The Law: Presidential Inherent Power:

The Sole Organ Doctrine

LOUIS FISHER
Library of Congress

The executive branch relies in part on the sole organ doctrine to define presidential power
broadly in foreign relations and national security, including assertions of an inherent executive
power that is not subject to legislative or judicial constraints. The doctrine draws from a
statement by John Marshall as a member of the House of Representatives in 1800: The
President is the sole organ of the nation in its external relations, and its sole representative with
foreign nations. In dicta, the Supreme Court, in United States v. Curtiss-Wright (1936),
cited Marshalls speech to support an independent, extra-constitutional, or exclusive power of the
president. When read in context, however, Marshall made no such claim.

In a series of confidential memos written after 9/11, later released to the public, the
Justice Department wrote: We conclude that the Constitution vests the President with
the plenary authority, as Commander in Chief and the sole organ of the Nation in its
foreign relations, to use military force abroadespecially in response to grave national
emergencies created by sudden, unforeseen attacks on the people and territory of the
United States (U.S. Justice Department 2001, 1). On January 19, 2006, the Justice
Department defended the authority of the National Security Agency (NSA) to intercept
international communications coming into and going out of the United States of persons
allegedly linked to al Qaeda or related terrorist organizations. The department pointed to
the Presidents well-recognized inherent constitutional authority as Commander in
Chief and sole organ for the Nation in foreign affairs (U.S. Justice Department 2006a,
1). In cases challenging NSA eavesdropping, the government argued in court that the
state secrets privilege embodies central aspects of the Nations responsibilities under
Article II of the Constitution as Commander-in-Chief and as the Nations organ for
foreign affairs (U.S. Justice Department 2006b, 4).

Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress. He has
published numerous works on the presidency, national security, war powers, and other constitutional issues.
AUTHORS NOTE: The views expressed here are my own. Many thanks to Charles Lofgren for constructive
comments on the draft.
Presidential Studies Quarterly 37, no. 1 (March)
2007 Center for the Study of the Presidency

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Referred to in this manner, the sole organ doctrine seems to support a plenary,
exclusive, and inherent authority of the president in foreign relations and national
security, an authority that overrides conflicting statutes and treaties. The theory appears
to carry special weight because its author is John Marshall, a member of the House in
1800 and later chief justice of the Supreme Court. The theory is developed in an
important foreign affairs case, United States v. Curtiss-Wright.1 However, when Marshalls
speech is read in context, he did not advocate an independent, inherent presidential
power over external affairs. That scope of power did exist in foreign constitutions and
precedents, such as in British law, but the Framers rejected the model of an executive
empowered to exercise exclusive control over external relations (Fisher 2004, 1-16).2

Marshalls Speech
On March 7, 1800, in the House of Representatives, John Marshall called the
president the sole organ of the nation in its external relations, and its sole representative
with foreign nations.3 The context of his speech demonstrates that his intent was not
to advocate inherent or exclusive executive power, much less the powers of a British
monarch. As shown below, Marshalls objective was to defend the authority of President
John Adams to carry out an extradition treaty. The president was not the sole organ in
formulating the treaty. He was the sole organ in implementing it. Article II of the
Constitution specifies that it is the presidents duty to take Care that the Laws be
faithfully executed, and in Article VI, all treaties made shall be the supreme Law of the
Land.
During the debate, opponents of President Adams insisted that he should be
impeached or censured for turning over to England someone charged with murder.
Because the case was already pending in an American court, some lawmakers urged that
action be taken against him for encroaching upon the judiciary and thus violating the
doctrine of separation of powers. Yet Adams had operated under the extradition article
(Article 27) of the Jay Treaty, which provided that the United States and Great Britain
would deliver up to each other all persons charged with murder or forgery.4 The debate
began with a member of the House requesting that President Adams provide documents
relative to, the apprehension and delivering of Jonathan Robbins, under the twentyseventh article of the treaty (10 Annals of Cong. 511). Although critics of Adams
claimed that Robbins was a citizen of the United States (ibid., Representative Edward
Livingston), Secretary of State Timothy Pickering regarded Robbins as an assumed name
for Thomas Nash, a native Irishman (ibid., 515). U.S. District Judge Thomas Bee, who
was asked to turn the prisoner over to the British, considered the individual to be Thomas
1. 299 U.S. 304, 319 (1936).
2. By the 1600s, the British Parliament had begun to exercise some foreign affairs power through the
withholding and conditioning of funds, investigations, and impeachment of cabinet officials (Sofaer 1976,
6-15).
3. 10 Annals of Cong. 613 (1800), cited in United States v. Curtiss-Wright Corp., 299 U.S. 304, 319
(1936).
4. Article 27 of the Treaty with Great Britain, November 19, 1794, 8 Stat. 129.

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Nash.5 A House resolution described President Adamss decision to turn the accused over
to the British as a dangerous interference of the Executive with Judicial decisions (ibid.,
533). Some members questioned whether the House had authority to censure or to
approbate the conduct of the Executive (ibid., 551, statement by Representative
William Craik). Others saw the debate heading in the direction of impeachment (ibid.,
statement by Representative Robert Harper).
Five months before the House debate, Marshall wrote an article for the Virginia
Federalist (Richmond) on September 7, 1799, setting forth his analysis of the dispute over
what he called the case of Robbins (Cullen 1984, 23). He explained that on matters of
extradition, nationals communicate with each other through the channel of their governments, and the natural, and obvious and the proper mode is an application on the
part of the government (requiring the fugitive) to the executive of the nation to which he
has fled, to secure and cause him to be delivered up (ibid., 25). The concept of sole organ,
then, included this capacity of the president to act as the channel for communicating with
other nations. In carrying out Article 27 of the Jay Treaty, Marshall said that President
Adams [u]pon the whole . . . appears to have done no more than his duty (ibid., 28). By
implementing this treaty provision, Adams had execute[d] one of the supreme laws of
the land, which he was bound to observe and have carried into effect (ibid.). Nothing in
this analysis suggested an inherent or extraconstitutional role for the president. Once the
president and the Senate had agreed on a treaty, it was the presidents duty to see that the
treaty was faithfully executed, as with any other law.
Having honed his major arguments, Marshall was fully prepared to respond to the
House resolutions of possible censure or impeachment. After listening to preceding
speakers, he took the floor to say that there were no grounds to rebuke the president. In
matters such as carrying out an extradition provision in a treaty, a case like that of
Thomas Nash is a case for Executive and not Judicial decision (10 Annals of Cong. 611).
Here is the sole-organ comment in full:
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be
made on him.
He possesses the whole Executive power. He holds and directs the force of the nation.
Of consequence, any act to be performed by the force of the nation is to be performed
through him.
He is charged to execute the laws. A treaty is declared to be a law. He must then
execute a treaty, where he, and he alone, possesses the means of executing it.
The treaty, which is a law, enjoins the performance of a particular object. The person
who is to perform this object is marked out by the Constitution, since the person is named
who conducts the foreign intercourse, and is to take care that the laws be faithfully executed.
The means by which it is to be performed, the force of the nation, are in the hands of this
person. Ought not this person to perform the object, although the particular mode of using
the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and

5. 10 Annals of Cong. 515; see United States v. Robins [sic], 27 Fed. Cas. 825, 832 (1799) (Case no.
16, 175). The proceedings before Judge Bee are also reprinted in Wharton (1849, 392-457).

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Congress may devolve on others the whole execution of the contract; but, till this be done,
it seems the duty of the executive department to execute the contract by any means it
possesses. (ibid., 613-14)

Marshall emphasized that President Adams had not attempted to make foreign
policy single-handedly. He was carrying out a policy made jointly by the president and
the Senate (for treaties). Only after the policy had been formulated through the collective
effort of the executive and legislative branches, either by treaty or by statute, did the
president emerge as the sole organ in implementing national policy. Although it was the
presidents constitutional duty to carry out the law, including treaties, Congress,
unquestionably, may prescribe the mode. For example, legislation in 1848 provided that
in all cases of treaties of extradition between the United States and another country,
federal and state judges were authorized to determine whether the evidence was sufficient
to sustain the charge against the individual to be extradited.6
Marshall also recognized that there were limits on the presidents authority to make
law where Congress had not provided it: And although the Executive cannot supply a
total Legislative omission, yet it is not admitted or believed that there is such a total
omission in this case (ibid., 614). What if Thomas Nash had been an American and
pressed into service on the British ship Hermione, where he committed murder? Could he
have been transferred to England and tried and executed there? Marshall denied it could
be so: Had Thomas Nash been an impressed American, the homicide on board the
Hermione would, most certainly, not have been a murder. The act of impressing an
American is an act of lawless violence. The confinement on board a vessel is a continuation of the violence, and an additional outrage (ibid., 617).
Edward S. Corwin, in his classic work The President, said that what Marshall had
foremost in mind in describing the president as the sole organ was simply the
Presidents role as instrument of communication with other governments (Corwin 1957,
178, emphasis in original). He concluded: There is no more securely established principle of
constitutional practice than the exclusive right of the President to be the nations intermediary in its
dealing with other nations (ibid., 184, emphasis in original). This emphasis on communication of national policy with other countries did not include a form of inherent power
incapable of being checked by other branches of government.
In his capacity as chief justice of the Supreme Court, Marshall held to his position
that the making of foreign policy is a joint exercise by the executive and legislative
branches (through treaties and statutes), not a unilateral or exclusive authority of the
president. Blackstones theory of external relations, the British royal prerogative, and the
concept of inherent executive power in foreign affairs do not appear in Marshalls
decisions. With the war power, for example, Marshall looked solely to Congressnot the
presidentfor the authority to take the country to war. Marshall had no difficulty in
identifying the branch that possessed the war power: The whole powers of war being, by
the constitution of the United States, vested in congress, the acts of that body can alone

6. 9 Stat. 320 (1848); In re Kaine, 55 U.S. 103, 111-14 (1852).

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be resorted to as our guides in this enquiry.7 In an 1804 case, Marshall ruled that, when
a presidential proclamation issued in time of war conflicts with a statute enacted by
Congress, the statute prevails.8
In Marbury v. Madison (1803), Chief Justice Marshall recognized a field of presidential actions that was political, exclusive in nature, and not subject to checks from the
judiciary. Those actions, however, did not create a privileged area for the president with
regard to foreign affairs, external affairs, or national security. Congress can impose on
executive officers a range of statutory duties that trump presidential preferences: Where
a specific duty is assigned by law, and individual rights depend upon the performance of
that duty, it seems equally clear that the individual who considers himself injured, has a
right to resort to the laws of his country for a remedy.9 Courts are available to interpret
statutory duties and the individual rights attached to them. Marshall said that, if the
head of an executive department commits any illegal act, under colour of his office, by
which an individual sustains an injury, it cannot be pretended that his office alone
exempts him from being sued in the ordinary mode of proceeding, and being compelled
to obey the judgment of the law.10 That principle applied to both domestic and external
affairs, as can be seen in the 1804 case of Little v. Barreme.

The Curtiss-Wright Case

Although the Courts decision in Curtiss-Wright is a standard citation for the
sole-organ doctrine and the existence of inherent executive power in the field of foreign
affairs, the case itself did not concern independent presidential power. The issue before
the judiciary was whether Congress had delegated legislative power too broadly when it
authorized the president to declare an arms embargo in South America. A joint resolution
by Congress allowed the president to prohibit the sale of arms in the Chaco region
whenever he found that it may contribute to the reestablishment of peace between
belligerents.11
In imposing the embargo, President Franklin D. Roosevelt relied solely on
statutorynot inherentauthority. His proclamation prohibiting the sale of arms and
munitions to countries engaged in armed conflict in the Chaco begins: 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.12 Nowhere in that proclamation is there any assertion of inherent, independent, extraconstitutional, or exclusive presidential power.
Litigation on the proclamation focused on legislative power because, during the
previous year, the court twice struck down the delegation by Congress of domestic power
7.
8.
9.
10.
11.
12.

Talbot v. Seeman, 5 U.S. 1, 28 (1801); see also Bas v. Tingy, 4 U.S. 37 (1800).
Little v. Barreme, 2 Cr. (6 U.S.) 170, 179 (1804).
Marbury v. Madison, 5 U.S. (1 Cr.) 137, 165-66 (1803).
Ibid., 170.
48 Stat. 811, ch. 365 (1934).
Ibid., 1745.

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to the president.13 The issue in Curtiss-Wright was whether Congress could delegate
legislative power more broadly in international affairs than it could in domestic affairs.
A district court, holding that the joint resolution impermissibly delegated legislative
authority, said nothing about any reservoir of inherent presidential power.14 It acknowledged the traditional practice of Congress in reposing the widest discretion in the
Executive Department of the government in the conduct of the delicate and nicely posed
issues of international relations.15 Recognizing that need, however, did not save the
delegation.
The district court decision was taken directly to the Supreme Court, where none of
the briefs on either side discussed the availability of independent, inherent, or extraconstitutional powers for the president. As to the issue of jurisdiction, the Justice
Department advised that the question for the Court went to the very power of Congress
to delegate to the Executive authority to investigate and make findings in order to
implement a legislative purpose (U.S. Justice Department 1936, 7). The joint resolution
passed by Congress, said the government, contained adequate standards to guide the
president and did not fall prey to the unfettered discretion found by the Court in the
two 1935 decisions (ibid., 16).
The brief for the private company, Curtiss-Wright, also focused on the issue of
delegated legislative power and did not explore the existence of independent or inherent
presidential power (Brief for Appellees 1936, 3). A separate brief, prepared for other
private parties, concentrated on the delegation of legislative power and did not attempt
to locate any freestanding executive authority (Brief for Appellees Allard 1936). Given
Roosevelts stated dependence on statutory authority and the lack of anything in the
briefs about inherent presidential power, there was no need for the Supreme Court to
explore the existence of independent sources of executive authority.
Nevertheless, in extensive dicta, the decision by Justice George Sutherland went far
beyond the specific issue before the Court and discussed extraconstitutional powers of the
president. Many of the themes in this decision were drawn from his writings as a U.S.
senator from Utah. According to his biographer, Sutherland had long been the advocate
of a vigorous diplomacy which strongly, even belligerently, called always for an assertion
of American rights. It was therefore to be expected that [Woodrow] Wilsons cautious,
sometimes pacifistic, approach excited in him only contempt and disgust (Paschal 1951,
93).

Sutherlands Preparation
Justice Sutherland had been a two-term senator from Utah, serving from March 4,
1905 to March 3, 1917, and a member of the Senate Foreign Relations Committee. His
opinion in Curtiss-Wright closely tracks his article, The Internal and External Powers of
13. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Corp. v. United States, 295 U.S. 495
(1935).
14. United States v. Curtiss-Wright Export Corp., 14 F. Supp. 230 (S.D.N.Y. 1936).
15. Ibid., 240.

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145

the National Government, printed as a Senate document in 1910 (S. Doc. No. 417, 61st
Cong., 2d sess.). The article began with this fundamental principle: That this Government is one of limited powers, and that absolute power resides nowhere except in the
people, no one whose judgment is of any value has ever seriously denied (ibid., 1,
emphasis in original).
Yet subsequent analysis in the article moved in the direction of independent
presidential power that could not be checked or limited by the other branches, even by
the peoples representatives in Congress. He first faulted other studies for failing to
distinguish between our internal and our external relations (ibid., emphasis in original).
As to the first category, he said the states possessed every power not delegated to the
General Government, or prohibited by the Constitution of the United States or the state
constitution (ibid., 3). With regard to external relations, however, Sutherland argued
that, after the Declaration of Independence, the American colonies lost their character as
free and independent political bodies and national sovereignty passed then to the central
government. He offered this argument: The Declaration of Independence asserted it
when that great instrument declared that the United Colonies as free and independent
States (that is, as United States, not as separate States) have full power to levy war,
conclude peace, contract alliances, establish commerce, and to do all other acts and things
which independent States may of right do. And so national sovereignty inhered in the United
States from the beginning. Neither the Colonies nor the States which succeeded them
ever separately exercised authority over foreign affairs (ibid.). As will be noted, this
theory has been repudiated by scholars.
In his article, Sutherland connected external matters with the national government:
Over external matters, however, no residuary powers do or can exist in the several States,
and from the necessity of the case all necessary authority must be found in the National
Government (ibid., 12, emphasis in original). In Curtiss-Wright, he would associate
national sovereignty and external affairs with the president, greatly expanding executive
power. In addition to identifying express and implied constitutional powers in the article,
Sutherland spoke of inherent and extra-constitutional powers (ibid., 8-9).
The same themes appear in Sutherlands book, Constitutional Power and World Affairs
(1919). He again distinguishes between external and internal affairs (Sutherland 1919,
26). When Great Britain entered into a peace treaty with America following the war for
independence, it is impossible to escape the conclusion that all powers of external
sovereignty finally passed from the Kingdom of Great Britain to the people of the
thirteen colonies as one political unit, and not to the people separately as thirteen
political units (ibid., 38). In carrying out military operations, the president must be
given a free, as well as a strong hand. The contingencies of war are limitlessbeyond the
wit of man to foresee. . . . To rely on the slow and deliberate processes of legislation, after
the situation and dangers and problems have arisen, may be to court dangerperhaps
overwhelming disaster (ibid., 111). As explained later in this article, scholars have
overwhelmingly rejected his analysis of the Declaration of Independence, national sovereignty, and the sources and scope of presidential authority.
As to popular sovereignty, Sutherland was as inconsistent in his book as he was in
his article. Early passages in the book state that sovereigntythe plenary power to

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determine all questions of government without accountability to any oneis in the

people and nowhere else (ibid., 2). The American Revolution proceeded upon the
principle that sovereignty belongs to the people, and it is by their consent, either express
or implied, that the governing agency acts in any particular way, or acts at all. This is the
animating principle of the Declaration of Independence. It is the very soul of the
Constitution (ibid., 10). In an apparent rejection of inherent or extraconstitutional
powers, Sutherland wrote about the Constitution: One of its great virtues is that it fixes
the rules by which we are to govern (ibid., 13, emphasis in original). He warned against
the danger of centralizing irrevocable and absolute power in the hands of a single ruler
(ibid., 25). On all matters of external sovereignty and the general government, the
result does not flow from a claim of inherent power (ibid., 47).
Further into the book, however, Sutherland begins to flesh out the concepts of
inherent and extraconstitutional power as applied to external affairs and presidential
authority. He described the Louisiana Purchase as an exercise of the inherent right of the
United States as a Nation (ibid., 52, emphasis in original). What he attributed here to
national power (exercised by both elected branches) he later attributed solely to independent presidential power. He acknowledged that the Framers broke with Blackstone
by placing many powers of external affairs with Congress in Article I (ibid., 71). Yet once
war is declared or waged, he saw in the president as commander in chief a power that is
supreme: Whatever any Commander-in-Chief may do under the laws and practices of
war as recognized and followed by civilized nations, may be done by the President as
Commander-in-Chief. In carrying on hostilities he possesses sole authority, and is charged
with sole responsibility, and Congress is excluded from any direct interference (ibid.,
75).
In time of war, Sutherland argued that traditional rights and liberties had to be
relinquished: Individual privilege and individual right, however dear or sacred, or
however potent in normal times, must be surrendered by the citizen to strengthen the
hand of the government lifted in the supreme gesture of war. Everything that he has, or
is, or hopes to beproperty, liberty, lifemay be required (ibid., 98). Freedom of
speech may be curtailed or denied, along with freedom of the press (ibid.). Congress
has no power to directly interfere with, or curtail the war powers of the Commanderin-Chief (ibid., 109). Statutes enacted during World War I invested President Wilson
with virtual dictatorship over an exceedingly wide range of subjects and activities
(ibid., 115). Sutherland spoke of the need to define the powers of external sovereignty as
unimpaired and unquestioned (ibid., 171).

The Decision
Writing for the Court, Justice Sutherland reversed the district court and upheld the
delegation of legislative power to the president to place an embargo on arms or munitions
to the Chaco. Whether the joint resolution had related solely to internal affairs would
be open to the challenge of unlawful delegation he found unnecessary to determine.
The whole aim of the resolution is to affect a situation entirely external to the United

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States, and falling within the category of foreign affairs.16 Sutherland argued that the
two categories of external and internal affairs are different both in respect of their origin
and their nature.17 The principle that the federal government is limited to either
enumerated or implied powers is categorically true only in respect of our internal
affairs.18 The purpose, he said, was to carve from the general mass of legislative powers
then possessed by the states such portions as it was thought desirable to vest in the federal
government, leaving those not included in the enumeration still in the states.19 But that
doctrine, Sutherland insisted, applies only to powers which the states had . . . since the
states severally never possessed international powers.20 Although the states may not
have possessed international powers, they did, as will be explained, possess and exercise
sovereign powers.
To reach his conclusion, Sutherland said that, after the Declaration of Independence, the powers of external sovereignty passed from the Crown not to the colonies
severally, but to the colonies in their collective and corporate capacity as the United States
of America.21 Even before the Declaration, he said, the colonies were a unit in foreign
affairs, acting through a common agencynamely the Continental Congress, composed
of delegates from the thirteen colonies. That agency exercised the powers of war and
peace, raised an army, created a navy, and finally adopted the Declaration of Independence.22 By transferring external or foreign affairs directly to the national government,
and then associating foreign affairs with the executive, Sutherland put himself in a
position to argue for a broad definition of inherent presidential power.
There are two problems with his analysis. First, external sovereignty did not
circumvent the colonies and the independent states and pass directly to the national
government. When Great Britain entered into a peace treaty with America, the provisional articles of November 30, 1782 were not entered into with a national government.
Instead, His Brittanic Majesty acknowledges the said United States, viz. NewHampshire, Massachusetts-Bay, Rhode-Island and Providence Plantations, Connecticut,
New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina,
South-Carolina, and Georgia, and referred to them as free, sovereign and independent
States.23 The colonies formed a Continental Congress in 1774 and it provided for a form
of national government until passage of the Articles of Confederation (ratified in 1781)
and the U.S. Constitution. Until that time, the states operated as sovereign entities in
making treaties and exercising other powers that would eventually pass to the new
national government in 1789.
Second, sovereignty and external affairs did not pass from Great Britain to the U.S.
president. In 1776, as the time of Americas break with England, there was no president
16.
17.
18.
19.
20.
21.
22.
23.

United States v. Curtiss-Wright Corp., 299 U.S. 304, 315 (1936).

Ibid.
Ibid., 316.
Ibid. (emphasis in original).
Ibid.
Ibid.
Ibid.
8 Stat. 55 (1782).

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and no separate executive branch. Only one branch of government, the Continental
Congress, functioned at the national level. It carried out all governmental powers,
including legislative, executive, and judicial (Fisher 1972, 1-27, 253-70). When the new
national government under the U.S. Constitution was established in 1789, sovereign
powers at the national level were not placed solely in the president. They were divided
between Congress and the president, with ultimate sovereignty vested in the people.
Much of Curtiss-Wright is devoted to Sutherlands discussion about independent and
inherent presidential powers, but this part of the decision is entirely dicta and wholly
extraneous to the question before the Court: the delegation of legislative power. Having
distinguished between external and internal affairs, Sutherland wrote: In this vast
external realm, with its important, complicated, delicate and manifold problems, 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. Into the field
of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.24
In his book, Sutherland took a less rigid view. He recognized that senators did in fact
participate in the negotiation phase and presidents often acceded to this practical
construction (Sutherland 1919, 122-24). It was at this point in his decision that
Sutherland quoted John Marshalls sole-organ remark out of context, implying a scope of
presidential power that Marshall never embraced. Sutherland proceeded to develop for
the president a source of power in foreign affairs that was not grounded in authority
delegated by Congress:
It is important to bear in mind that we are here dealing not alone with an authority vested
in the President by an assertion of legislative power, but with such an authority plus the
very delicate, plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relationsa power which does not require as a basis
for its exercise an act of Congress, but which, of course, like every other governmental
power, must be exercised in subordination to the applicable provisions of the Constitution.
It is quite apparent that if, in the maintenance of our international relations,
embarrassmentperhaps serious embarrassmentis to be avoided and success for our aims
achieved, congressional legislation which is to be made effective through negotiation and
inquiry within the international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved.25

In freeing the president from statutory grants of power and legislative restrictions,
Sutherland did not explain how the exercise of presidential power would be constrained
by requiring that it be exercised in subordination to the applicable provisions of the
Constitution. Which provisions in the Constitution could check or override presidential
initiatives? On that point he was silent. Justice James McReynoldss dissent was brief:
He is of opinion that the court below reached the right conclusion and its judgment
ought to be affirmed.26
24. 299 U.S. 319 (emphasis in original).
25. Ibid., 319-20.
26. Ibid., 333.

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149

Justice Harlan Fiske Stone did not participate. He later wrote to Edwin M.
Borchard, a prominent law professor: I have always regarded it as something of a
misfortune that I was foreclosed from expressing my views in . . . Curtiss-Wright
. . . because I was ill and away from the Court when it was decided (Stone 1942). In
another letter to Borchard, Stone said he should be glad to be disassociated with
Sutherlands opinion (Stone 1937). Borchard later advised Stone that the Court, in such
cases as Curtiss-Wright, has attributed to the Executive far more power than he had ever
undertaken to claim (Borchard 1942).

Scholarly Evaluations
Most of the scholarly studies of Curtiss-Wright in professional journals and books
have been highly critical of Sutherlands decision. An article by Julius Goebel in 1938
attacked the principal tenets of the opinion, concluding that Sutherlands view of
sovereignty passing from the British crown to the union appears to be a perversion of the
dictum of Jay, C. J. in Chisholms Executors v. Georgia, 3 Dall. 419, 470 (U.S. 1799) to the
effect that sovereignty passed from the crown to the people (Goebel 1938, 572, Note 46).
As to Sutherlands comment that the president alone negotiates treaties and that into
this field the Senate cannot intrude, Goebel regarded such views as a somewhat
misleading description of presidential authority in foreign affairs, citing earlier examples
of presidents consulting the Senate before negotiation (ibid., 47). To Goebel, Sutherland
chose to frame an opinion in language closely parallel to the description of royal
prerogative in foreign affairs in the Ship Money Case of 1637 (ibid., 572-73). This British
case is considered a landmark decision in defending the exercise of the royal prerogative
to raise revenues against perceived dangers, notwithstanding statutory limitations.27
Writing in 1944, C. Perry Patterson regarded Sutherlands position on the existence
of inherent presidential powers to be (1) contrary to American history, (2) violative of our
political theory, (3) unconstitutional, and (4) unnecessary, undemocratic, and dangerous
(Patterson 1944, 297). The doctrine of Curtiss-Wright that Congress acquired power over
the entire field of foreign affairs as a result of the issue of the Declaration is contrary to the
facts of American history (ibid., 308). Also writing in 1944, James Quarles objected to
Sutherlands reasoning that foreign affairs, as distinguished from domestic affairs, invests
the federal government with powers which do not stem from the Constitution, are not
granted, but are inherent (Quarles 1944, 376-77). He noted that the question of inherent
presidential power was not raised by counsel for either side, either in the District Court
or in the Supreme Court; nor is there any allusion to any issue of that sort in the opinion
of the District Judge. Indeed, the pages of Mr. Justice Sutherlands opinion devoted to a
discussion of that question appear to the present writer as being little, if any, more than
so much interesting yet discursive obiter (ibid., 378).
David M. Levitan, in 1946, not only found fault with Sutherlands distinction
between internal and external affairs and the belief that sovereignty flowed from the
27. 3 St. Tr. 825, 1125-1243 (1816) (State Trials, 21 vol. series, edited by T. B. Howell. London: T.
C. Hansard).

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British crown directly to the national government, but expressed alarm about the
implications for democratic government. Sutherlands theory marked the furthest departure from the theory that [the] United States is a constitutionally limited democracy. It
introduces the notion that national government possesses a secret reservoir of unaccountable power (Levitan 1946, 493). Levitans review of the political and constitutional ideas
at the time of the American Revolution and the Constitutional Convention left little
room for the acceptance of Mr. Justice Sutherlands inherent powers, or, in fact, extraconstitutional powers theory (ibid., 496). The Sutherland doctrine makes shambles out
of the very idea of a constitutionally limited government. It destroys even the symbol
(ibid., 497).
Charles Lofgren and other scholars have pointed out that sovereignty in 1776 lay
with the people and the states, which operated as independent bodies and not as part of
a collective union, as Justice Sutherland claimed. The creation of a Continental Congress
did not disturb the sovereign power of the states to make treaties, borrow money, solicit
arms, lay embargoes, collect tariff duties, and conduct separate military campaigns
(Lofgren 1973; Levitan 1946; Van Tyne 1907). The Supreme Court has recognized that
the American colonies, upon their separation from England, exercised the powers of a
sovereign and independent government.28 To Lofgren, the historical evidence did not
support Sutherlands reliance on inherent or extraconstitutional sources: Federal power
in foreign affairs rests on explicit and implicit constitutional grants and derives from the
ordinary constitutive authority (Lofgren 1973, 29-30). Further: John Marshall in 1800
evidently did not believe that because the President was the sole organ of communication and negotiation with other nations, he became the sole foreign policy-maker (ibid.,
30).
Even if sovereignty had somehow passed intact from the British crown to the
national government, the U.S. Constitution allocates that power both to Congress and
the president. The president and the Senate share the treaty power and the House of
Representatives has discretion in deciding whether to appropriate funds to enforce
treaties. The president receives ambassadors from other countries but the Senate must
approve U.S. ambassadors as part of the confirmation process. Congress has the power to
declare war, issue letters of marque and reprisal, raise and support military forces, make
rules for their regulation, provide for the calling up of the militia to suppress insurrections and repel invasions, and provide for the organization and disciplining of the militia.
The Constitution explicitly grants to Congress the power to lay and collect duties on
foreign trade, regulate commerce with other nations, and establish a uniform rule of
naturalization.

Conclusions
Other scholars have taken exception to the line of reasoning found in the dicta
prepared by Justice Sutherland in Curtiss-Wright (Glennon 1988, 13; Ramsey 2000, 382;
28. United States v. California, 332 U.S. 19, 31 (1947); Texas v. White, 74 U.S. 700, 725 (1869);
MIlvaine v. Coxes Lessee, 8 U.S. (4 Cr.) 209, 212 (1808); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 222-24 (1796).

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Brownell 2000, 40-41). Anthony Simones, after reviewing the academic literature and
judicial decisions flowing from Sutherlands opinion, concluded that for every scholar
who hates Curtiss-Wright, there seems to exist a judge who loves it (Simones 1996, 415).
Robert Jackson, as attorney general, relied on Curtiss-Wright to defend the destroyers
bases agreement entered into by President Franklin D. Roosevelt in 1940. At the same
time, he drew some boundaries to cabin executive power: The Presidents power over
foreign relations while delicate, plenary, and exclusive is not unlimited. Some negotiations involve commitments as to the future which would carry an obligation to exercise
powers vested in the Congress.29 In a number of cases, the Supreme Court has cited
Curtiss-Wright to limit the role of the judiciarybut not of Congressin the field of
foreign affairs.30
In the Steel Seizure Case of 1952, Justice Jackson observed that the most that can
be drawn from Curtiss-Wright is the intimation that the president might act in external
affairs without congressional authority, but not that he might act contrary to an act of
Congress.31 He noted that much of the [Justice Sutherland] opinion is dictum.32 In
1981, a federal appellate court cautioned against placing undue reliance on certain
dicta in Justice Sutherlands opinion: To the extent that denominating the President as
the sole organ of the United States in international affairs constitutes a blanket endorsement of plenary Presidential power over any matter extending beyond the borders of this
country, we reject that characterization.33 Curtiss-Wright remains a frequent citation used
by the judiciary to support not only broad delegations of legislative power to the
executive branch, but also the existence of independent, implied, inherent, and extraconstitutional powers for the president. Although some justices of the Supreme Court
have described the presidents foreign relations power as exclusive, the Court itself has
not denied to Congress its constitutional authority to enter the field and reverse or modify
presidential decisions in the area of national security and foreign affairs.

References
Borchard, Edwin M. 1942. Letter from Borchard to Harlan Fiske Stone, February 9. Papers of Harlan
Fiske Stone, Manuscript Room, Library of Congress.
Brief for Appellees. 1936. Filed by Curtiss-Wright Export Corp. and Curtiss Aeroplane & Motor Co.,
Inc., in United States v. Curtiss-Wright Corp., no. 98, Supreme Court, October Term. Reprinted in
Landmark briefs and arguments of the Supreme Court of the United States: Constitutional law, edited by
Philip Kurland and Gerhard Casper. 1975. 32: 937. Arlington, VA: University Publications of
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Brief for Appellees Allard. 1936. Filed by John S. Allard, Clarence W. Webster, and Samuel J. Abelow,
in United States v. Curtiss-Wright Export Corp., no. 98, Supreme Court, October Term. Reprinted in
29. Opinions of Attorneys General, 39: 487. Washington, DC: Government Printing Office.
30. C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1948); Hirota v. MacArthur, 338 U.S. 197,
208 (1948) (Douglas, J., concurring); Carlson v. Landon, 342 U.S. 524, 534 (1952).
31. Youngstown Co. v. Sawyer, 343 U.S. 579, 636 n.2 (1952) ( Jackson, J., concurring).
32. Ibid.
33. American Intern. Group v. Islamic Republic of Iran, 657 F.2d 430, 438 n.6 (D.C. Cir. 1981).

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