Chapter 4 - The President

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Chapter 4 - The Presidents National Security
Powers
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Learning Objectives

• What is a delegation question?
• Why does the court have different standards for
  delegation of foreign versus domestic powers.
• What is the "sole organ" doctrine?
• Should there be a different standard for foreign
  affairs than domestic governance, and why?

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US v Curtis Wright, 299 US 304 (1936)

• What is the procedural posture of this case?
• Check the full text if you are not sure
• What are the defendants accused of?
• Why do they want the congressional delegation of
  power declared unconstitutional?
• This is 1936 - what other delegation doctrine
  cases are before the court?
• How does Chadha affect the use of joint
  resolutions?
• What can they be used for that has legal force?

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Bolivia

• What is the Monroe Doctrine?
• Why did we care about Bolivia?
• What is going on in Bolivia and how does the
  joint resolution address it?
• Is this the only time were involved with Central
  and South America?

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The Joint Resolution

• Where do the underlying events take place, in or
  outside the US?
• Does this court see this a foreign affairs issue?
• Why is that critical?
• Think of what else is going on with the
  delegation doctrine at this time

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The Delegated Powers

• What findings does the president have to do to
  make under the joint resolution?
• What does he have to do with the findings to
  trigger the joint resolution?
• What penalties does the law provide?
• Why do the penalties have to come from Congress?
• Why is an issue at Guantanamo?

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The Presidential Declaration

• Now, therefore, I, Franklin D. Roosevelt,
  President of the United States of America, acting
  under and by virtue of the authority conferred in
  me by the said joint resolution of Congress, do
  hereby declare and proclaim that I have found
  that the prohibition of the sale of arms and
  munitions of war in the United States to those
  countries now engaged in armed conflict in the
  Chaco may contribute to the reestablishment of
  peace between those countries, and that I have
  consulted with the governments of other American
  Republics and have been assured of the
  cooperation of such governments as I have deemed
  necessary as contemplated by the said joint
  resolution and I do hereby admonish all citizens
  of the United States and every person to abstain
  from every violation of the provisions of the
  Joint Resolution above set forth, hereby made
  applicable to Bolivia and Paraguay, and I do
  hereby warn them that all violations of such
  provisions will be rigorously prosecuted.

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Constitutional Allocation of Powers

• In this court's analysis, who held the domestic
  powers between the Declaration of Independence
  and the signing of the Constitution?
• Who held the foreign powers during this period?
• What does this mean for the transfer of powers in
  the Constitution?

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The Senate Report of 1816

• "The President is the constitutional
  representative of the United States with regard
  to foreign nations. He manages our concerns with
  foreign nations and must necessarily be most
  competent to determine when, how, and upon what
  subjects negotiation may be urged with the
  greatest prospect of success. For his conduct he
  is responsible to the Constitution. The committee
  consider this responsibility the surest pledge
  for the faithful discharge of his duty. They
  think the interference of the Senate in the
  direction of foreign negotiations calculated to
  diminish that responsibility and thereby to
  impair the best security for the national safety.

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Is this a Proper Delegation?

• The Court's question
• In other words, assuming (but not deciding) that
  the challenged delegation, if it were confined to
  internal affairs, would be invalid, may it
  nevertheless be sustained on the ground that its
  exclusive aim is to afford a remedy for a hurtful
  condition within foreign territory?

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The Sole Organ

• 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.
• What are the possible meaning of this
  formulation?
• Does the president get to make all the foreign
  policy?
• Is he just the spokesman for the US?

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The Congressional Role in Foreign Policy

• How can Congress affect foreign policy?
• Can it forbid specific actions?
• Did this court think that congress should try to
  specifically direct the president on foreign
  affairs?
• Why does the court find that this is not an
  improper delegation of authority case?
• Is the Court's discussion of the history of
  foreign powers just dicta?

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Stop for inauguration