should be involved in making such decisions. The role of the judiciary in such matters seems crucial, but the courts have been unwilling participants in these debates.

While such abandonment of judicial review is questionable, there are a series of historical precedents to support the courts' approach. In 1795, Congress authorized the president to call out the militia of any state to quell resistance to the law. The Court sanctioned the president's discretion to determine when an emergency existed and subsequent calling of state militia. Several New England states challenged that law during the War of 1812, but the Supreme Court upheld the delegation of congressional authority as a limited power in Martin v. Mott (1827). In subsequent decades the Court and Congress regarded the president's war power as primarily military in nature. The Supreme Court has never opposed the president's authority as commander in chief to deploy forces abroad. However, during most of the nineteenth century Congress provided the initiative in foreign policy. When presidents in peacetime sought expansionist policies that threatened war, Congress stopped them.

Supreme Court decisions during the Civil War played a central role in shaping the courts' approach to war powers. Congress was in recess when hostilities broke out, so President Abraham Lincoln declared a blockade of Confederate ports, issued a proclamation increasing the size of the army and navy, ordered new naval ships, and requested funds from the Treasury to cover military expenditures. When Congress returned it adopted a resolution that approved the president's actions. However, owners of vessels seized during the blockade and sold as prizes brought suit, arguing that no war had been declared between the North and the South. The Supreme Court ruled in the Prize Cases (1863) that President Lincoln's actions in the early weeks of the war were constitutional, because the threat to the nation justified the broadest range of authority in the commander in chief.

Despite a narrow 54 ruling, the Prize Cases bolstered the powers of the presidency and shaped the tendency of the judiciary to abstain from rulings that would curb war powers. The Supreme Court's decisions, which interpreted broadly the powers of the president as commander in chief, marked the beginning of expansionary presidential actions during war. The national emergency of civil war required that the executive be able to exercise powers that might not be permitted during peacetime. Thus, Lincoln's decisions to declare the existence of a rebellion, call out state militia to suppress it, blockade southern ports, increase the size of the army and navy, and spend federal money on the war effort were not rebuked by the courts. Even the Emancipation Proclamation was issued under Lincoln's authority as commander in chief. Only Lincoln's suspension of habeas corpus in certain parts of the country earned a censure from the Supreme Court.

The world wars of the twentieth century provided opportunities for Presidents Woodrow Wilson and Franklin Roosevelt to push the constitutional envelope. As the United States entered World War I in 1917, President Wilson sought and obtained from Congress broad delegations of power to prepare for war and to mobilize the country. He used these powers to manage the country's economy, creating war management and production boards (coordinated by the Council of National Defense) to coordinate production and supply. His actions included taking over mines and factories, fixing prices, taking over the transportation and communications networks, and managing the production and distribution of food. Because the president had obtained prior congressional approval for these actions, there were no legal challenges to Wilson's authority during the war.

In a novel interpretation of the economic turmoil of the 1930s, President Roosevelt equated the challenge of the Great Depression to war. He sought wide executive-branch powers to address the economic crisis, but the Supreme Court was reluctant to sanction such authority during peacetime. However, once the United States entered World War II, Roosevelt was on more solid footing. Congress again delegated vast federal powers to the president to help win the war, and Roosevelt created many new administrative agencies to aid in the effort. There were very few objections on constitutional grounds, largely because the three branches assumed that the use of war powers by Lincoln and Wilson applied to the current conflict. The Supreme Court never upheld challenges to the authority of wartime agencies or to the authority of the 101 government corporations created by Roosevelt to engage in production, insurance, transportation, banking, housing, and other lines of business designed to aid the war effort. The Court also upheld the power of the president to apply sanctions to individuals, labor unions, and industries that refused to comply with wartime guidelines. Even the case of the removal and relocation of Japanese Americans was considered by the Supreme Court, which ruled that, because Congress had ratified Roosevelt's executive order as an emergency war measure, this joint action was permitted.

The assertion of broad emergency powers by Presidents Wilson and Roosevelt obfuscated the constitutional separation between Congress's authority to declare war and the president's power to wage it. As long as Congress delegated authority to the president and appropriated funds (through its "power of the purse") to support such powers, the judiciary would interpret this as congressional sanction of the president's decision. The courts would not challenge this "fusion" of the two branches' warmaking powers.

The onset of the Cold War did not result in a curb in executive war powers. In 1950, President Harry Truman decided to commit U.S. forces to help South Korea without a declaration of war from Congress. He based the authority for his actions on the United Nations Security Council vote to condemn North Korea's invasion and urge member countries to assist South Korea. However, the Supreme Court ruled that President Truman went too far when he ordered the secretary of commerce to seize and operate most of the country's steel mills to prevent a nationwide strike of steelworkers. The president justified his actions by arguing that the strike would interrupt military production and cripple the war effort in Korea and by claiming authority as commander in chief. In Youngstown Sheet and Tube Company v. Sawyer (1952), also known as the Steel Seizure Case, the Court agreed that the president had overstepped constitutional bounds, but it did not rule out the possibility that such seizures might be legal if done with the consent of Congress. Nonetheless, the Steel Seizure Case is significant as the strongest rebuke by the Court of unilateral presidential national security authority. The country was at war when Truman acted, and Congress had not expressly denied him the authority to act. It was extraordinary for the Court to find that the president lacked authority under those circumstances.

Thus, the Cold War environment did little to curb the gradual expansion of presidential authority during war. In 1955, Congress authorized President Dwight D. Eisenhower to use force if necessary to defend Taiwan if China attacked the island. In 1962, President John F. Kennedy obtained a joint congressional resolution authorizing him to use force if necessary to prevent the spread of communism in the Western Hemisphere. Two years later, Congress passed the Gulf of Tonkin Resolution, which empowered President Lyndon B. Johnson to take all necessary steps, including the use of armed force, to assist in the defense of members of the Southeast Asia Collective Defense Treaty. President Johnson relied on this resolution to wage the war in Vietnam instead of asking Congress to declare war on North Vietnam. Federal courts were asked repeatedly during the late 1960s and early 1970s to rule on the constitutionality of the war. The Supreme Court declined to hear such cases on the view that war was a political question. Although opponents of the war contended that U.S. involvement was unconstitutional because Congress had never declared war, the legislative body continued to appropriate funds for defense, thus implying support for Johnson's, and then Richard Nixon's, policies in Southeast Asia.


While the commander in chief role of the president has stirred little debate in those instances when the United States was attacked by another country, the president's authority to send forces into hostile situations abroad without a declaration of war or congressional authorization has generated much controversy. The tension reached a head during the latter years of the Vietnam War. Beginning in 1969, President Richard Nixon authorized secret bombing raids on neutral Cambodia without informing Congress. The following year he ordered U.S. forces on "search and destroy" missions in that country. In 1972 he directed the mining of North Vietnamese ports, which risked collisions with Russian and Chinese vessels, and one year later ordered the carpet-bombing of Hanoi. The president neither sought nor obtained explicit congressional approval for any of these policies, and he negotiated the 1973 Paris treaty ending the Vietnam War without congressional participation. Nixon defended his actions by arguing that the constitutional distinction between Congress's war power and the president's commander in chief role had become blurred.

For Congress, this was the last straw. The perception that presidents had assumed more authority to commit forces than the Constitution's framers had intended led Congress in 1973 to pass the War Powers Resolution (also known as the War Powers Act) over President Nixon's veto. The main purpose of the resolution was to assure that both the executive and legislative branches participate in decisions that might get the United States involved in war. Congress wanted to circumscribe the president's authority to use armed forces abroad without a declaration of war or other congressional authorization, yet provide enough flexibility to permit the president to respond to attack or other emergencies. Specifically, the War Powers Resolution requires the president to provide written notification to Congress of the introduction of U.S. armed forces into hostilities within forty-eight hours of such action. The president must explain the reasons forces were inserted in a hostile situation, the executive's authority for doing so, and the scope and duration of the military action. In addition, the president is required to terminate the use of military forces after sixty days unless Congress has declared war, extended the period by law, or cannot meet the sixty-day deadline as a result of an armed attack on the United States. The sixty days can be extended for thirty days by the president if the safety of armed forces would be jeopardized by immediate removal. The president is also required to remove forces at any time if Congress so demands by concurrent resolutions (known as a legislative veto). In essence, most members of Congress supported the notion that the president, as commander in chief, is empowered by the Constitution to lead U.S. forces once the decision to wage war is made or an attack on the United States has commenced. What Congress sought with the War Powers Resolution was participation in the decision to commit armed forces at the beginning of hostilities.

Predictably, Nixon and all subsequent presidents contended that the War Powers Resolution was unconstitutional. In virtually every commitment of U.S. troops since 1973, including the Iran hostage rescue attempt (1980), military exercises in Honduras (1983), the participation of U.S. marines in a multinational force in Lebanon (19821983), invasion of Grenada (1983), bombing of Libya (1986), invasion of Panama (1989), humanitarian mission to Somalia (19921994), and bombing of Kosovo (1999), members of Congress complained that the president had not fully complied with the War Powers Resolution.

Critics of the resolution argue that Congress has always held the power to forbid or terminate military action by statute or refusal of appropriations, and that without the clear will to act the resolution is ineffective. The sixty-day termination requirement is a major reason why presidents do not report force deployments to Congress, thereby undermining the objective of the resolution. The imposition of a deadline, some critics contend, would signal a divided country to the enemy, which might then seek to prolong the conflict to at least sixty days, thereby forcing the president to either seek a congressional declaration of war or withdraw U.S. forces. Alternatively, the resolution could be seen as a blank check to commit troops anywhere and for any purpose, subject only to the time limitations, thereby defeating the intended goal of restricting the president's warmaking ability. A more fundamental problem is defining presidential consultation of Congress. Does the War Powers Resolution require the president to seek congressional opinion prior to making a decision to commit armed forces, or simply to notify Congress after a decision to deploy troops has been made but before their actual introduction to the area of hostility? Such wide differences in interpretation of the War Powers Resolution would suggest a clear role for the judiciary.

Surprisingly, the courts have not ruled on the constitutionality of the War Powers Resolution. The first legal challenge to noncompliance with the resolution, Crockett v. Reagan (1982), was filed by eleven members of Congress who contended that President Ronald Reagan's decision to send military advisers to El Salvador must be reported to Congress. A district court ruled that Congress, not the court, must resolve the question of whether U.S. forces in El Salvador were involved in a hostile or potentially hostile situation. The Supreme Court declined consideration of a later appeal. In Lowry v. Reagan (1987), the courts refused to decide whether President Reagan had failed to comply with the War Powers Resolution when he dispatched naval forces to the Persian Gulf. A suit was brought by 110 members of Congress, arguing that sending forces close to the Iran-Iraq war zone required congressional approval. The district court held that it was a political dispute to be dismissed "as a prudential matter under the political question doctrine."

An important question in the postCold War world is whether the War Powers Resolution applies to U.S. participation in United Nations military actions. During the 1990s the United Nations sent multinational forces to trouble spots around the world, usually for peacekeeping and humanitarian purposes. However, after Iraq invaded Kuwait in August 1990, the United Nations contemplated and approved military force against Iraq. The United States took a leading role in this effort. Between August and December 1990, President George H. W. Bush deployed 350,000 troops to the Persian Gulf in response to Iraq's invasion of Kuwait. Although the president sent reports to Congress describing the buildup, he did not seek the legislative body's approval. Forty-five Democratic members of Congress sought a judicial order enjoining the president from offensive military operations in connection with Operation Desert Shield unless he consulted with and obtained an authorization from Congress. However, a federal district court denied the injunction, holding that the controversy was not ripe for judicial resolution because a majority of Congress had not sought relief and the executive branch had not shown sufficient commitment to a definitive course of action (Dellums v. Bush, 1990). On the same day, another federal judge issued a decision in Ange v. Bush (1990), holding that the courts could not decide whether President Bush needed congressional permission to go to war because it was a political question.

Bush claimed that he did not need a congressional declaration of war to use military force against Iraq. However, to bolster political support for the commencement of hostilities with Iraq, and to obtain legislative legitimacy for the participation of U.S. troops in a multinational coalition, the president requested a congressional resolution supporting the implementation of the UN Security Council resolution authorizing member states to use "all necessary means" to restore peace to the region. The Senate (in a 5247 vote) and House (302131) passed the Authorization for Use of Military Force Against Iraq Resolution, stating that it was intended to constitute authorization within the meaning of the War Powers Resolution. Bush's action during the Gulf War was not unique. The deployment of U.S. troops to Somalia, the former Yugoslavia, and Haiti by Presidents Bush and William Jefferson Clinton did not fully comply with the War Powers Resolution either.

The main point here is that the courts have provided no guidance in how to interpret the War Powers Resolution, or in whether the resolution is constitutional at all. Only Immigration and Naturalization Service v. Chadha (1983), which ruled unconstitutional a one-house legislative veto, has implications for the legality of the concurrent resolutions section of the War Powers Resolution. This is because a concurrent resolution is adopted by both legislative chambers but is not presented to the president for signature or veto. The larger question of the appropriate amount of congressional participation in presidential decisions to commit U.S. troops abroad, a question that the War Powers Resolution tried to address, remained unanswered by the judiciary.


While war can be viewed as a specific component of foreign relations, foreign relations in general suffer from the same constitutional ambiguities as war. In addition to the president's commander in chief powers, the Constitution grants the president the power to make treaties and to receive and appoint ambassadors. Together, these grants of power are the source of the president's authority to conduct foreign policy. The Constitution's framers did not want the president to be as powerful as European monarchs in international matters, so Congress was given a voice too. While the president is free to negotiate treaties, they must be ratified by two-thirds of the Senate. Congress's only other constitutional authorizations over foreign policy derive from the powers mentioned earlier: the power to declare war, raise a military, and appropriate funds.

The judiciary has provided little guidance in more clearly demarcating executive and legislative branch powers in foreign policy, often invoking the political question doctrine. The result is that Court rulings either supported the actions of the political branches or refused to judge them. Baker v. Carr (1962) is the principle case outlining the Supreme Court's position on political questions. Although Baker v. Carr concerned the malapportionment of election districts in Tennessee, the Court's comments on political questions apply to domestic and foreign policy issues. Writing for the majority, Justice William Brennan outlined the circumstances under which a case involved a political question and the obligation of federal courts to abstain from ruling. Among other instances, Justice Brennan opined that judicial abstention would be appropriate whenever a case raised foreign policy questions that "uniquely demand single-voiced statement of the Government's views." Despite this attempt at clarification, Baker v. Carr continued to confuse constitutional scholars and lower courts because the guidelines set forth by Justice Brennan did little to clarify the definition of political questions, the circumstances under which an issue is nonjusticiable, or the approach the courts should take when confronted by cases that appear political and nonjusticiable.

For several reasons, thenan explicit constitutional role for Congress confined to treaties, the exclusion of individual states from traditional foreign policy, and judicial deference to the political branches in such mattersthe president and executive branch have been the principle beneficiaries of Court rulings in foreign policy matters. United States v. Curtiss-Wright Export Corporation (1936) was a landmark case that confirmed the president's lead role in foreign affairs. In this case, Congress approved a joint resolution authorizing President Roosevelt to embargo arms shipments to Paraguay and Bolivia, if doing so might contribute to ending the war. After Roosevelt declared an embargo in effect, Curtiss-Wright was subsequently convicted of selling weapons to Bolivia in violation of the embargo. The company challenged the constitutionality of the resolution, arguing that it was an improper delegation of congressional power to the president.

Given that the Court had already struck down major New Deal programs, there was some expectation that it would do the same with respect to arms embargoes. However, in his 71 majority opinion, Justice George Sutherland presented an original and controversial defense of presidential authority in foreign affairs. Sutherland argued that independence from Britain fused the thirteen original colonies into a sovereign nation. He also distinguished between internal (domestic policy) and external (foreign policy) powers of the federal government. Internal powers, he argued, lay with the individual states and are conferred upon the federal government by the Constitution. External powers, however, derive the sovereignty that all countries enjoy, and sovereignty was passed from Britain to the union of states upon independence. Since the powers of the United States to conduct its foreign relations do not derive from, nor are enumerated in, the Constitution, it is impossible to identify or infer them from constitutional language. As a result, the Court's view was that delegation of power to the president in foreign affairs was not to be judged by the same standards as delegation of power over domestic matters. Consequently, the "president alone has the power to speak as a representative of the nation."

Sutherland's opinion is open to criticism from several angles. If the federal government derives powers from sources other than the Constitution, neither the Constitution nor the courts provide guidance in the distribution of such powers between the branches. The implication that foreign affairs powers of the federal government are extra-constitutional goes beyond previous Court opinions that, less controversially, found foreign affairs powers to be vested in the federal government by the Constitution. Further, the notion that the federal government was to have major powers outside the Constitution is not insinuated in the document itself, the records of the Constitutional Convention, the Federalist Papers, or contemporary debates. Sutherland's opinion is grounded in sovereignty, but it is also possible to interpret the Declaration of Independence as creating thirteen sovereign states, and many did conduct their own foreign relations until the Articles of Confederation. Sutherland's reliance on political philosophy and international law, rather than constitutional interpretation, as a basis for foreign policy powers is also controversial. Finally, drawing a clear distinction between foreign and domestic policy is becoming increasingly difficult to do, and an approach that derives different sources of power for each is bound to generate legal challenges. Sutherland's position holds up best if one takes the view that the Constitution is a document whose principle objective is to distribute power between the states and federal government, and among the branches of the federal government. Despite the criticisms, Curtiss-Wright is a landmark case in the broadening of federal and, in particular, presidential authority in foreign affairs.

Presidents have found additional means to increase their foreign policy powers. One is to use executive agreements, since they do not require Senate ratification but have been held by the Court to have the same legal status as treaties (United States v. Pink, 1942). Executive agreements are of two forms: those authorized by Congress and those made on presidential initiative. Authorized executive agreements have provided authority for presidents to negotiate the lowering of tariff barriers and trade agreements. The Lend-Lease Act (1941) granted President Roosevelt the power to enter into executive agreements that would provide war material to "any country deemed vital to the defense of the United States." Numerous executive agreements have been negotiated regarding the stationing of U.S. military forces in other countries. Executive agreements made on presidential initiative have often been obtained during international conflict, including the ending of the Spanish-American War and the deployment of troops during China's Boxer Rebellion. The Supreme Court, in United States v. Belmont (1937), upheld Roosevelt's use of an executive agreement to formalize his decision to recognize the Soviet Union, noting that it had the effect of a treaty and overruled conflicting state laws. Roosevelt used executive agreements extensively in the years leading up to World War II and to negotiate agreements at the Cairo, Tehran, and Yalta conferences. President Lyndon Johnson made many secret agreements with Asian countries during the 1960s, and President Jimmy Carter used executive agreements that constituted the financial arrangement necessary to free American hostages in Iran. In Dames & Moore v. Regan (1981), the Supreme Court ruled that Presidents Carter and Reagan had acted consistently with emergency powers granted by statute to use executive agreements to suspend the financial claims of Americans against Iran, in return for the safe release of the hostages seized during the 1979 Iranian revolution.

While the treaty approval process is described in the Constitution and has raised few problems, the relationship between treaties, domestic laws, and the Constitution is less clear. One area of confusion was whether treaties were superior to national legislation. In Foster & Elam v. Neilson (1829), Chief Justice John Marshall distinguished between a self-executing treaty and a non-self-executing treaty. The former requires no legislation to put it into effect, while the latter does not take effect until implemented through legislation approved by the Congress and president. The superiority of a treaty or statute is determined by whichever is most recent. However, in the case of a non-self-executing treaty, congressional acts take precedence (Head Money Cases, 1884). In Missouri v. Holland (1920), the Court's ruling illustrated how treaties could increase the power of the federal government visà-vis the states. The Court upheld the national law protecting migratory birds on the grounds that it was necessary to carry the provisions of this non-self-executing treaty into effect.

The Court has also considered the termination of treaties. It has held that termination requires an act of Congress. If international obligations are violated as a result of the termination, the matter will need to be renegotiated with the international parties. However, the Court has also ruled that treaties may be terminated by agreement between the contracting parties, by treaty provisions, by congressional repeal, by the president, and by the president and Senate acting jointly. When President Carter decided to officially recognize the government of the People's Republic of China, he unilaterally terminated a mutual defense treaty between the United States and Taiwan. The Supreme Court refused to hear a case brought by Senator Barry Goldwater and nineteen other senators (Goldwater v. Carter, 1979) asking the Court to require the president to first obtain congressional authorization.

It is clear that, for two centuries, the courts have played an important role in resolving foreign policy disputes between the executive and legislative branches. But this is only one of the two principle divisions of power established by the Constitution. The other principle is dividing power between the states and federal government. Along this division, too, the courts have been required to resolve disputes over foreign policy powers.


It is widely believed that the Constitution's framers sought to place control of the new country's foreign relations in the hands of the federal government rather than the states. To ensure that the country spoke with one voice in international matters, the Constitution granted the federal courts power to hear all cases between a state or its citizens and a foreign state or its citizens, and all cases involving ambassadors, public ministers, or consuls. To the framers of the Constitution, foreign policy was first and foremost the arena for waging war and making treaties. However, they also understood that the federal government must have power over some economic issues like setting tariffs and duties and issuing currency, all of which affect international trade and investment. Article 1, Section 10 of the Constitution lists the activities that states are prohibited from doing, most of which are related to foreign policy. However, the Tenth Amendment reserves powers not delegated to the federal government, or prohibited by the Constitution to the states, to the states or to the people.

The ambiguity of this notion of "dual federalism" has been a source of confusion from the start. The role of states in foreign policy was one of the first controversies addressed by the Court in the years following the writing of the Constitution. In Penhallow v. Doane (1795) and Ware v. Hylton (1796), the Supreme Court denied to the states any role in foreign policy matters, ruling that treaty-making power was not affected by the doctrine of dual federalism. It helped to minimize disputes in this area because, for most of the country's history, it was easy to distinguish between domestic and foreign matters. In the later years of the twentieth century, however, the lines blurred. This was particularly true in international economic matters. States and cities routinely sent trade missions abroad to help local firms export and to encourage foreign companies to invest locally. Local government forays into foreign policy accelerated in the 1980s. Many localities enacted boycott legislation to pressure South Africa to end apartheid. Others passed resolutions criticizing nuclear weapons, supporting a freeze in the arms race, and banning nuclear testing. Some formed linkages with Nicaragua and, along with grassroots organizations, provided more humanitarian aid to the Nicaraguan people than all the military aid Congress authorized for the contras, the anticommunist forces supported by the Reagan administration. Still others welcomed Guatemalan and Salvadoran refugees, established "sister city" relationships with communities in other countries (including the Soviet Union), and passed ordinances phasing out ozone-depleting chemicals.

Opponents of local government involvement in foreign policy proposed three arguments. The first was that U.S. foreign policy is most effective when the country speaks with one voice. The second was that foreign affairs, like all public policies, should be shaped democratically by all who would be affected. It would be unfair for some states and cities to make decisions that affect the entire country. The third proposition was that only the federal government has the expertise to make foreign policy. The president, through the National Security Council, Central Intelligence Agency, Departments of State and Defense, and other executive branch organizations, has far more resources and information (much of it secret or sensitive) than governors and mayors. These arguments were countered by the fact that U.S. foreign policy is rarely of one voice. Members of Congress, different departments within the executive branch, multinational corporations, and special interest groups have all expressed views at odds with the president or State Department. In addition, local government foreign policies may be viewed as an extension of the democratic process, since local governments concerned about an international issue can develop policies specific to their citizens' needs, as well as accountability, since there is no national security apparatus for local officials to hide behind. Finally, while the federal government may have access to more information in traditional foreign policy areas (like war and security), local governments are perhaps more knowledgeable in economic policy and have more tools at their disposal (such as tax and other incentives to attract foreign direct investment).

There have been few cases challenging local government foreign policies, and the Constitution helps to explain why. Under the Articles of Confederation, the states engaged in trade wars, pursued their own military campaigns, and carried out independent diplomacy. The Constitution's framers sought to correct this. First, it is broadly understood that the framers sought to place foreign policy firmly at the national level. Second, the Constitution clearly prohibits states from some foreign activities, including making treaties or engaging in war. Third, Article 6 of the Constitution provides that laws and treaties of the United States are "the supreme law of the land" and prevail (or preempt) state law. Fourth, states may not levy taxes or duties on imports or exports, or enact regulations that unduly inhibit interstate or foreign commerce. Consequently, until the late twentieth century there were relatively few foreign policies enacted by local government, and only a handful that posed a serious threat to the ability of the United States to speak with one voice in international relations.

An alternative reading of the Constitution suggests that the framers could have taken all foreign policy activities away from state and local governments but chose not to do so. Instead, they enumerated a small number of limitations on state power. In those instances when local government has become involved in foreign policy, the executive and legislative branches usually have done little to discourage such activity. During the Reagan administration, conservatives in the Justice Department were reluctant to file suit against municipal foreign policies because of their support for the principle of states' rights. Thus, local government foreign policies bring two constitutional principles, states' rights and a national-level foreign policy, into conflict.

Many of the local government activities of the 1980s and 1990s do not fall neatly into constitutional categories (like war, treaties, and duties). For example, the Comprehensive Anti-Apartheid Act of 1986 made it clear that state and local divestment and antiapartheid legislation could remain in effect. In such cases, the judiciary resorted to other interpretations. In Zschernig v. Miller (1968), the Supreme Court ruled against Oregon. That state's government had enacted a law requiring reciprocal treatment of property inherited by a resident alien in Oregon and in the alien's home country. The Court announced that it would now strike down any municipal foreign policies having more than "some incidental or indirect effect" on U.S. foreign relations. The fact that such an effect could vary in importance over time creates an opening for the judiciary to increase its influence in foreign policy matters.

One increasingly popular type of nontraditional foreign policy of local governments is economic sanctions. In 1996, Massachusetts passed a law that made it more difficult for companies with investments in Burma (Myanmar) to receive state procurement contracts. This "selective purchasing" law applied to U.S. and foreign companies and was challenged at two levels. The European Union and several Asian countries asked the World Trade Organization (WTO) to determine whether the "Burma law" violated international trade rules. They felt that the law was yet another example of U.S. "extraterritoriality," that is, applying laws originating within the United States on parties operating beyond the country's borders. However, the claimants agreed to let the U.S. courts decide on the case before pressing for a WTO ruling. A group of companies formed the National Foreign Trade Council (NFTC) and challenged the law within the federal court system in 1998 in National Foreign Trade Council v. Baker. The NFTC's argument rested on three points. The first was that the Constitution gives only the federal government the right to make foreign policy. The second was that the Massachusetts law violated the Constitution's commerce clause, which gives Congress exclusive powers over interstate commerce. The third was that a federal law prohibiting new investment by U.S. companies in Burma, but passed a few months after the Massachusetts law, preempted the state law.

Massachusetts supported its position with several arguments. First, the Constitution explicitly lists the activities in which states may not engage, but economic sanctions is not one of them. Second, because the Massachusetts law did not establish direct contact between the state and Burma, it was not a foreign policy question. Third, important state interests embodied in the First (freedom of speech) and Tenth Amendments to the Constitution permitted the law. Finally, since the foreign affairs doctrine is vague, the courts should leave to the legislative branch the issue of whether to invalidate the Massachusetts Burma law.

The fuzzy area of the constitutionality of state actions in the international realm was underlined by the ways in which federal courts ruled as this case made its way through the judicial system. A federal judge ruled that the Massachusetts law "unconstitutionally impinges on the federal government's exclusive authority to regulate foreign affairs," since the objective of the legislation was to change Myanmar's domestic politics (specifically, to force the military junta to recognize the results of a 1990 election). The appeals court's 1999 ruling was much more sweeping, as it found the Burma law unconstitutional on all three grounds presented by the NFTC. The Supreme Court agreed to hear the case (Crosby v. National Foreign Trade Council, 2000) and ruled against Massachusettsbut for yet a different reason. The Clinton administration avoided taking sides in this dispute, but revealed its support for the NFTC during the Supreme Court hearing. In a unanimous ruling, the Supreme Court concluded that the federal statute banning investment in Burma (enacted shortly after the Massachusetts law) preempted the Massachusetts law on procurement. In other words, the law passed by Congress prevented states from having their own sanctions laws aimed at Burma. The Court has taken a similar approach in other cases, whereby it has nullified a state or local foreign policy because it contradicted a specific federal statute, treaty, executive agreement, or constitutional clause.

Unfortunately, the narrow ruling in the Massachusetts case left the door open for other state and local government actions in the foreign policy area. For example, it was not clear whether a state sanctions law is constitutional when no national law exists aimed at the same country. Nor did the ruling prohibit other measures, such as divestment by state pension funds of stock held in firms doing business in undesirable places. Most importantly, this case presented the courts with the opportunity to clearly demarcate the limits of states' actions in the foreign realm, but the Supreme Court was unwilling to make such a bold statement.

The conflicting constitutional principles that thus arose were difficult to resolve. One solution to controversies of this type was for the courts to treat local government involvement in foreign policy in the same way that they usually treat disputes over war powers. By holding that these are political questions, the courts could leave it to the legislative and executive branches to create laws permitting or barring various activities. For example, if Congress did not want states like Massachusetts enacting selective purchasing laws, it could pass a law prohibiting them from doing so. In this line of thinking, the courts should uphold all local government foreign policies, unless such activities are specifically barred by national legislation or the Constitution.


The constitutional law expert Louis Henkin summarized the judiciary's role in foreign affairs nicely when he wrote:

Overall, the contribution of the courts to foreign policy and their impact on foreign relations are significant but not large. The Supreme Court in particular intervenes only infrequently and its foreign affairs cases are few and haphazard. The Court does not build and refine steadily case by case, it develops no expertise or experts; the Justices have no matured or clear philosophies; the precedents are flimsy and often reflect the spirit of another day. But though the courts have only a supporting part, it is indispensable and inevitable, and if their competence and equipment for making foreign policy are uncertain, they can be improved by stronger, continuing guidance by Congress and, perhaps, by the President.

In examining the power and practice of the judiciary in foreign affairs, one is struck by the potential power of this branch but the rare use of it in practice. In general, the judiciary has tended to regard foreign affairs as fundamentally different from other areas of power. In so doing, it has been more willing (either through actual rulings or the dismissal of cases as political questions) to permit the federal power under consideration, and to give the president the benefit of the doubt in disputes over executive and legislative branch authority. The blurring of the domestic and international, the increasing activism of state and local governments in foreign affairs, and the form and timing of U.S. military intervention abroad will be major factors in coming years that will determine whether the judiciary's restraint in foreign affairs continues.


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See also Congressional Power; International Law; Presidential Power .


The majority opinion in this Supreme Court case, 299 U.S. 304 (1936), upheld an embargo on arms destined for Paraguay and Bolivia, two nations at war. Justice George Sutherland's majority opinion included the following statements:

It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted. The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.

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