Foreign Affairs and Executive Agreements

Introduction to Executive Foreign Affairs Powers

The next case in the readings brings up the issue of inherent presidential authority in the context of international relations. United States v. Curtiss-Wright Export Corp. (1936).

Questions re United States v. Curtiss-Wright Export Corp. (1936)

Although Curtiss-Wright came before Youngstown, it is nowhere mentioned in the case. You might ask if the majority opinion in Youngstown brings into question the authority of Curtiss-Wright? Did the majority in Youngstown hold that there were no inherent presidential powers or just none domestically?

• Does Curtiss-Wright fall into a different zone under Justice Jackson’s framework?

• It is important to note that at the time of this decision, the Court was striking down laws by congress that delegated legislative authority to the executive with regards to domestic affairs (See, Schecter Poultry Corp. v. U.S. (1935) under the Non-Delegation Doctrine). How does Justice Sutherland in his majority opinion distinguish the limits on executive power when it comes to domestic versus foreign affairs?

• Does the text, history and democratic theory support his view?

• Is it problematic for a president to have inherent powers in foreign affairs?

Treaty Powers: Executive Agreements

As noted in the Introduction to the Treaty Power under Federal Legislative Powers, the Constitution only enumerates one mechanism for entering into and ratifying treaties. As Article II Section 2 states: “He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”

Very few treaties in fact go through that process. Most treaties are either created by the executive alone in the form of executive agreements, or Congress pre-clears the president to enter into treaties under Congress’s foreign Commerce Clause powers (e.g. the North American Free Trade Agreement and more recently the Trans-Pacific Partnership Trade agreement).

Executive agreements were relatively rare during the first 100 years of the Republic, but after WWII they began to grow exponentially. According to a 2015 Congressional Research report on International Law and Agreements: Their Effect upon U.S. Law, more than 18,500 executive agreements have been entered into since 1789, and more than 17,300 of them from 1939 on. Compare this to the roughly 1,100 treaties that have gone through the ratification process. Available at: https://fas.org/sgp/crs/misc/RL32528.pdf. The numbers really began to take off after WWII. It is worth noting that the Court has never invalidated and executive agreement.

The first alternative method finds its genesis in the need for the executive to enter into a multitude of administrative agreements that could not possibly all go through the Senate. Think simply of all the status of forces agreements the U.S. has with countries around the globe. Think of all the agreements needed to set up military bases and to get approval to fly military missions over a given country’s air space. More modern constitutions such as South Africa’s, include provisions for executive agreements.

The president’s power to enter into such agreements is addressed in Dames & Moore v. Regan (1981). As the case recounts, this is not the first cases addressing executive agreements. The Court upheld executive agreements both United States v. Belmont (1937) and United States v. Pink (1942).

Questions re Dames & Moore v. Regan (1981)

• Was the practice of executive agreements by the executive enough to justify what appears to be a blatant disregard for the text of the Constitution?

• Is the practice only Constitutional if congress authorizes it?

• Would acquiescence be enough?

• Would silence?

• What if the agreement clearly conflicted with a federal statute? Would, or should the Court give an executive agreement the same status as a ratified treaty or federal statute, such that the later in time would prevail?

• What if an executive agreement conflicts with state law? Which should trump?

The Supreme Court addressed this issue in American Insurance Association v. Garamendi (2003). California created the Holocaust Victim Insurance Relief Act of 1999, which required that any insurance company that wished to be licensed in California would need to disclose pre-World War II insurance policy sale records. The point of the legislation was to attempt to help those who survived the Holocaust and their descendants locate financial assets that were confiscated by the Nazis and/or which could not otherwise be identified after the Holocaust. The Court found that the law was preempted because is conflicted with executive agreements and interfered with the executive’s foreign affairs powers.

Note that the Supreme Court has never struck down an executive agreement.

Rescinding Treaties

Article II provides a mechanism for entering into and ratifying treaties that involves both the executive and the legislative branches, but the constitutional text is silent on the question of rescinding treaties. For several years after the Communist party took over China in 1949, the U.S. still recognized the prior regime which had fled to Taiwan. President Carter unilaterally rescinded a treaty with Taiwan when finally recognizing mainland China (The People’s Republic) in 1978. Senator Goldwater and few other Senators sued arguing that the President could not act alone in rescinding a treaty, but needed approval by the Senate. The Court dismissed the case without a majority opinion. Justice Rehnquist considered the case to be a political question, while Justice Powell argued that the case was not ripe, since the Senate had not acted to oppose the actions of the president. In other words, there was no real case or controversy yet and there was a chance that no controversy would ever arise, if in fact the Senate chose not to oppose the actions of the President. A few Senators could not be said to represent a ripe case or controversy between the Senate and the President. Justice Brennan argued that Justice Rehnquist was confused. For justice Brennan, the question as to who the constitution gave this power to was not a political question at all. As he stated:

In stating that this case presents a nonjusticiable “political question,” Mr. Justice Rehnquist, in my view, profoundly misapprehends the political-question principle as it applies to matters of foreign relations. Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been “constitutional[ly] commit[ted].” Baker v. Carr, 369 U.S. 186, 211-213, 217, 82 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.

The constitutional question raised here is prudently answered in narrow terms. Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China. Our cases firmly establish that the Constitution commits to the President alone the power to recognize, and withdraw recognition from, foreign regimes.

Notice how the reasoning in Brennan’s dissent in this case appears to be adopted by the majority in Zivotofsky v. Clinton (2012) in the Political Question section. Are justice Rehnquist’s views here more consistent with Justice Breyer’s dissent in Zivotofsky?