1936: Supreme Court Rules that President Has Wide Powers to Conduct Foreign Affairs

The Supreme Court rules in United States v. Curtiss-Wright, a case revolving around Curtiss-Wright’s illicit sale of machine guns to Bolivia in violation of a joint resolution passed by Congress. The Court finds that Congress did not cede undue powers to the president in the resolution, and that the president has a wide array of powers in the area of foreign policy making that he does not have in the domestic arena. Justice George Sutherland, who writes the majority opinion, notes the distinctions between foreign and internal affairs, arguing that because “the president alone has the power to speak or listen as a representative of the nation,” Congress may provide the president with a special degree of discretion in external matters which would not be afforded domestically. In an aside to the decision, Sutherland notes what he calls the “plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations,” a power which, if correctly cited, gives the executive branch sole authority to conduct foreign relations in everything from treaties and trade agreements to launching and conducting wars. However, Sutherland’s statement is written as an adjunct to the majority opinion, or dicta, and therefore has no legal stature. In later examinations of Sutherland’s work, many legal scholars will determine that Sutherland is misquoting his original source, the Supreme Court’s first Chief Justice, John Marshall, who as a House member argued that the president has the duty to carry out the nation’s treaty obligations and is the exclusive channel for diplomatic communications. Marshall did not argue that the legislative or judicial branches had no authority over foreign policy, and never espoused that argument once ascending to the high court. Many advocates of the so-called “unitary executive theory” of presidential power will cite Sutherland’s erroneous dicta in making their own arguments for untrammeled presidential power. [Savage, 2007, pp. 141; Oyez (.org), 6/2007]