1. Foreign Affairs and War Powers

2. Plenary v. Concurrent Powers Plenary Powers: powers granted to a body in absolute terms, with no review of, or limitations upon, the exercise of those powers. Concurrent Powers: powers shared among two or more bodies, allowing checks or limits on the exercise of those powers

3. Diplomacy Plenary Powers/ Concurrent Powers PresidentCongress Negotiate treatiesRatify treaties (Senate) Appoint EnvoysConfirm Envoys (Senate) Receive EnvoysRegulate Int’l Commerce Lay and collect duties Define/punish felonies on high seas, offenses against law of nations

4. War Powers (all plenary) PresidentCongress Commander in chief (army, navy, militia when called into federal service) Make Rules for government of army and navy Repel sudden attacks and insurrections Raise & support Armies (no appropriation of more than 2 years) “To provide and maintain a Navy”

5. An Early Dispute, Pacificus vs. Helvidius In 1793, George Washington issued a Proclamation of Neutrality in the war between France and Great Britain. Alexander Hamilton (Pacificus), then Sec’y of Treasury, wrote that while Congress has the sole right to declare war, it is "the duty of the executive to preserve peace till war is declared.“ James Madison (Helvidius), then a member of Congress, criticized Washington for doing so without authorization by Congress

6. Little v. Barreme (1804) Congress authorized the President to order the navy to stop and search any American ship they believed was bound for a French port; if they found evidence the ship was bound for France, they could seize it and keep half of the cargo for themselves. When the Secretary of the Navy issued the orders to his ship captains, he expanded the authorization to include ships sailing from a French port and ships that appeared foreign but were either actually American or carrying American cargo.

7. Little v. Barreme (1804) The Navy seized a Danish ship sailing from France without American cargo. Capt. Little wished to keep his portion of the proceeds from his seizure, while Barreme, the ship’s owner wanted his cargo back, plus damages. C. J. Marshall, and an unanimous court, found the seizure illegitimate because Congress had not explicitly authorized seizures of non-American vessels bound from France. Where Congress was silent, the President’s authority ended.

8. Arguments For Presidential Dominance 1) Unity and speed - single actor with clear responsibility and authority - no need to develop consensus, thus able to act quickly 2) Control of bureaucracy - Executive departments (including military) are global and possess the information, expertise, and ability to implement policy 3) Big Picture - Presidents, esp. 2nd term, have fewer parochial concerns, serve whole nation

9. Arguments For Congressional Dominance 1) Deliberation - quick decisions may be wrong and consensus is necessary for unified national effort 2) Distance from Bureaucracy – Congress less like to be captive to groupthink found in State Dept, intelligence agencies, or military 3) Representation – Congress closer to people, more accountable, less likely to discount objections

10. Curtiss-Wright Condor Bomber

11. Justice George Sutherland

12. Where did the United States’ sovereign powers come from? The People? The Constitution? The Congress? The British Crown?

13. U.S. v. Curtiss-Wright Export Corp. “During the Colonial period, those [international] powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, 'the Representatives of the United States of America' declared the United (not the several) Colonies to be free and independent states, and as such to have 'full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do.’”

15. Dames & Moore v. Regan In 1975, President Ford signed agreement for U.S. built plutonium reprocessing plant in Iran. The deal was the work of, among others, White House Chief of Staff Dick Cheney and Secretary of Defense Donald Rumsfeld.

16. Dames & Moore v. Regan Dames & Moore is owed money by Iran at time of hostage crisis, claims process results in small % recovery D&M argue that executive action cannot set aside a federal court order, as had successfully sued in US District Ct in CA

17. The War Powers Resolution President deploys troops to hostile area President has 48 hours to notify Congress Congress must pass resolution authorizing deployment within 60 days If Congress does not authorize deployment, troops must be withdrawn within 30 days

18. 3 Types of Diplomatic Agreements 1) Treaties 2) Executive Agreements 3) Congressional-Executive Agreements

19. Treaties v. Executive Agreements Between 1789 and 1839, U.S. was party to 60 treaties and 27 executive agreements Between 1939 and 2009, U.S. was party to ~1,100 treaties and > 16,500 executive agreements

20. U.S. v. Belmont (1937) FDR enters into Litvinov Assignment with Soviet Union, recognizes USSR as legitimate government over former Russia in 1933 Belmont was banker who held assets of Russian firm nationalized by Soviet government, refused to repatriate funds Belmont claimed that executive agreement not sufficient legal authority to override NY banking laws

21. U.S. v. Belmont (1937) “The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted.” (G. Sutherland)

22. Treaty-Making Process 1. Secretary of State authorizes negotiation and U.S. representatives negotiate 2. Representatives agree on terms and (authorized by Sec’y of State) sign agreement 3. President transmits agreement to Senate 4. Senate Foreign Relations Committee considers treaty and reports to Senate 5. Senate considers & approves by 2/3 majority 6. President declares treaty to be in force

23. Executive Agreement-Making Process 1. Secretary of State authorizes negotiation and U.S. representatives negotiate 2. Representatives agree on terms and (authorized by Sec’y of State) sign agreement 3. Agreement enters into force 4. President transmits agreement to Congress

24. Attempts to Rein in Executive Agreements Bricker Amendment. Proposed in 1951 as response to Truman’s agreement at Yalta. Required implementing legislation "which would be valid in the absence of treaty" before a treaty had effect within the U.S.; and granted Congress the authority to regulate all executive agreement Opposed by Eisenhower administration; a substitute version (George Amendment) fell 1 vote short in Senate in 1954

25. Attempts to Rein in Executive Agreements Case Act of 1972 requires the Sec’y of State to send to Congress within sixty days the text of "any international agreement, other than a treaty," to which United States is a party. If president decides that publication will compromise national security, he can transmit it to the Senate Foreign Relations Committee and the House Committee on Foreign Affairs under an injunction of secrecy. Regularly ignored by presidents since 1972.

26. Reid v. Covert (1957) Court invalidated an executive agreement between U.S. and Britain giving U.S. military courts jurisdiction over crimes committed by U.S. military personnel and their dependents Covert, a soldier’s wife, killed her husband and was tried under the Code of Military Justice. She argued that Congress’ power to make rules for government of military could not apply to civilians

27. Reid v. Covert (1957) Court accepted Covert’s argument, striking down the agreement as unconstitutional “The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.” “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”

28. U.N. Charter, Article 2(4) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

29. U.N. Charter, Article 51 Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations

30. The War Powers Resolution Response to unilateral presidential role in Vietnam policy Passed in 1973 over Nixon’s veto Never recognized by any other American president

31. War Powers Resolution Congress Power to Declare War Raise and support armies/navies To make Rules for the Government and Regulation (of such) Executive Commander-in- Chief Executive power (as principle)

32. The “Democratic Peace” Argument Immanuel Kant, “Perpetual Peace” (1795): constitutional republics would be less warlike because majority would not authorize war unless necessary for self-defense, unlike monarchs who are indifferent to soldiers’ lives

33. A Counterargument Phillip Bobbitt: "The power to make war is not an enumerated power.“ Congress’ power to declare is a legalism, and should be reserved for “total war” Presidential power includes such executive decisions, Congress’ role is funding

34. Dellums v. Bush (D.D.C. 1990) George H. W. Bush prepares for war on Iraq Rep. Dellums sues, with 52 other House members and 1 senator Claims that introduction of troops in Saudi Arabia requires that Bush notify Congress, start the clock on War Powers Resolution

35. Obama and Libya

36. United Nations Participation Act of 1945, Sec. 6 (partial) “The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of [the UN] … Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for [in Art. 43 of the UN Charter].”

38. U.S. v. Alvarez-Machain (1992)

39. International Powers Denied States in Article I, Section 10 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal … No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States …

40. International Powers Denied States in Article I, Section 10 No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay

41. A Critical Question: May Congress use the power to conclude treaties to expand federal power into areas otherwise left to the states?

42. Missouri v. Holland

43. An Endangered Species

44. U.S. v. Pink (1942) After the U.S. recognized the Soviet Union, the U.S. sued Pink, N.Y.’s Superintendent of Insurance for return of $1 million to the First Russian Insurance Company, a company organized prior to Bolshevik Revolution that had a NY branch. After the Revolution, the Russian government nationalized all insurance companies, making it owner of First Russian’s assets. NY refused to recognize the nationalization as legal.

45. U.S. v. Pink (1942) New York’s action "amounted in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system... No state can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively."

46. Crosby v. National Foreign Trade Council (2000) Massachusetts prohibited state agencies from purchasing with companies doing business in Burma (Myanmar) Congress had also passed legislation imposing trade sanctions on Burma, but with weaker sanctions on companies doing business there Supreme Court strikes down MA law as preempted by Congress in area properly controlled by federal government