United States v. Curtiss-Wright Export Corp. (1936) – Guest Essayist: Daniel A. Cotter
The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.
Background of the Case
On May 28, 1934, the United States Congress approved a Joint Resolution, which provided that if the president decided, it would be “unlawful to sell” arms to countries engaged in the conflict in Chaco, a region in South America. Congress’ Joint Resolution delegated this power to President Franklin Delano Roosevelt only if:
the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if, after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect….
President Roosevelt issued a proclamation on the same date (48 Stat. 1744), stating:
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, do hereby declare and proclaim that I have found that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and that I have consulted with the governments of other American Republics and have been assured of the cooperation of such governments as I have deemed necessary as contemplated by the said joint resolution, and I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.
On November 4, 1935, President Roosevelt revoked this Proclamation , (49 Stat. 3480), noting that “the prohibition of the sale of arms and munitions of war in the United States…will no longer be necessary….” However, Roosevelt’s revocation did not have the “effect of releasing or extinguishing any” criminal activity incurred while the Proclamation was in effect.
Curtiss-Wright allegedly planned to sell fifteen machine guns to Bolivia, a country involved in the Chaco War, in violation of the Proclamation. Curtiss-Wright was indicted on January 27, 1936 on charges of conspiring to sell these weapons beginning on May 29, 1934, one day after President Roosevelt’s Proclamation was issued. Curtiss-Wright moved to dismiss the indictment on a number of grounds, including that the Joint Resolution “effects an invalid delegation of legislative power to the executive.” The District Court for the District of Columbia agreed and entered a judgment dismissing the indictment. The United States appealed directly to the Supreme Court under the Criminal Appeals Act.
The Supreme Court Decision
The Supreme Court granted certiorari to consider several issues, the most important being whether the Joint Resolution violated the non-delegation doctrine, which provides that Congress, being vested with “all legislative powers” by Article One of the Constitution, cannot delegate that power to the president or anyone else. Associate Justice George Sutherland wrote the 7-1 decision, holding that in conducting foreign affairs, the Executive is the supreme branch of government. Justice Sutherland distinguished between “our internal affairs” and “foreign or external affairs.” If the question were one addressing the former, then Congress could not delegate, and the president could not exercise, such powers. Sutherland wrote:
The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution [and certain implied powers] is true only in respect of our internal affairs.
However, with regard to foreign affairs, Sutherland stated that with the separation of the colonies from Great Britain, the power previously held by the Crown passed “to the colonies in their collective and corporate capacity as the United States of America.” Sutherland wrote: “Rulers come and go; governments end, and forms of government change; but sovereignty survives.”
The Court’s opinion next examined the scope of the president’s powers and held “the President alone has the power to speak or listen as a representative of the nation” and that such power was independent of any delegation of power by Congress. In reaching this conclusion, Sutherland quoted from John Marshall’s March 7, 1800 statement, made when he was a Representative in the United States House: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”
Sutherland examined a number of laws passed by Congress from 1794 forward to show that the delegation of legislative power to the President found in the Joint Resolution was the latest in a long line of legislation that “has prevailed almost from the inception of the national government to the present day.” Sutherland’s decision reversed and remanded the lower court’s ruling. Justice James Clark McReynolds dissented and Justice Harlan F. Stone did not take part in the case.
Sutherland’s decision granted extremely broad powers to the president to conduct foreign affairs, but the Court since the Curtiss-Wright decision has not fully adopted such a broad scope of executive powers. However, the executive branch has often asserted Curtiss-Wright as justification for presidential action in the absence of judicial decisions to the contrary (many of the disputes that arise between the two branches are political questions, which the Supreme Court will not hear).
United States v. Curtiss-Wright Export Corp. (1936) Supreme Court decision: https://supreme.justia.com/cases/federal/us/299/304/#annotation
Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.