§ 6.1 INTERNATIONAL AFFAIRS Ch. 6 sovereignty. Because specific constitutional references to foreign relations are, however, sparse, much of the foreign affairs power has evolved from constitutionally implied powers and extraconstitutional sources. Our effort in this section to understand the constitutional sources of our foreign relations will be first to study the roles of the President, Congress and the courts in foreign affairs as set forth in the text of the Constitution. Then we shall look closer at specific areas of foreign affairs, the treaty power, executive agreements, and the war power. Finally, we will consider the constitutional limits placed on any Congressional definition of "treason." § 6.1 The Executive Traditionally the President has been considered responsible for conducting the United States' foreign affairs.' Justice Sutherland, in the leading case of United States v. Curtiss-Wright Export Corp.,2 acknowledged this principle in a unanimous opinion: [T]he President alone has the power to speak or listen as a representative of the nation. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 3 Blackstone had earlier recognized the historical concept of executive predominance in foreign relations indicating in his Commentaries, "What is done by the royal authority, with regard to foreign powers is the act of the whole nation." 4 Such plenary executive power is not, however, found anywhere in the text of the Constitution. Nor will any examination of the affirmative grants of foreign affairs power in the Constitution reveal that the President is the "sole organ" of foreign relations. Specific enumerations of the executive's foreign affairs powers appear in Article II of the Constitution. The President is empowered to make treaties, with a concurrence of two-thirds of the Senate, and to appoint ambassadors, public ministers and consuls with the Senate's advice and consent. Additionally, the chief executive is authorized, as the representative of the United States, to receive ambassadors and public ministers. The Commander-in-Chief power, constitutionally delegated to the President, also profoundly affects United States' inter Ch. 6 ROLE OF THREE BRANCHES OF GOV'T § 6.1 national relations. Although these provisions attest to the fact the President has an active role in foreign affairs, the executive, in actuality, has gone far beyond these express grants in conducting international relations. Hamilton's Rationale. What sources, in addition to express Constitutional provisions, does the President receive his foreign affairs powers from? Alexander Hamilton, in support of the theory of presidential supremacy in foreign affairs, wrote under the pseudonym "Pacifus" a series of articles published in The Gazette of the United States supporting George Washington's "Proclamation of Neutrality," issued in 1793 after the outbreak of war between Great Britian and France. In these articles Hamilton argued that the first clause of Article II, "the executive power shall be vested in a President of the United States. . . ." was a general grant of power to the executive and that the following specific grants in Article II, except when expressly limited, serve to interpret the general grant. Hamilton concluded that any foreign affairs power not explicitly granted to the Congress devolves by implication upon the president through the executive power clause. As examples, Hamilton cited the President's power to recognize governments and terminate relations with foreign nations under the auspices of the constitutional provision authorizing the executive to receive foreign ambassadors and consuls." Although treaties are subject to the advice and consent of the Senate, the President, by implication, is empowered to continue or suspend the treaty on his own initiative Hamilton believed. Hamilton warned in The Federalist of the danger of restricting the executive's powers too severely,10 President Washington's Position. These implied Constitutional powers were recognized as early as George Washington's administration. Washington, by receiving "Citizen" Genet in accord with the Constitutional provisions allowing the President to receive foreign ambassadors and ministers, recognized the revolutionary government of France, and later, by demanding Genet's recall, ended diplomatic relations with France without consulting Congress." Washington also established historical precedent for limiting Congress's role in the area of treaty making when he refused to comply with the House of Representatives' request to give to Congress papers relevant to the negotiations involving the Jay treaty in 1796. 7. Id. § 2. 8. E. Corwin, The President: Office and Powers 179-81 (4th Rev.Ed. 1957), citing from A. Hamilton, Works 76 (Hamilton, ed.) 9. U.S.Const. art. II, § 3. The executive's treaty negotia 10. See The Federalist Nos. 67, 70: Corwin, The President, supra note 8, at 1617. 11. U.S.Const. art. II, § 3; E. Corwin and L. Koenig, The Presidency Today 30 (1956); Corwin, The President, supra note 8, at 181-82. § 6.1 INTERNATIONAL AFFAIRS Ch. 6 tion powers were, Washington believed, exclusive.12 The President alone was empowered to designate individuals to conduct foreign affairs negotiations abroad and to determine what should be included in international agreements.13 The Supreme Court indirectly legitimized these extensions of the constitutional foreign affairs power in Marbury v. Madison." In Marbury the Court stated that judicial review of conflicts between the executive and Congress over the foreign affairs power would be inappropriate, terming disputes of this nature as inherently political questions. 15 Theories Based on the President's Role as "Commander-inChief" and His Duty to "Take Care" that "The Laws Be Faithfully Executed." Implied foreign affairs powers have also been extrapolated from the Commander-in-Chief clause and the Constitutional provision that the executive shall "take care" that "the laws be faithfully executed." The extension of executive foreign affairs power on the basis of these two grants has not been as successful as Hamilton's claim to the presidential foreign affairs power premised on the "executive power clause" discussed above." " 16 The power attributed to the Commander-in-Chief will be treated later in section III dealing with the War Power. The clause empowering the executive to "take care" that laws are "faithfully executed" has been employed to justify executive action to insure treaty provisions are faithfully adhered to.18 Presidents have even authorized forceful intervention in foreign conflicts under the auspices of this clause contending that the duty to see all laws are faithfully executed also encompasses international law. These assertions have, however, often been thought to be unpersuasive because it is generally understood that this clause applies to international law only to the extent it has been incorporated into the law of the United States in situations occurring either within the United States or affecting American citizens or the government.19 The Curtiss-Wright Case. The Supreme Court acknowledged the unique role of the executive in United States v. Curtiss-Wright Export Co.20 This case involved a controversy surrounding a presidential 12. Corwin, The President, supra note 8, at 181-83. 13. Corwin & Koenig, supra note 8, at 31. 14. 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). 15. 5 U.S. (1 Cranch) at 166. 16. U.S.Const. art. II, § 3. 17. Henkin, supra note 1, at 42. 18. Id. at 54-55. 19. Id. at 55. For example, troops have been sent under presidential authority to Panama (1882), Cuba (1903), Haiti (1916), Korea (1950), Vietnam (1960's); Matthews. The Constitutional Power of the President to Conclude International Agreements, 64 Yale L.J. 345, 360 n. 88, 367 & n. 115-120 (1955). 20. 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). See generally, Lofgren, United States v. Curtiss-Wright Export Corpora ROLE OF THREE BRANCHES OF GOV'T Ch. 6 $ 6.1 Embargo Proclamation issued May 28, 1934,21 prohibiting the sale of arms to countries involved in the Chaco conflict in South America. Authorization for this declaration was granted in a joint congressional resolution passed earlier on the same day empowering the President to issue a proclamation limiting arms and ammunition sales to those involved in the conflict.22 Revocation of the proclamation occurred in November of 1935.23 The defendants, indicted in 1936 for conspiring to sell arms to Bolivia, challenged the joint resolution claiming it was an unconstitutional delegation of authority. The Supreme Court upheld the resolution, finding the proclamation valid. Justice Sutherland, writing for the majority, addressed the role of the President in international relations: [T]he federal power over external affairs in origin and essential character [is] different from that over internal affairs [and] . . participation in the exercise of the power is significantly limited. In this vast external realm. . . 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.24 Sutherland also quoted with approval a statement issued on February 15, 1816 by the Senate Committee on Foreign Relations: The President is the Constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.25 Sutherland concluded that it was important to realize that presidential authority to issue the proclamation came not only from the joint resolution of Congress but also from the "very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations. This power did not need to be based on an act of Congress, the Court recognized, although it was "of course" to be exercised in subordination to express provisions of the Constitution.26 A pragmatic look at the international scene supported this view of the Constitutional framework. The President: tion: An Historical Reassessment, 83 Yale L.J. 1 (1973). 21. 48 Stat. 1744. 22. 48 Stat. 811. 23. 49 Stat. 3480. 24. 299 U.S. at 319, 57 S.Ct. at 220. 25. 299 U.S. at 319, 57 S.Ct. 220 quoting U.S. Sénate Reports, Committee on Foreign Relations vol. 8 at 24 (1816). 26. 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936). See Nowak & Rotunda, A Comment on the Creation and Resolution of a "Non-Problem": Dames & Moore v. Regan, The Foreign Affairs Power, and the Rule of the Court, 29 U.C. L.A.L.Rev. 1129, 1149 (1982). § 6.1 INTERNATIONAL AFFAIRS Ch. 6 not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries. . . . He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary and the premature disclosure of it productive of harmful results.27 Although Sutherland depicts presidential predominance in foreign affairs, it should not be forgotten that in that case the President was acting in accord with congressional policy. Justice Jackson in his concurrence in The Steel Seizure Case 28 interpreted the Curtiss-Wright decision as dealing with situations arising when the presidential actions are in harmony with an act of Congress, not when the President acts contrary to Congress.29 The Jackson interpretation would place a significant limitation on the theory of an unrestrained executive plenary foreign affairs powers. The Supreme Court reaffirmed much of the reasoning of CurtissWright as to the unique nature of the President's foreign affairs power when it refused to review an executive order concerning the involvement of United States citizens with foreign air transportation in Chicago and Southern Air Lines, Inc. v. Waterman Steamship Corp.30 In that case the Civil Aeronautics Board, with the express approval of the President, granted an overseas air route to Chicago and Southern Air Lines and denied it to its rival, the Waterman Steamship Corporation. The proceedings were not challenged as to their regularity, but Waterman nonetheless sought review of the CAB decision as approved by the President. The Court recognized that Congress could delegate "very large grants of its power over foreign commerce to the President." 31 And the President possesses his own foreign affairs power. In the Waterman case the Court found the President drew his powers from both sources. The Court in that case, where the President was not acting in defiance of Congressional direction, reasoned: The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. ... [T]he very nature of executive decisions as to foreign policy is political, not judicial.32 |