Read with this part: the note on United States v. Curtiss-Wright Export Corp. on the Module 6 page.
The case
In 1934 Congress passed a Joint Resolution. It let the President ban the sale of arms to Bolivia and Paraguay, then at war with each other, if he found that a ban might help restore peace. He made the finding and proclaimed the ban. Curtiss-Wright sold machine guns to Bolivia anyway and was indicted. Its defense was nondelegation: Congress had handed the President the power to decide what was a crime, with no standard to guide him.
The Court rejected the defense and sustained the delegation. That is the whole holding. Congress may give the President more room to act in foreign affairs than it could give him at home.
Two measuring sticks
Justice Sutherland did not stop at the holding. He divided the Constitution in two:
“It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.” 299 U.S. at 315.
And then the sentence that matters most for this course:
“The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.” Id. at 315–316.
That is the second measuring stick. At home, you find the power in the text. Abroad, on Sutherland’s account, the powers of a nation come with being a nation. They passed from the Crown to the Union, not through the States, so the list in Article I does not limit them. Historians have disputed that history since the day it was written.
The passage everyone quotes
“In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. … As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’” Id. at 319.
Read what it is about: who speaks for the nation. Marshall was a Congressman defending an extradition. And the next sentence limits itself. The President’s power, it says, “of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.” Id. at 319–320.
What to carry out of Part 1
- The holding: Congress may delegate more broadly in foreign affairs than at home.
- The dictum: the “sole organ” passage. It was not needed to decide the case.
- Where Congress was: the President acted with Congress, under a Joint Resolution. This was Jackson’s category one. When a brief cites Curtiss-Wright for a President acting against Congress, it is relying on the dictum. Part 3 tells you what the Court now thinks the dictum is worth.
Check yourself
A President, with no statute behind him, bans all trade with a foreign country and cites Curtiss-Wright as his authority. What did Curtiss-Wright actually hold, and how much does it help him?
Answer
It held only that Congress could delegate the arms-embargo decision to the President, even though the Resolution gave him little guidance. The President in that case was acting under an Act of Congress. The President here has no Act of Congress, so the holding does not cover him. All he can use is the "sole organ" passage, which is dictum and is about who speaks for the nation. At best he is in Jackson's second category, and Zivotofsky (Part 3) limits even the dictum.