United States v. Curtiss-Wright Export Corp. 1936

Appellant: United States

Appellee: Curtis-Wright Export Corporation

Appellant's Claim: That the president has constitutional authority to prohibit arms sales to foreign nations at war.

Chief Lawyers for Appellant: Homer S. Cummings, U.S. Attorney General; Martin Conboy

Chief Lawyer for Appellee: William Wallace

Justices for the Court: Louis D. Brandeis, Pierce Butler, Benjamin N. Cardozo, Chief Justice Charles E. Hughes, Owen J. Roberts, George Sutherland, Willis Van Devanter

Justices Dissenting: James Clark McReynolds (Harlan Fiske Stone did not participate)

Date of Decision: December 21, 1936

Decision: Ruled in favor of the United States by finding that the president holds unwritten powers to conduct foreign policy.

Significance: By broadly describing executive power in foreign affairs, the Court provided a justification for the president to act in foreign affairs without requiring congressional approval. The ruling laid the groundwork for the exercise of future presidential authority in decisions concerning U.S. activity in foreign countries.

In keeping with the principle of separating power between the branches of the government, in 1787 the Framers of the U.S. Constitution assigned some foreign affairs powers to Congress and some to the president. However, much was left undefined, particularly responsibilities during peacetime. Congress can regulate international commerce (trade), declare war, and approve treaties signed by the president. The president is commander-in-chief of the military, appoints ambassadors to foreign nations, and negotiates foreign treaties. The role of the states and the courts in foreign affairs is fairly limited.

Through the nineteenth century, the United States was not a world power and foreign affairs not a primary concern. However, at the beginning of the twentieth century the United States began to emerge as a world power with the president often playing the main role in shaping and carrying out U.S. foreign policy. Congress began regularly assuming a lesser role in developing policy, instead primarily reacting to actions taken by the president such as, providing funds for presidential initiatives (programs) or approving treaties.

Bolivia and Paraguay at War

In the mid-1930s Bolivia and Paraguary, two South American countries, went to war over a dispute as to who controlled an area known as the Chaco region following the discovery of oil in the area. U.S. arms (weapons) manufacturers were selling weapons to both countries. Concerned about remaining officially neutral in the war, Congress passed a resolution in May of 1934 giving President Franklin D. Roosevelt (1933–1945) authority to impose an embargo (prohibit trade) on arms shipments to the two countries, particularly if he believed it might contribute to the ending of the war. Four days after passage of the resolution, Roosevelt, believing it would help restore peace, used the authority to proclaim an embargo.

Curtiss-Wright Export Corporation continued selling armed aircraft to Bolivia. The U.S. attorney general filed suit in federal district court to force Curtiss-Wright to comply with the embargo. The company argued the embargo was an illegal use of presidential power because Congress, as the regulator of interstate commerce, had unconstitutionally delegated its powers to the executive branch, in violation of the separation of powers doctrine. The district court ruled in favor of Curtiss-Wright and the United States appealed the decision to the Supreme Court.

Broad Executive Powers

Before the Court was the primary question: did Congress' resolution unconstitutionally delegate (give your authority to another) congressional powers to the executive branch? If so, how much power could Congress constitutionally delegate. Justice George Sutherland, writing for the 7-1 majority, noted that this case fell into an area of governing not specifically addressed by the Constitution. However, he found that simply by the Unites States being a sovereign (politically independent) nation before the Constitution was written, that it had certain inherent (natural) powers to conduct international relations regardless if written in the Constitution or not. The United States had to meet international responsibilities. Sutherland wrote,

[T]he investment of the federal government with the powers of [conducting foreign affairs] did not depend upon . . . 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 [fixed] in the federal government as necessary concomitants [parts] of nationality [being an independent nation] . . .

Further, Sutherland wrote it was primarily the president's responsibility to carry out foreign policy and he did not need an act of Congress before taking action. Sutherland commented that the president has "plenary [absolute] and exclusive [not shared] power . . . as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress." No specific grant of foreign affairs powers to the president needs to be provided in the Constitution. Unlike domestic issues where Congress must supply clear guidelines to the executive branch when delegating congressional powers, delegation of foreign affairs powers can be broad giving the president considerable discretion (choice) on how to proceed.

Since the nation needed strong and decisive leadership for conducting world affairs, Sutherland concluded that such national sovereign powers as dealing with foreign nations must be controlled by the executive branch of the federal government. Therefore, the Court ruled that Roosevelt was acting within his authority in establishing the embargo and the companies must comply.

JUSTICE GEORGE SUTHERLAND

T he United States v. Curtiss-Wright Export Corp. (1937) decision was remarkable not only for recognizing very broad presidential powers in foreign affairs. It was also a rare instance for Supreme Court Justice George Sutherland (1862–1942) to write a Court opinion in support of an action taken by President Franklin D. Roosevelt (1933–1945). The justice had long been an obstacle to Roosevelt's governmental programs.

Sutherland was born in Buckinghamshire, England in 1862 and received a law degree from the University of Michigan Law School in 1883. He became a U.S. House representative from Utah from 1901 to 1903 and a Senator from 1905 to 1917. President Warren G. Harding appointed Sutherland to the U.S. Supreme Court in 1922.

A strong advocate for private rights and limited government, Sutherland was a key member of a conservative Court that repeatedly overturned laws regulating business activity, claiming they were an invasion of property and contract rights. Typically, in Adkins v. Children's Hospital (1923) Sutherland wrote the decision striking down a law setting minimum wage standards for female workers. Sutherland claimed it violated a woman's right to negotiate contracts. In the 1930s Sutherland and the Court consistently struck down federal acts passed to revive the nation's ailing economy as part of the New Deal program. With strong pressure from President Roosevelt and the public for the Court to adopt a more flexible perspective on economic regulation, Sutherland retired in 1938. He died in July of 1942 in Stockbridge, Massachusetts at the age of eighty years.

Controversial Interpretation

Justice Sutherland's finding was controversial for its assumptions that foreign policy power was so strongly located with the president. However, the landmark decision established the doctrine of inherent powers. With this sweeping view of presidential powers provided by the Court, the decision provided justification for future presidents, on numerous occasions, to make foreign affairs decisions that were later sent to Congress only after the commitment had already been made. The Court has almost always supported presidential actions in foreign affairs and war actions. Twice the Court even upheld executive agreements that did not receive Senate ratification (formal approval).

Primary examples of executive foreign affairs power were presidential actions taken in the course of the Vietnam War (1957–1975). Rebellion and disarray escalated in the country of South Vietnam in the late 1950s and early 1960s. In 1964 Congress passed the Tonkin Gulf Resolution giving the president power to take "all necessary measures" and "to prevent further aggression" in South Vietnam. Through the remainder of the 1960s presidents Lyndon B. Johnson (1963–1969) and Richard M. Nixon (1969–1974) committed a half million American soldiers to Vietnam and ordered countless military actions in an attempt to halt a communist takeover of South Vietnam. Largely failing to achieve the set goals, the presidential actions came under increasing scrutiny by Congress and the American public. In 1973 Congress passed the War Powers Act in an effort to restrict presidential authority in committing American troops overseas without first reaching an agreement with Congress.

Overall, this landmark decision further added to the growth of presidential powers through U.S. history. The powers of the president over two hundred years had grown well beyond what the original Framers of the Constitution likely had envisioned. It also reaffirmed under the principle of the separation of powers the Court's commitment to stay out of foreign policy disputes. Foreign relations issues are to be resolved by the two political branches of government, the president and Congress.

Suggestions for further reading

Barber, Sotritos A. The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press, 1975.

Briggs, Philip J. Making American Foreign Policy: President-Congress Relations from the Second World War to Vietnam. Lanham, MD: University Press of America, 1991.

Fitzgerald, John L. Congress and the Separation of Powers. New York: Praeger, 1986.