Con Law I

1

• War Foreign Affairs
• Mar. 30, 2004

2
Structural Themes

• Judicial Review
• Federalism
• Separation of Powers

3
Structural Themes

• Judicial Review

• Justiciability and Political Question
• War foreign affairs
• Rehnquists plurality opinion in Goldwater v.
  Carter
• Baker v. Carr Unusual need for unquestioning
  adherence to a political decision already made,
  or the potential for embarassment from
  multifarious pronouncements by various
  departments on one question
• Act of State Doctrine
• precludes courts of one country from questioning
  validity of public acts a recognized sovereign
  power commits within its own territory. Banco
  Nacional de Cuba v. Sabbatino (1964)
• Legality of war
• S.Ct. refused to decide constitutionality of
  Vietnam war

4
Structural Themes

• Judicial Review
• Federalism

• Pre-constitutional distribution of power
• Constl allocation betw. federal govt and states

5
Federalism Foreign Affairs

• Pre-constitutional distribution of power
• States never sovereign (in international sense)
• Never had power over foreign affairs
• Articles of Confederation Art. IX. The United
  States in Congress assembled, shall have the sole
  and exclusive right and power of determining on
  peace and war... of sending and receiving
  ambassadors -- entering into treaties and
  alliances
• Sovereign power in fed govt is extra-constl
• the powers to declare and wage war if they had
  never been mentioned in the Constitution, would
  have vested in the federal government as
  necessary concomitants of nationality.

6
Federalism Foreign Affairs

• Constl allocation betw. fed govt and states
• Art. I, 8 The Congress shall have power to
• pay the debts and provide for the common defence
• declare war, grant letters of marque and
  reprisal, and make rules concerning captures on
  land and water
• raise and support armies ... provide and maintain
  a navy
• make rules for the government and regulation of
  the land and naval forces
• provide for calling forth the militia to execute
  the laws of the union, suppress insurrections and
  repel invasions
• provide for organizing, arming, and disciplining,
  the militia..

7
Federalism Foreign Affairs

• Constl allocation betw. fed govt and states
• Tenth Amendment
• The doctrine of enumerated powers applies only
  to powers which the states had. Curtiss-Wright

Conflict in the Chaco

• Art. I, 10, 1 "No State shall enter into any
  Treaty, Alliance, or Confederation grant Letters
  of Marque and Reprisal"
• Art. I, 10, 3 No state shall engage in
  War, unless actually invaded, or in such imminent
  Danger as will not admit of delay"

8
Federalism Foreign Affairs

• Notable quotes
• Power over external affairs is not shared by the
  States it is vested in the national government
  exclusively. US v. Pink (1942)
• "For local interests the several States of the
  Union exist, but for national purposes, embracing
  our rela-tions with foreign nations, we are but
  one people, one nation, one power. Chinese
  Exclusion Cases (1889)
• "In respect of all international negotiations and
  compacts, and in respect of our foreign relations
  generally, state lines disappear. As to such
  purposes the State of New York does not exist."
  US v. Belmont (1937)

9
Structural Themes

• Judicial Review
• Federalism

• Separation of Powers
• Congress Power
• Art. I, 8 The Congress shall have power to
• pay the debts and provide for the common defence
• declare war, grant letters of marque and
  reprisal, and make rules concerning captures on
  land and water

• Presidential Power
• Constitutional Text
• Inherent (Extra-Constitutional)

10
SoP Foreign Affairs

• Presidential Power
• Constitutional Text
• Art. II, 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
• He shall have power, by and with the advice and
  consent of the senate, to make treaties and he
  shall nominate, with the advice and consent of
  the senate, shall appoint ambassadors, other
  public ministers and consuls
• Art. II, 3 he shall receive ambassadors and
  other public ministers
• He shall take care that the laws be faithfully
  executed
• When congress authorizes, President acts within
  Zone 1

11
SoP Foreign Affairs

• Presidential Power
• Inherent (unstated) Power
• Head of State
• US v. Curtiss-Wright The President is the sole
  organ of the nation in its external relations,
  and its sole representative with foreign nations.

• Does either Art. II or the Presidents inherent
  power mean that different SoP rules apply when
  it comes to war or foreign affairs?
• Can Congress restrict the Presidents conduct of
  either?

12
SoP Foreign Affairs

• Defying Congress
• Ronald Reagan and the Boland Amendment
• Barred US intelligence agencies from spending
  funds to support military or paramilitary
  operations in Nicaragua.

• If the president had authorized Norths actions
• Which Jackson zone would have applied?
• Would the action have been constitutional?

13
SoP Foreign Affairs

• Bypassing Congress
• Executive Agreements, as Treaty alternative
• Treaty negotiated by President, ratified by
  Senate
• Exec Agreement signed by President foreign
  nation
• Differences
• No political cover
• No internal operational effect
• Except as necessarily incident to foreign effect
• Unless accompanied by implementing legislation

14
Dames Moore v. Regan (1981)

• Iran-US Claims Tribunal
• Established by Executive Agreement
• Terminates all cases (public private claims) v.
  Iran
• Authority
• Intl Claims Settlement Act ?
• Close, but not on-point
• Congressional acquiescence
• Zone 1a
• Inherent or Core Art. II power ?

15
Un/Declared Wars

• Formal Declarations

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Un/Declared Wars

• No Declaration of War
• 1950-53 Korea
• 1962 Cuba
• 1964-73 Vietnam
• 1965 Domican Republic
• 1970 Cambodia
• 1980 Iran
• 1981 El Salvadaor
• 1981 Libya
• 1982 Lebanon
• 1983 Grenada
• 1987 Persian Gulf
• 1988 Panama
• 1991 Iraq
• 1992 Somalia
• 1993 Bosnia

17
Un/Declared Wars

• Prize Cases
• President could defend the Union from
  insurrection w/o first obtaining congl approval
• Basic SoP
• Congress is law policy-maker
• President is law applier (chief executive)
• Same division works for war power
• Except where no need to deliberate policy
• Invasion, insurrection
• Imminent or covert threats to the national
  security

18
Un/Declared Wars

• Gulf of Tonkin Resolution
• Aug 4, 1964 Pres. Johnson reports to Congress
• N.Vietnamese patrol boats made an unprovoked
  attack on the destroyer USS Maddox in intl
  waters, claimed "unequivocal proof" of an
  "unprovoked" second attack against the Maddox
• Aug. 7, 1964 Congress passes H.J.Res 1145
• "to take all necessary steps, including the use
  of armed force, to assist any member or protocol
  state of the Southeast Asia Collective Defense
  Treaty requesting assistance"
• Vote in House 416-0 in Senate 88-2
• Squadron commander James Stockdale, flying
  overhead
• "I had the best seat in the house to watch that
  event, and our destroyers were just shooting at
  phantom targets -- there were no PT boats
  there.... There was nothing there but black water
  and American fire power."
• Johnson later said in private
• "for all I know, our Navy was shooting at whales
  out there."

19
War Powers Resolution

• 1541, 1547 Declaration of Policy
• Preserve SoP re. use of armed forces in hostile
  situation
• Presidential action only if
• Declaration of war or specific statutory
  authorization
• National emergency created by attack on US,
  territories, forces
• 1542 Consultation
• President shall consult w/ Cong. before sending
  forces
• 1543 Reporting
• President shall submit report to Speaker of the
  House President pro tempore of the Senate
  within 48 hours
• 1544 Congressional Action
• Termination within 60/90 calendar days, or
• Concurrent resolution requiring withdrawal of
  forces

Constitutional?
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You may, by force of arms, attack, subdue, and
take all Ships and other Vessels whatsoever
carrying Soldiers, Arms, Gunpowder, Ammunition,
Provisions or other contraband Goods, to any of
the British Armies or Ships of War employed
against these Colonies John Hancock, Pres. 2d
Continental Congress
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