A self-paced tutorial for the foreign-affairs half of Module 6. Four short parts and a self-check, about ten minutes each. Work through them in order: each part assumes the one before it. The war-power half of the Module — the AUMF, Hamdi, the military-commission cases, Newsom — is covered in class.
The question
The syllabus asks it in the Module’s first line: are foreign policy and domestic affairs different?
Modules 2 through 4 used one measuring stick. The national government has the powers the Constitution lists and the powers necessary and proper to carry them out, and nothing else. Find the power in the text, or the action fails. This tutorial asks whether the same stick measures what the United States does abroad, and who holds it when it does not.
The parts
- Different measuring sticks. Curtiss-Wright, what it held, and the famous passage it did not need.
- Treaties and executive agreements. Missouri v. Holland, Medellín v. Texas and Dames & Moore v. Regan: how far a treaty reaches, when it is law in an American court, and what the President can do without one.
- Recognition. Zivotofsky v. Kerry: the one case in which a President has defied an Act of Congress on foreign affairs and won, and what it did to Curtiss-Wright.
- Entry. Trump v. Hawaii: a delegation from Congress, the deference that comes with it, and the limits of review.
- Self-check. Nine questions, with the answers explained.
One tool for all of it
Keep Justice Jackson’s three categories from Youngstown open beside you. In every case in this tutorial, ask the same question first: where is Congress? Did it authorize the President (category one), say nothing (category two), or forbid what he did (category three)? Almost every result below turns on the answer, and two of the cases turn on how the Court read what Congress did not say.