Foreign affairs and policy and the Supreme Court

Description: Domain of public policy making whereby the national government orders its relations with other countries.

Significance: Although foreign affairs and policy are mainly the concern of the president and, to a lesser degree, Congress, the Supreme Court arbitrates in disputes between the political branches. Its original jurisdiction includes cases involving foreign ambassadors, ministers, and consuls, and its appellate jurisdiction embraces disputes involving foreign governments, citizens, and subjects as well as admiralty and maritime law.

The Supreme Court typically defers to the political branches of the government in the area of foreign policy making. The president is constitutionally the lead actor in dealing with foreign governments. Article II of the U.S. Constitution invests the president with the power to make treaties, to conduct foreign relations, and, as commander in chief, to make war. Congress is not without authority in these areas, but its powers are more limited. The Senate advises and consents to the ratification of treaties, while the president negotiates and ratifies them and determines which agreements will be submitted for formal Senate consideration. Only Congress may declare war, but it does so only after a presidential request, and it is the president who, as commander in chief, conducts the war. The president nominates ambassadors subject to congressional approval. In each case the president acts and Congress reacts in matters involving foreign affairs.

The one area in which Congress has primary power is in the authorization of budgets for the conduct of foreign policy, but rarely does it use this power to contradict a president’s foreign policy. Although the Constitution nowhere says definitively that the president is the primary constitutional authority in foreign affairs, and indeed both the president and Congress are invested with certain powers relative to the making and conduct of foreign policy, the deck is stacked in the president’s favor. Still, the interpretation and relationship of the checks and balances that exist in this area have proved an invitation throughout U.S. history to struggle and contest between the executive and legislative branches, and the Supreme Court has ruled in several important cases in ways that have supported the assertion of presidential authority.

The Supreme Court’s Role

Presidential authority in foreign policy increased in the twentieth century, as the United States rose to a position of prominence in international affairs. The Court, although not a direct player in the foreign policy arena, provided, in a series of rulings, an interpretation of the Constitution that supported the growth of presidential authority in this arena. In Missouri v. Holland (1920), the Court upheld the supremacy of treaties as the law of the land, giving the president and Congress the power to override state legislation where foreign policy interests and international obligations were involved. In the United States v. Curtiss-Wright Export Corp. (1936), which was advanced on appeal by an individual who had violated an arms embargo established by the president with the authorization of Congress concerning the Chaco War in South America, the Court upheld the legislative authorization and the presidential action as valid. Justice George Sutherland, writing for the majority, argued that the president had authority for his action not only from Congress but also from the “very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations.” This case established a tone that the president, not Congress, conducts foreign relations, and that his or her powers are extensive.

Political Questions

The Court proved extremely reluctant to interfere with political disputes between Congress and the president over the conduct of foreign policy. In Goldwater v. Carter (1979), when Senator Barry Goldwater challenged President Jimmy Carter’s authority to terminate a treaty with Taiwan without the advice and consent of the Senate, the Court dismissed the case on the grounds that this was a nonjusticiable political question. Legal challenges by members of Congress to the authority of the president to conduct military actions overseas without congressional authorization were also rebuffed by the Court as nonjusticiable political questions. Here, too, the Court was reluctant to interfere. Court abstention from interference in cases where legislative and executive claims were at odds concerning foreign policy often worked to the advantage of the chief executive rather than the legislature.

However, although a president’s powers are considered to be broad in the foreign policy area, they are limited. The Court ruled in Youngstown Sheet and Tube Co. v. Sawyer (1952) that President Harry S Truman could not, under his powers as commander in chief during time of war, seize steel mills because he feared an impending strike by workers, especially in view of congressional opposition to such action. In this case, the Court displayed a reluctance to acknowledge as constitutional actions that, although related to foreign affairs, had no clear constitutional basis, had chiefly a domestic impact, and defied congressional wishes.

Bibliography

Bland, Randall W. The Black Robe and the Bald Eagle: The Supreme Court and Foreign Policy, 1789-1960. Bethesda, Md.: Austin & Winfield, 1998.

Corwin, Edward S. The President: Office and Powers. New York: New York University Press, 1984.

Goldwin, Robert A., and Robert A. Licht, eds. Foreign Policy and the Constitution. Washington, D.C.: American Enterprise Press, 1990.

Henkin, Louis. Foreign Affairs and the Constitution. Mineola, N.Y.: Foundation Press, 1996.

Westerfield, Donald L. War Powers: The President, the Congress, and the Question of War. Westport, Conn.: Praeger, 1996.