Annotation 15 - Article II

    Section 3. Legislative, Diplomatic, and Law Enforcement Duties of the President


This clause, which imposes a duty rather than confers a power, is the formal basis of the President's legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress. 565 It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of ''usurping'' legislative powers, 566 but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators. 567 Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld. 568 The President has frequently summoned both Houses into ''extra'' or ''special sessions'' for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.


  The Right of Reception: Scope of the Power

''Ambassadors and other public ministers'' embraces not only ''all possible diplomatic agents which any foreign power may accredit to the United States,'' 569 but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President. 570 The power to ''receive'' ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws. 571 Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

  The Presidential Monopoly

Wrote Jefferson in 1790: ''The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.'' 572 So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that ''as the President was the only channel of communication between the United States and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation'; that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation'; and that no foreign agent could be 'allowed to question it,' or 'to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. 'I inform you of the fact,' he said, 'by authority from the President.' Mr. Jefferson returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.'' 573  

  The Logan Act .--When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States, his enterprise stimulated Congress to pass ''An Act to Prevent Usurpation of Executive Functions,'' 574 which, ''more honored in the breach than the observance,'' still survives on the statute books. 575 The year following John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: ''The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.'' 576 Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration. 577  

A Formal or a Formative Power .--In his attack, instigated by Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power ''to declare war,'' and in support of this proposition he disparaged the presidential function of reception, in the following words: ''I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.'' 578  

  The President's Diplomatic Role .--Hamilton, although he had expressed substantially the same view in The Federalist re garding the power of reception, 579 adopted a very different conception of it in defense of Washington's proclamation. Writing under the pseudonym, ''Pacificus,'' he said: ''The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become as an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.'' 580  

  Jefferson's Real Position .--Nor did Jefferson himself officially support Madison's point of view, as the following extract from his ''minutes of a Conversation,'' which took place July 10, 1793, between himself and Citizen Genet, show: ''He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. 'But,' said he, 'at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. 'If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea.'' 581  

  The Power of Recognition

In his endeavor in 1793 to minimize the importance of the President's power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting State had the right along with the possession. He said: ''This belongs to the nation, and to the nation alone, on whom the government operates. . . . It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors.'' 582  

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: ''In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Haiti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility.'' 583  

  The Case of Cuba .--The question of Congress' right also to recognize new states was prominently raised in connection with Cuba's final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: ''The 'recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in 'executive session.' The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. . . . Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.

''Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct . . . [is] shown by the opinions of jurists and statesmen of the past.'' 584 Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end, and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare. 585 The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.

  The Power of Nonrecognition .--The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the de facto government of Mexico, thereby contributing materially to Huerta's downfall the year following. At the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Similarly, the nonrecognition of the Chinese Communist Government from the Truman Administration to President Nixon's de facto recognition through a visit in 1972--not long after the People's Republic of China was admitted to the United Nations and the exclusion of Taiwan--proved to be an important part of American foreign policy during the Cold War. 586  

  Congressional Implementation of Presidential Policies

No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy, he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said, ''I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure.'' 587  

The fact is, of course, that Congress has enormous powers, the support of which is indispensable to any foreign policy. In the long run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power ''to make all laws which shall be necessary and proper''--that is, which it deems to be such--for carrying into execution not only its own powers but all the powers ''of the government of the United States and of any department or officer thereof.'' Moreover, its laws made ''in pursuance'' of these powers are ''supreme law of the land,'' and the President is bound constitutionally to ''take care that'' they ''be faithfully executed.'' In point of fact, congressional legislation has operated to augment presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941 588 is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration's foreign policy in the years between 1934 and 1941. 589 Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the President to use troops abroad in the absence of a declaration of war, but also limiting his economic and political powers through curbs on his authority to declare national emergencies. 590 The lesson of history, however, appears to be that congressional efforts to regain what is deemed to have been lost to the President is intermittent, whereas the presidential exercise of power in today's world is unremitting. 591  

  The Doctrine of Political Questions

It is not within the province of the courts to inquire into the policy underlying action taken by the ''political departments''-- Congress and the President--in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, which the Court would normally regard as falling within its jurisdiction. Such questions are termed ''political questions,'' and are especially common in the field of foreign relations. The leading case is Foster v. Neilson, 592 where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: ''If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.'' 593 The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co. 594 In this case, the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands, contrary to that Government's orders, sought to escape liability by showing that the Argentinean Government was the sovereign over these islands and that, accordingly, the vessel had been condemned for willful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. ''[C]an there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union.

''If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one on these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character.'' 595 Thus, the right to determine the boundaries of the country is a political function, 596 as is also the right to determine what country is sovereign of a particular region, 597 to determine whether a community is entitled under international law to be considered a belligerent or an independent state, 598 to determine whether the other party has duly ratified a treaty, 599 to determine who is the de jure or de facto ruler of a country, 600 to determine whether a particular person is a duly accredited diplomatic agent to the United States, 601 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty, 602 to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent. 603  

  Recent Statements of the Doctrine .--The assumption underlying the refusal of courts to intervene in such cases is well stated in the case of Chicago & S. Airlines v. Waterman S.S. Corp. 604 Here, the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation, which by the then terms of the Civil Aeronautics Act were subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders. Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: ''The President, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.'' 605  

To the same effect are the Court's holding and opinion in Ludecke v. Watkins, 606 where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: ''War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. . . . The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subject for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.'' 607  

The most recent Court review of the political question doctrine is found in Baker v. Carr. 608 There, Justice Brennan noted and elaborated the factors which go into making a question political and inappropriate for judicial decision. 609 On the matter at hand, he said: ''There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.'' 610 However, recently, the Court came within one vote of creating a broad application of the political question doctrine in foreign relations disputes, at least in the context of a dispute between Congress and the President with respect to a proper allocation of constitutional powers. 611 In any event, the present Court, in adjudicating on the merits disputes in which the foreign relations powers are called into question, follows a policy of such deference to executive and congressional expertise that the result may not be dissimilar to a broad application of the political question doctrine. 612  


[Footnote 565] N. Small, Some Presidential Interpretations of the Presidency (Baltimore: 1932); W. Binkley, The President and Congress (New York: 2d ed. 1962); E. Corwin, op. cit., n.44, chs. 1, 7.

[Footnote 566] The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this general effect. See 4 J. Richardson, op. cit., n.42, 1860, 1864; 6 id., 2513-2519, 2561-2562, 2608, 2615.

[Footnote 567] See sources cited supra, n.565.

[Footnote 568] Warren, Presidential Declarations of Independence, 10 B.U.L. Rev. 1 (1930); 3 W. Willoughby, op. cit., n.294, 1488-1492.

[Footnote 569] 7 Ops. Atty. Gen. 186, 209 (1855).

[Footnote 570] 5 J. Moore, International Law Digest (Washington: 1906), 15-19.

[Footnote 571] Id., 4:473-548; 5:19-32.

[Footnote 572] Opinion on the Question Whether the Senate Has the Right to Negative the Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790, 5 Writings of Thomas Jefferson, P. Ford ed. (New York: 1895), 161, 162.

[Footnote 573] 4 J. Moore, International Law Digest (Washington: 1906), 680-681.

[Footnote 574] This measure is now contained in 18 U.S.C. Sec. 953.

[Footnote 575] See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess. (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the ''Logan Act'' are given in E. Corwin, op. cit., n.44, 183-184, 430- 431.

[Footnote 576] 10 Annals of Congress 596, 613-614 (1800). Marshall's statement is often cited, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 , 319 (1936), as if he were claiming sole or inherent executive power in foreign relations, but Marshall carefully propounded the view that Congress could provide the rules underlying the President's duty to extradite. When, in 1848, Congress did enact such a statute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).

[Footnote 577] S. Doc. No. 56, 54th Congress, 2d Sess. (1897).

[Footnote 578] 1 Letters and Other Writings of James Madison (Philadelphia: 1865), 611.

[Footnote 579] No. 69 (J. Cooke ed. 1961), 468.

[Footnote 580] Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton, J. Hamilton ed. (New York: 1851), 76, 82-83.

[Footnote 581] 4 J. Moore, International Law Digest (Washington: 1906), 680-681.

[Footnote 582] Letters of Helvidius, 5 Writings of James Madison, G. Hunt ed. (New York: 1905), 133.

[Footnote 583] 1 J. Moore, International Law Digest (Washington: 1906), 243-244. See American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), Sec. Sec. 204, 205.

[Footnote 584] S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20-22.

[Footnote 585] Said Senator Nelson of Minnesota: ''The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the Constitution--we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war- making power shall be exercised.'' 31 Cong. Rec. 3984 (1898).

[Footnote 586] President Carter's termination of the Mutual Defense Treaty with Taiwan, which precipitated a constitutional and political debate, was perhaps an example of nonrecognition or more appropriately derecognition. On recognition and nonrecognition policies in the post- World War II era, see Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 202, 203.

[Footnote 587] 1 Messages and Papers of Woodrow Wilson, A. Shaw ed. (New York: 1924), 58.

[Footnote 588] 55 Stat. 31 (1941).

[Footnote 589] E. Corwin, op. cit., n.44, 184-193, 423-425, 435-436.

[Footnote 590] Legislation includes the War Powers Resolution, P.L. 93- 148, 87 Stat. 555 (1953), 50 U.S.C. Sec. Sec. 1541-1548; the National Emergencies Act, P.L. 94-412, 90 Stat. 1255 (1976), 50 U.S.C. Sec. Sec. 1601-1651 (establishing procedures for presidential declaration and continuation of national emergencies and providing for a bicameral congressional veto); the International Emergency Economic Powers Act, P.L. 95-223, 91 Stat. 1626 (1977), 50 U.S.C. Sec. Sec. 1701- 1706 (limiting the great economic powers conferred on the President by the Trading with the Enemy Act of 1917, 40 Stat. 415, 50 U.S.C. App. Sec. 5(b), to times of declared war, and providing new and more limited powers, with procedural restraints, for nonwartime emergencies); and see the Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. Sec. 1330, 1602-1611 (removing from executive control decisions concerning the liability of foreign sovereigns to suit).

[Footnote 591] ''We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice Jackson concurring). For an account of how the President usually prevails, see H. Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affairs (New Haven: 1990).

[Footnote 592] 2 Pet. (27 U. S.) 253 (1829).

[Footnote 593] Id., 308.

[Footnote 594]   38 U.S. (13 Pet.) 415 (1839).

[Footnote 595] Id., 420.

[Footnote 596] Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

[Footnote 597] Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839).

[Footnote 598] United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818).

[Footnote 599] Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853).

[Footnote 600] Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).

[Footnote 601] In re Baiz, 135 U.S. 403 (1890).

[Footnote 602] Neely v. Henkel, 180 U.S. 109 (1901).

[Footnote 603] Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 (1913).

[Footnote 604]   333 U.S. 103 (1948).

[Footnote 605] Id., 111. See also Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ricaud v. American Metal Co., 246 U.S. 304 (1918). Analogous to and arising out of the same considerations as the political question doctrine is the ''act of state'' doctrine under which United States courts will not examine the validity of the public acts of foreign governments done within their own territory, typically, but not always, in disputes arising out of nationalizations. E.g., Underhill v. Hernandez, 168 U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of this amorphous doctrine, see Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 443-444. Congress has limited the reach of the doctrine in foreign expropriation cases by the Hickenlooper Amendments. 22 U.S.C. Sec. 2370(e)(2). Consider, also, Dames & Moore v. Regan, 453 U.S. 654 (1981). Similar, also, is the doctrine of sovereign immunity of foreign states in United States courts, under which jurisdiction over the foreign state, at least after 1952, turned upon the suggestion of the Department of State as to the applicability of the doctrine. See Alfred Dunhill of London v. Republic of Cuba, supra, 698-706 (plurality opinion), but see id., 725- 728 (Justice Marshall dissenting). For the period prior to 1952, see Z. & F. Assets Corp. v. Hull, 311 U.S. 470, 487 (1941). Congress in the Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. Sec. 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d), 1602-1611, provided for judicial determination of applicability of the doctrine but did adopt the executive position with respect to no applicability for commercial actions of a foreign state. E.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). See Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 451-463 (including Introductory Note, pp. 390-396.

[Footnote 606]   335 U.S. 160 (1948).

[Footnote 607] Id., 167, 170. Four Justices dissented, by Justice Black, who said: ''The Court . . . holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order. . . . I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported.'' Id., 174-175. See also Woods v. Miller Co., 333 U.S. 138 (1948), where the continuation of rent control under the Housing and Rent Act of 1947, enacted after the termination of hostilities, was unanimously held to be a valid exercise of the war power, but the constitutional question raised was asserted to be a proper one for the Court. Said Justice Jackson, in a concurring opinion: ''Particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care.'' Id., 146-147.

[Footnote 608]   369 U.S. 186 (1962).

[Footnote 609] Id., 217.

[Footnote 610] Id., 211-212. A case involving ''a purely legal question of statutory interpretation'' is not a political question simply because the issues have significant political and foreign relations overtones. Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229 -230 (1986) (Fisherman's Protective Act does not completely remove Secretary of Commerce's discretion in certifying that foreign nationals are ''diminishing the effectiveness of'' an international agreement by taking whales in violation of quotas set pursuant to the agreement).

[Footnote 611] Goldwater v. Carter, 444 U.S. 996, 1002 -1006 (Justices Rehnquist, Stewart, and Stevens and Chief Justice Burger). The doctrine was applied in just such a dispute in Dole v. Carter, 569 F.2d 1109 (10th Cir., 1977).

[Footnote 612] ''Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.'' Haig v. Agee, 453 U.S. 280, 292 (1981). See also Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); Rostker v. Goldberg, 453 U.S. 57, 64 -68 (1981); Greer v. Spock, 424 U.S. 828, 837 -838 (1976); Parker v. Levy, 417 U.S. 733, 756 , 758 (1974); Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). Neither may private claimants seek judicial review of executive actions denying constitutional rights ''in such sensitive areas as national security and foreign policy'' in suits for damages against offending officials, inasmuch as the President is absolutely immune, Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Court has strongly hinted that in these areas the immunity of presidential aides and other executive officials ''entrusted with discretionary authority'' will be held to be absolute rather than qualified. Harlow v. Fitzgerald, 457 U.S. 800, 812 -813 (1982).


Annotations p. 15