Each branch of government has some authority over foreign affairs. The legislative branch has the power to declare war, raise and support armies, to regulate Commerce with foreign Nations, and to have shape over some foreign laws (or attitudes towards that law). The Senate is also used to advise in the making of treaties, and they have the power to influence ambassador appointments. The executive authority over foreign affairs consists of the ability to appoint Ambassadors and make treaties. Additionally, the President is the Chief of the Army and Navy.
The remainder of this article focuses on the executive authority.
United States v. Curtiss-Wright Export Corp.
299 U.S. 304 (1936).
Even if the regulation would be invalid if related to internal affairs, would the regulation be invalid when the sole purpose is to focus on foreign affairs?
The federal government has sole discretion related to foreign affairs. The President, although acting with the advice of Congress, does not require their authority to act as a foreign negotiator.
The previous order finding the resolution unconstitutional is reversed. The resolution is a valid exercise of executive authority.
In 1934, Curtiss-Wright engaged in activities that violated a Joint Resolution of Congress by attempting to sell and deliver arms to Bolivia, related to a conflict there. The joint resolution authorized the President to prohibit the sale of arms if the prohibition would lead to peace within the region.
Curtiss apposed the resolution saying that the legislature had no authority to grant the President that power.
Regardless of whether the legislature has the authority, the President already has the authority to regulate foreign affairs in this manner. As such, the resolution stands because Congress did not add to the power. Even if the Constitution did not say anything about foreign affairs, all foreign affairs would naturally fall to the federal government (when the Union separated from Great Britain, all foreign power diverted to the federal government, not the colonies). The President is thus in the position, by the power of the Constitution, to regulate all foreign matters. Thus, the resolution stands.
- This falls under Youngstown’s first category (Congress and the President align).
- The President has more power when he acts abroad than when he acts domestically.
- Sovereignty passes directly to the union after the break from Great Britain.
- The President is the “sole organ” who represents the United States.
- The consensus on this case is that the decision is correct but there are a lot of issues with broad statements regarding Presidential power.
Dames & Moore v. Regan
453 U.S. 654 (1981).
Does the President have the authority to settle pending litigation with foreign entities (through the approval of Congress)?
The President has the authority to suspend pending claims. Affirmed.
In 1979, there were several American embassy personal who were held hostage in Iran. As such, President Carter used Presidential authority to withhold Iranian assets and put liens on Iranian property. As such, Dames & Moore sued the government of Iran.
Carter was able to work out a settlement agreement with the Iranian government. In exchange for the release of the hostages, the United States would only conduct litigation through arbitration. President Reagan took office and signed off on the agreement. A result of which was that Dames & Moore’s pending litigation was dismissed. So, Dames & Moore sued Regan saying that the executive branch did not have the authority to make such an agreement.
The court conducts an analysis based on the concurrence in Youngstown. Specifically, this kind of Presidential action falls into the first category. Namely, the President was acting with specific congressional authorization. Although Congress did not specifically approve this particular transaction, Congress has passed multiple laws including the International Emergency Economic Powers Act (IEEPA) and the Hostage Act to address similar situations. In those laws, Congress gave the President authority to settle claims. Because Congress has given express authority in the past, and informally stated their approval here, the Presidential action is authorized.
In other words, Congress implicitly approved the actions.
Note that Carter had executed an executive agreement with Iran, a foreign nation. This agreement is not a treaty, which means that there is no explicit Congressional approval. Regan’s executive order is pretty much an effort to enforce that agreement domestically. So ultimately, the question is, does the President have the authority to execute the agreement followed by the order.
Yes, the IEEPA authorized claims to be dismissed. As for the nullification, then history points towards Congressional approval, despite their silence.
So, the actions taken by Regan fall into Youngstown’s first category. When it doesn’t fit into the first category, this falls into the second category. Those actions under the second category are authorized because this is an emergency.
The other side of this theory is simply a separation of powers argument. A President should not tell the courts how to function (e.g. executive authority to dismiss claims).
This case, as well as Curtiss-Wright are broad Presidential powers while Youngstown is narrow.
Medellin v. Texas
552 U.S. 491 1346 (2008).
The Presidential memo is not binding authority. Affirmed.
Medellin was a Mexican citizen who was arrested, charged, and convicted of Murder in the United States. He was sentenced to the death penalty. The United States at this time was a signatory to the Vienna Convention which entitled foreign nationals the right of consul from their states. Although Medellin was read his Miranda rights, he was not given the opportunity of consul. Shortly after Medellin’s conviction, the ICJ (International Court of Justice) said that the United States was to revisit the convictions and sentences of several individuals, including Medellin.
The President sent a letter to the Supreme Court directing them to follow the direction of the ICJ. The Supreme Court then granted cert for Medellin’s case
We have discussed this case in outlining state sovereignty and treaty power with self-executing treaties. Basically, the this is not a self-executing treaty so the treaty power is not in effect.
The court then turns to the Presidential memo. The reasons cited in the memo are compelling, the President wants other countries to follow the conventions. Additionally, he wants to protect relations with other countries, and show a commitment to international law. However, the President must have the authority from an act of Congress or from the Constitution itself.
Here, there was no act of congress. Because this is not a self-executing and Congress has not acted, there is no act authorizing Presidential authority. In other words, the President does not have the authority to unilaterally enact a treaty that is not self-executing. Thus, the first category in Youngstown is not available.
Second, the second category is unavailable. Medellin argues that Congress’s silence was an acquiescence that makes the claim fall under the second category. This is not the case.
Ultimately, this falls into the third category where there must be Constitutional authority. That authority is lacking.This case is distinguishable from Dames & Moore because here there was not a longstanding history of engaging in this practice. As a result, there is no presumption that action is approved by Congress. Additionally, this is not authorized by “Take Care” power because the treaty is not good law (having not been executed by Congress).
Note that Curtis-Wright exaggerates Presidential power, which is not the case. The President does not have the power to convert a self-executing treaty into good law.
So, what is the takeaway:
- Whenever there is a Presidential power case, start with a Youngstown analysis. Here, this case falls into the last category.
Zivotofsky Ex Rel. Zivotofsky v. Kerry
135 S. Ct. 2076 (2015).
The President is the only United States official with the ability to recognize nationality. Thus, Congress’s statute is unconstitutional and the Court of Appeals is affirmed.
In 2003, Congress passed and the President signed the Foreign Relations Authorization Act. Congress, in this act said that for certification of nationality, those who were born in Jerusalem would be under the nationality of Israel. Up to this point, President’s had been averse to recognizing the nationality of Jerusalem between Israel and Palestine, preferring the two nations to work out individual negotiations. Thus, the President signed the bill but said that the provision impermissibly violated the President’s authority to recognize nationality.
Then the petitioner was born in Jerusalem. On the passport, the parents wished the nationality to be Israel, but the State Department refused. Thus, the petitioners are seeking enforcement of the statute, and the government is seeking an injunction against it.
Following the Youngstown analysis, this Presidential action falls into the third category (the actions of the executive and legislative branches are contrary). As such, the power is scrutinized with caution. In this instance, the Presidential power succeeds. The President has recognition powers vested to him by the Constitution through diplomacy powers. Additionally, the power is exclusive to the President because the Constitution fails to vest the power in Congress and the President has acted unilaterally several times throughout history. Although limited, the power is essential to Presidential duties. Thus, because the statute contradicts the President’s position, it is in violation of the Constitution.
Who has the power to determine the nationality of other countries, Congress or the President? The court says that the President is the only individual who has this power. Congress is not allowed to insert themselves into foreign affairs of this type (the reception clause). This is because the President is the sole representative of the United States.
So, this case is different than a Youngstown analysis because the President has the Constitutional authority rather than Congressional authority.
Hamdi v. Rumsfeld
542 U.S. 507 (2004).
- Whether the government can hold an “enemy combatant” indefinitely.
- What process is available to individuals who contest the status of “enemy combatant?”
You can have an enemy combatant status, but they need to be entitled to due process.
Hamdi was an American citizen who was captured in Afghanistan when he was found taking up arms with the Taliban. Because of his citizenship status, he was sent back to the United States and was detained with the status of “enemy combatant.” He was not allowed access to a lawyer and was questioned extensively. So the Constitutional question is, does the Presidential authority restrict due process for citizens who are engaged in enemy activities.
Hamdi wins on the due process ruling. Hamdi is entitled to some of his rights, including the right to an attorney and against being held indefinitely.
Here is the analysis:
- There is a category of enemy combatants that can exist. The federal government has the power to initially hold.
- American citizens who are enemy combatants are entitled to due process.
- Due process includes the right to reevaluate the status for continued holding, lawyer, produce some evidence, and do so in front of a neutral decision maker at a hearing.
- However, the defendant still has the burden of proof to show that he is not guilty. Additionally, some hearsay evidence may be allowed, the trial could be not formally.
However, the concurring dissent says that there is a statute on point that prevents the President from engaging in the process of holding “enemy combatants.”
On the other hand, Thomas’s dissent is surprised at all that a person fighting against the government is entitled to any due process rights at all.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
President Bush had established a statute which set up military commission to follow certain procedures when people were held by the President. Although the Executive is arguing that the commission is fine by the Geneva convention which does not apply, the Court rejects that argument. In other words, the Geneva convention does apply.
Ultimately, this should have been approved by Congress. However, Congress, after Hamdan, passed a statute that set up hearings for those who were detained but restricted a lot of other rights (including removing habeas corpus rights). Unfortunately for President Bush, the Supreme Court in Boumediene v. Bush, said that this statute was unconstitutional. Although the President aligned with Congress, there were too many rights restricted.
The big takeaway:
- The Geneva convention applies, regardless of the attempts to circumvent the convention.
The War Powers Resolution under 50 USC §§ 1541-48
The President has the authority to mobilize wartime efforts, but needs to do so with a declaration of war. The declaration of war comes from Congress. So, what happens when Congress does not want to declare war, but the President wants to mobilize troops? Can Congress require the President to mobilize in certain situations?
The War Powers Resolution was passed during the Vietnam war. Congress wanted to get out of the war. Ultimately, the Resolution limits the President’s power to initiate military action. Thus, the President is only allowed to enter into hostilities if there is a declaration of war, statutory authorization, or a national emergency created by an attack on the Country. Additionally, the President needs to keep Congress informed on proceedings.
If the President engages in military action without approval, then the President can commit those troops for 60 days and then withdraw the troops unless Congress takes action.
So, can Congress pass this resolution? The Constitutional objection is that the Constitution gives the President the right to mobilize and that Congress is not allowed to exercise that authority themselves. On the other side, Congress is given the express authority to declare war.
For an example of how the President and Congress attempts to weaves around this resolution is through President Obama’s actions in Libya.
Ultimately, the resolution has not had much impact on restraining executive military efforts.
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.