Presidential Power Cases

“The turn from Madison’s sensitivity for the delicate balance between power and liberty to NSC 68’s assumption that foreign policy ends justify the means occurred not in the early days of the Cold War but between 1890 and 1920. Supreme Court Justice George S. Sutherland uttered the most famous blessing on that turn in 1936 when he wrote the majority opinion in United States v. Curtiss-Wright Export Corporation. But Sutherland’s decision had been shaped two decades before, and, resembling most such blessings, it only affirmed behavior that had long been practiced. Imperial presidencies, weak congresses, and cautious courts, which have been endemic to modern United States foreign policy formulation, appeared at the turn of the century. At the same time, the nation’s foreign relations became global rather than continental; they were driven more by corporate than by agrarian interests, and they were tracked by telegraphs and airplanes instead of by couriers and stage coaches. Those changes radically challenged the constitutional forms that had governed the continental foreign policy for a century. Presidents and the courts met the challenge simply and directly: they largely severed foreign policy from traditional constitutional restraints by declaring that international and domestic relations could be dealt with separately. Actions in the world arena were not unduly to affect liberties at home.” –Walter LaFeber, “The Constitution and United States Foreign Policy,” JAH (1987)

Discussion Questions

• The paragraph above contains the thesis statement behind LaFeber’s argument about constitutional diplomacy and how it evolved in practice over the course of American history. He pinpoints the period between 1890 and 1920 as critical. Why? What were his most persuasive examples suggesting a clear departure in foreign policy practice from the intentions of the Founders?
• The article discusses a now-obscure (at least to the general public) 1936 Supreme Court decision in great detail. Summarize the key facts from the case. Why does LaFeber find Justice Sutherland’s majority opinion to be so revealing and important?

“National pride and stubbornness will not permit these countries to quit until they below up through absolute bankruptcy … and while the show is going on, it is our job as distributors of munitions to get our share. If we don’t, someone else will.” –Clarence “Web” Webster, president, Curtiss-Wright Corp, in 1933 (quoted by Robert Divine in Garraty, p. 256)

CONTEXT –Isolationism and the Nye Committee hearings

THE FOREIGN POLICY CONSTITUTION

(Remixed from the 1787 Original)

1. 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 … He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law (Article 2, Section 2, Clauses 1 and 2-3)
2. The Congress shall have the power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes …To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States …To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations …To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water …To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years … To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces (Article 1, Section 8, Clause 3, Clause 4, Clause 10, Clause 11, Clause 12, Clause 13, and Clause 14)
3. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Article 1, Section 9)
4. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Article 6)
5. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. (Article 1, Section 10)
6. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. (Article 2, Section 1)
7. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. (Article 1, Section 9)

US Supreme Court, War Powers and Foreign Policy

“every word [of the US Constitution] … decides a question between power and liberty.”

“Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger real or pretended from abroad.”

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

“The President was bound to meet [the rebellion] in the shape it presented itself, without waiting for Congress to baptize it with a name.” (Justice Robert Cooper Grier, Class of 1812)

1890 In re Neagle (6-2)

“the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.” (Justice Samuel Miller)

[Commenting] “Yes, as near as I can make it out the Constitution follows the flag –but doesn’t quite catch up with it.” (Secretary of War Elihu Root)

“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. He makes treaties with the advice and consent of the Senate; but he alone negotiates.” (Justice George Sutherland)

“The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.” (Justice Hugo Black)

Matthew Pinsker

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