With support from the University of Richmond

History News Network

History News Network puts current events into historical perspective. Subscribe to our newsletter for new perspectives on the ways history continues to resonate in the present. Explore our archive of thousands of original op-eds and curated stories from around the web. Join us to learn more about the past, now.

Louis Fisher: History Refutes the President's Claims to Unlimited Power Over Foreign Affairs

[Louis Fisher is a specialist in constitutional law with the Law Library of the Library of Congress. His books include Presidential War Power (2004). The views expressed here are personal, not institutional.]

Advocates of unchecked presidential power in the post-9/11 period rely heavily on the Supreme Court’s decision in United States v. Curtiss-Wright Export Corp. (1936). In dicta, Justice George Sutherland cited a statement in 1800 by then-Rep. John Marshall (the future Supreme Court chief justice) that the president “is the sole organ of the nation in its external relations.”

By this statement, Marshall meant merely that when the United States enters into a treaty with an extradition provision, it is the president’s duty under the Constitution to see that the treaty is faithfully carried out. He meant that, and nothing more.

Nevertheless, Marshall’s language recently has been manipulated to defend inherent, exclusive, and extra-constitutional powers for the president, placing that office outside the control of Congress and the courts. This distortion is unfortunate, particularly given the importance of the constitutional issues at stake, and a more accurate understanding of both Marshall and Curtiss-Wright would help avoid confusion about the true balance of power in the federal government.

The “sole organ” doctrine appears in three recent legal arguments: the first from the Bush administration, the second from Judge Richard Posner, and the third from law professor John Yoo. All three invoke Curtiss-Wright to vindicate inherent presidential power in foreign affairs and national security. ...

Here’s what Marshall really meant:

During House debate on March 7, 1800, Marshall called the president “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” It was never his intent to promote inherent, exclusive, or extra-constitutional power for the president. His objective was merely to defend the authority of President John Adams to carry out an extradition treaty.

The president was not the “sole organ” in formulating a treaty or foreign policy in general. He was the sole organ in implementing it. Article II of the Constitution calls upon the president to “take Care that the Laws be faithfully executed,” while Article VI makes all treaties “the supreme Law of the Land.” In carrying out the extradition provision (Article 27) of the Jay Treaty, Adams turned over to English authorities a British citizen charged with murder on a British ship. In the situation Marshall was addressing, the president was the “sole organ” in interpreting and enforcing an extradition provision in a treaty with Great Britain.

Marshall never implied that the president was the leading voice in shaping and articulating foreign policy. At no time during his service as a member of Congress, secretary of state, or chief justice did Marshall ever argue for inherent or independent power of the president to make foreign policy.

To the contrary, in Talbot v. Seeman (1801) he understood that Congress possessed the power to take the country to war: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry.” And in Little v. Barreme (1804) he stated that when a presidential proclamation in time of war conflicts with a statute enacted by Congress, the statute prevails....

Read entire article at Legal Times