The Law Treaty Negotiation: A Presidential Monopoly?

Abstract

United States v. Curtiss-Wright (1936) involved a dispute over legislation passed Congress two years earlier authorizing president to impose an arms embargo in a region in South America. The issue was whether Congress had delegated too much of its legislative power to president. In 1935, Supreme Court had struck down two delegations of power to president involving domestic policy. (1) The question presented in Curtiss-Wright was a narrow one: could Congress delegate greater discretion to president in foreign affairs? Writing for a 7-1 Court, Justice George Sutherland decided that it could. Justice James C. McReynolds dissented, stating his opinion that district court reached right conclusion striking down delegation as excessive. Justice Harlan Fiske Stone did not take part in consideration or decision of case. Judicial Misconceptions In upholding delegation of legislative authority, Justice Sutherland spoke about the differences between powers of federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. He said two classes of powers different, both in respect of their origins and their nature. (2) Congressional legislation, to be made effective in international field, must often accord to President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. (3) In this passage, Sutherland not only sustains delegation recognizes a field of independent presidential power that cannot be restricted Congress. The problems with his constitutional analysis and historical understanding are treated in an earlier article (Fisher 2007b). Many scholars have pointed out deficiencies of Justice Sutherland's sole organ doctrine, his recognition of inherent and extra-constitutional powers for president, and his account of flow of sovereignty and external affairs to United States (Brownell 2000; Goebel 1938; Levitan 1946; Lofgren 1973; Patterson 1944; Quarles 1944; Ramsey 2000; Simones 1996; Van Tyne 1907). This article examines errors of Justice Sutherland with regard to president's constitutional authority to negotiate treaties. Not only did Sutherland attempt to show that federal power over external affairs was distinctly different in origin and character from that over internal affairs, but participation in exercise of power is significantly limited. In field of external affairs, he said, Constitution required president to share with Senate treaty-making power, but he alone negotiates. Into field of negotiation Senate cannot intrude; and Congress itself is powerless to invade it. (4) In making this assertion, Sutherland ignored his own experiences and writings as a U.S. senator from Utah and demonstrated no grasp of how often presidents in past had shared treaty negotiation with members of Congress, both senators and representatives. Constitutional Theory The Constitution provides little guidance on how treaties are to be negotiated. Article II, section 2, empowers president, by and with Advice and Consent of Senate, to make Treaties, provided two-thirds of Senators present concur. Article I, section 10, prohibits states from entering into treaty, alliance, or confederation. That section also prohibits a state, without consent of Congress, from entering into any Agreement or Compact with a foreign power. The supremacy clause in Article VI defines treaties, along with Constitution and statutes, as the supreme Law of Land. Otherwise, Constitution is silent about many elements of treaty-making power. It says nothing about president's authority to negotiate treaties, process of terminating a treaty, or allocation of authority to interpret and reinterpret a treaty. …