Constitutional/Historical Background

-Pacificus/Helvidius debate of 1793 – Does the President have the legal authority to declare neutrality? Hamilton – sided
with the President. Believes in a broad interpretation of the vesting clause (“herein granted” vs. no “herein granted). The
President already has limitations on his power (Art. I, § 8). The President is the “organ of intercourse” with foreign
nations (Art. II). Madison – Responded to Hamilton, was against the President having the power to declare neutrality.
Does not like centralized power. Argued that Congress has the power to declare war so it only makes sense for them to
be the authority for declaring neutrality. If both the Executive and Legislature have the same power they could contradict
one another. Supporters of the proclamation are monarchists (British sympathizers). Worried about corruption if the
President has the power to commence, continue, or conclude war.
-U.S. Constitution: Article I – “All legislative Powers herein granted shall be vested in a Congress.” Power to impeach.
Sec. 7 – Power to raise revenue. Sec. 8 – “The Congress shall have Power to regulate Commerce with foreign Nations,”
“To establish an uniform Rule of Naturalization,” “To define and punish Piracies and Felonies committed on the high
Seas, and Offences of 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 for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions,” “To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers.” Sec. 10 – “No State shall, without consent of Congress . . . enter into any Agreement
or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded.”
Article II – “The executive Power shall be vested in a President.” Sec. 2 – “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,” “shall
appoint Ambassadors, other public Ministers and Consuls, etc.”
Nature of U.S. Foreign Relations Authority
-Ex Parte Merryman – Rule: The Constitution does not give the President the authority to suspend the writ of habeas
corpus. This power is specifically delegated to Congress in Article I. Delegated powers theory – the President has limited
and enumerated powers. (10th Amendment – powers not delegated are reserved to the states.)
-Chinese Exclusion Case – Rule: The U.S. government (through the legislative department) has the authority to exclude
aliens from its territory. Constitutional powers theory – inherent in sovereignty.
-Carter v. Carter Coal Co. – [for Internal affairs] Rule: Can only exercise the enumerated powers in the Constitution.
Powers must be expressly given or implied (necessary implication), otherwise power goes to the states via the 10th
Amendment.
-United States v. Curtiss-Wright – [for External affairs] Rule: The statement that the federal government can only
exercise powers specifically enumerated in the Constitution is only true for internal affairs. The President alone has
power as representative of the nation (inherited this power from Britain) = plenary power in international relations. This
power does not come from the Constitution, but from “the law of nations.”
-3 Theories: Delegated Powers (Ex Parte Merryman), Constitutional Sovereignty (Chinese Exclusion case), Extra-
Constitutional Sovereignty (Curtiss-Wright)
Justiciability: Standing, Ripeness, Mootness
-Campbell v. Clinton – Members of Congress tried to sue the President, arguing he had “nullified” their votes. Court said
they had lack of standing to sue. Congress had legislative remedies it could exercise to stop the President (could have
passed a vote, chosen not to fund this, impeached the President, etc.) “Complete” nullification of votes might create
standing.
Political Question Doctrine
-Goldwater v. Carter – President Carter acted without Congressional approval in ending a defense treaty with Taiwan.
Rehnquist: believed this was a political question (how the President and Congress would conduct foreign affairs) and
found the case not justiciable. Powell: Did not find the case ripe for judicial review (Congress had not formally
challenged the President’s authority so no conflict yet).
-Zivotofsky v. Clinton – Passport case (State Department policy to just list Jerusalem). Roberts majority opinion: This
case did not involve a political question, instead the court needs to review if the statute (seeking to allow people to write
Israel- contrary to State Department policy) is constitutional. Courts review statutes all the time. Did it intrude upon
presidential powers? President has the sole power to recognize foreign sovereigns (from Article II).
Foreign Sovereign Immunity – In general, foreign sovereigns are entitled to immunity for public or sovereign acts, but
not for private or commercial acts.
-Saudi Arabia v. Nelson – Held that an action alleging personal injury resulting from unlawful detention and torture by
the Saudi government is not based upon “commercial activity” within the meaning of the FSIA. No jurisdiction to hear
the case.
-A state engages in commercial activity under the restrictive theory when it exercises “only those powers that can also be
exercised by private citizens.” Where it acts “in the manner of a private player within the market.” The nature of the act
should be commercial.
-*White and Blackmun concurrence: Think it was commercial but not “carried on in the United States”/no substantial
contact.
-FSIA is the exclusive authority for jurisdiction to sue sovereigns. § 1605(a)(1) – explicit or implicitly waiving immunity
(breaking jus cogens norms like piracy, genocide, etc.). § 1605(a)(2) – commercial activity exception. § 1605A –
terrorism exception to the jurisdictional immunity of a foreign state.
Act of State Doctrine – U.S. courts will not examine the validity of official acts of foreign sovereigns done within their
own territory.
-Banco Nacional de Cuba v. Sabbatino p.70 – The judiciary, in line with the Act of State Doctrine, will not examine the
validity of a taking of property within its own territory by a foreign sovereign government recognized by this country in
the absence of international agreements to the contrary, even if the taking violates customary international law.
Handout
Republic of the Philippines v. Marcos
Congress and the President in Foreign Relations
Sources of Congressional Power
-Fong Yue Ting v. United States – Case requiring Chinese immigrants to obtain certificates of residency, and if they
failed, had to have a white witness verify. The Court held in favor of the U.S. government – has inherent authority to
regulate the entry of immigrants
-United States v. Clark – Rule: Congress’ power to regulate foreign commerce is much broader than power to regulate
interstate commerce. Combination of requiring travel in foreign commerce, coupled with engagement in a commercial
transaction while abroad = foreign commerce.
-United States v. Bellaizac-Hurtado – Ship carrying cocaine in Panamanian waters. Drug trafficking is not an “offence
against the Law of Nations” under the Offences clause of the constitution. “The power to ‘define’ offenses against the
law of nations does not grant Congress the authority to punish conduct that is not a violation of the law of nations.”
Sources of Executive Power
-Youngstown Sheet & Tube Co. v. Sawyer – Case where the President signed an EO directing the secretary of commerce
to take possession of steel mills and keep them running in light of a potential strike, to support national defense and war
effort. There was no statute from Congress. Plaintiffs brought suit alleging that the President’s order equaled an exercise
of lawmaking, a function of Congress
Rule: The President’s power must stem from an Act of Congress or the Constitution. Neither existed here.
Lawmakers = Congress, not the President. Frankfurter: “historical gloss” approach – Presidential action becomes custom
because Congress sleeps on their rights for years. Believed Congress made a conscious choice (they have specifically
provided for executive seizure before, could have here). *Jackson – 3 Categories (1) cases in which the President is
acting with express or implied authority from Congress, his authority is at its maximum (2) cases in which Congress has
thus far been silent, referred to as a ‘zone of twilight,’ may sometimes enable measures on the President’s independent
powers (3) cases in which the President is defying congressional orders, his power is at its lowest ebb; can only rely on
his own constitutional powers minus any constitutional powers of Congress over the matter.
Relationship Between Congress and the President
Congressional Support for Presidential Action
-Dames & Moore v. Regan – President invoked a Congressional Act and froze Iranian assets in the U.S. Next President
then nullified all legal claims against Iran in agreements with Iran. D&M sued claiming this is beyond the scope of
presidential power. Court held that the Act constituted specific congressional authorization for the President to do this
(1st Jackson category) – emphasized narrow ruling.
Conflicts Between Congress and the President
-Zivotofsky v. Kerry (Zivotofsky II) – Passport case. Foreign Relations Authorization Act 214(d) invades the President’s
exclusive power to recognize foreign nations (from the text and structure of the Constitution – Reception Clause, power
to make treaties). Important for the President to have one voice in recognition. Precedent and history also supports this
position.
Preemption - States and Foreign Relations – Express (rare), Conflict, Obstacle, Field, Dormant
-Crosby v. National Foreign Trade Council (Mass Burma) – Obstacle preemption. “We will find preemption where it is
impossible for a private party to comply with both state and federal law, and where ‘under the circumstances of a
particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purpose
and objectives of Congress.” Bargaining chips argument – the state Act reduces the value of the chips created by the
federal statute (weakens the federal government’s foreign relations leverage). Has nationwide consequences (not just
affecting Massachusetts). “One voice” theory of preemption.
-Arizona v. United States – Case involving state law making certain immigration-related things crimes (unlawful
presence, working or seeking work, etc.). The Court went through and found most provisions preempted by federal law.
Field preemption, government’s power to “establish an uniform Rule of Naturalization,” One voice theory – important in
immigration issues because foreign countries have great interest in their foreign nationals. Obstacle/conflict preemption
– imposed sanctions on acts that federal law did not make a crime. Scalia dissent: states’ rights advocate – 10th
amendment argument, states entitled to their own immigration policy.
Treaty Preemption – IN ORDER TO HAVE PREEMPTIVE EFFECT, A TREATY MUST BE SELF-EXECUTING
-Clark v. Allen – California woman died and left property to German resident relatives. Court said there was no conflict
preemption. Interest balancing test – federal vs. state.
Dormant and Executive Branch Preemption – Dormant preemption – Courts will invalidate state law even without
federal law – federal government has “dormant” power.
-Zschernig v. Miller – Estate of Oregon resident who died and sole heirs were residents of East Germany. Oregon law
had a provision that property would revert to the state unless the foreign heirs could receive proceeds without it being
confiscated. Court said this state law intrudes on foreign affairs – it has a direct impact on foreign relations and may
adversely affect the power of central government. The court considers the above provision a “foreign policy attitude”
that states should not be making. -Do not want states criticizing foreign governments.
-American Insurance Association v. Garamendi – California Holocaust Victim Insurance Relief Act (HVIRA) versus
Executive agreements the federal government made with the foreign companies. Rule: Valid executive agreements can
preempt state law if there is an express preemption clause (there is not in this case) or if there is an “asserted inference”
of preemption. Looks at state vs. national interests, and whether or not this is an area of traditional competence (Court
says conflict preemption but seems similar to obstacle/bargaining chips).
The Treaty Power and Federalism
-Missouri v. Holland – Migratory Bird Treaty. Court held that the treaty was self-executing, not unconstitutional, and so
states need to follow (preempts state law).
-Bond v. United States – Case where woman put chemicals all over friend’s stuff, burning her. Violation of the Chemical
Weapons Convention Implementation Act? Court says there are “unexpressed presumptions” unless explicit. Looks at
history and intent. The language of the statute suggests Congress did not intend the statute to reach cases like this. Rule:
While Congress has the authority to create legislation to enforce treaties, it must do so while respecting the traditional
division of federal vs. state.
Conditional Consent (Treaties)
Reservations = A party may choose to “reserve” a portion of the treaty, meaning that a portion of the treaty does not
apply and that it is not a party to that part of the treaty.
Understandings/Declarations = Used to inform others how a party sees a treaty’s provisions. The party still remains a
party to the treaty.
Reliance on Foreign and International Materials in Constitutional Interpretation
-Roper v. Simmons - The Court ruled that standards of decency have evolved so that executing minors is "cruel and
unusual punishment" prohibited by the Eighth Amendment. The Court pointed to "overwhelming" international opinion
against the juvenile death penalty.
Delegation of Authority to International Institutions
-Sanchez-Llamas v. Oregon – ICJ interpretations of treaties deserve only “respectful consideration” (ICJ decisions are
NOT binding precedent). The Court says that the ICJ decision in this case overlooked the importance of procedural
default rules in an adversary system like the U.S. Dissent – thinks we should give greater deference to ICJ decisions for
the sake of uniformity in treaty interpretation.
International Law in the U.S. Legal System
Treaties
Self-Execution
-Foster v. Neilson – Treaties are to “be regarded in courts of justice as equivalent to an act of the Legislature whenever it
operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract,
when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the Judicial
Department, and the Legislature must execute the contract before it can become a rule for the Court.”
-Asakura v. City of Seattle – Treaty is binding on states when “it operates of itself without the aid of legislation, state or
national” and self-executing treaties are the supreme law of the land.
-Medellin v. Texas – Case involving a memo from the President saying the U.S. will give effect to the ICJ’s decision in
Avena. Majority opinion: focuses on text. UN Charter – “undertakes to comply” – not self-executing like “shall or
“must.” By writing the memo, the President was making a non-self-executing treaty, self-executing. President cannot
create new law like this (3rd Youngstown category). Dissent: gives practical, context specific criteria for determining if a
treaty is self-executing or not – look at text and history, subject matter and related characteristics.
War Powers
Undecalared war with France
-Bas v. Tingy – Was France an enemy? Yes. If war is declared in form it is of the perfect kind because one whole nation
is at war with another whole nation. If hostilities are more confined (limited to places, persons, and things) then it is
imperfect war but still a public war. General enemy vs. Partial enemy
War of 1812
-Brown v. United States – “It appears to the Court, that the power of confiscating enemy property is in the legislature,
and that the legislature has not yet declared its will to confiscate property which was within our own territory at the
declaration of war . . .”
The Vietnam War
-Orlando v. Laird – “the constitutional delegation of the war-declaring power to the Congress contains a discoverable
and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war.” “The test
is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question.” Did both
branches collaborate?
The President’s Independent Military Powers
The Bombardment of Greytown
-Durand v. Hollins – For the protection of the lives or property of the citizen, the President has discretion stemming from
necessity to act abroad.
The Civil War
-The Prize Cases – President’s right to institute a blockade – The President as Executive Chief of the Government and
Commander-in-chief of the Army and Navy was the proper person to make such notification. “The President was bound
to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”
The Libya Intervention of 2011
-Libya Memorandum – “historical gloss” arguments that “our history is replete with instances of presidential uses of
military force abroad in the absence of prior congressional approval.” Can employ military force in defense of important
national interests so long as it does not constitute a “war” within the meaning of the Declaration of War Clause (which
would require prior congressional authorization). In determining whether a particular planned engagement constitutes a
“war” – requires a fact-specific assessment of the “anticipated nature, scope, and duration” of the planned military
operation.
Military Detention of Alleged Terrorists
-Authorization for Use of Military Force (2001 AUMF) – President has authority to “take action to deter and prevent acts
of international terrorism against the United States.” Authorized to use “all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or persons.”
What we need now is a new AUMF – should balance ambiguity about targets (versus naming specific groups) with time
limits.
New draft – would be specific in naming organizations and associated groups. Establishes a process for Congressional
oversight. Would repeal and replace the 2001 AUMF and set a 5 year time limit.
-War Powers Resolution – Reels in the President’s power to initiate hostilities (symbolic power? No enforcement
remedy) Congress was trying to “fulfill the intent of the framers.” Must have: A declaration of war, statutory
authorization (specific), or a national emergency. Otherwise 60 days to get out.
- Terms of the war powers act
1) Intro into hostilities
2) introducing armed force territories
3) increasing the amount of troops
- President has 90 days to get statutory authorization or formal declaration of war.