The Law Treaty Negotiation: A Presidential Monopoly?

United States v. Curtiss-Wright (1936) involved a dispute over legislation passed by Congress two years earlier authorizing the president to impose an arms embargo in a region in South America. The issue was whether Congress had delegated too much of its legislative power to the president. In 1935, the Supreme Court had struck down two delegations of power to the president involving domestic policy. (1) The question presented in Curtiss-Wright was a narrow one: could Congress delegate greater discretion to the president in foreign affairs? Writing for a 7-1 Court, Justice George Sutherland decided that it could. Justice James C. McReynolds dissented, stating his opinion that the district court reached the right conclusion by striking down the delegation as excessive. Justice Harlan Fiske Stone did not take part in the consideration or decision of the case. Judicial Misconceptions In upholding the delegation of legislative authority, Justice Sutherland spoke about "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." He said the two classes of powers "are different, both in respect of their origins and their nature." (2) Congressional legislation, to be made effective in the international field, "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." (3) In this passage, Sutherland not only sustains the delegation but recognizes a field of independent presidential power that cannot be restricted by Congress. The problems with his constitutional analysis and historical understanding are treated in an earlier article (Fisher 2007b). Many scholars have pointed out the deficiencies of Justice Sutherland's "sole organ" doctrine, his recognition of "inherent" and "extra-constitutional" powers for the president, and his account of the flow of sovereignty and external affairs to the United States (Brownell 2000; Goebel 1938; Levitan 1946; Lofgren 1973; Patterson 1944; Quarles 1944; Ramsey 2000; Simones 1996; Van Tyne 1907). This article examines the errors of Justice Sutherland with regard to the president's constitutional authority to negotiate treaties. Not only did Sutherland attempt to show that the federal power over external affairs was distinctly different in origin and character from that over internal affairs, "but participation in the exercise of the power is significantly limited." In the field of external affairs, he said, the Constitution required the president to share with the Senate the treaty-making power, "but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." (4) In making this assertion, Sutherland ignored his own experiences and writings as a U.S. senator from Utah and demonstrated no grasp of how often presidents in the past had shared treaty negotiation with members of Congress, both senators and representatives. Constitutional Theory The Constitution provides little guidance on how treaties are to be negotiated. Article II, section 2, empowers the president, "by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." Article I, section 10, prohibits states from entering into any treaty, alliance, or confederation. That section also prohibits a state, without the consent of Congress, from entering into "any Agreement or Compact" with a foreign power. The supremacy clause in Article VI defines treaties, along with the Constitution and statutes, as "the supreme Law of the Land." Otherwise, the Constitution is silent about many elements of the treaty-making power. It says nothing about the president's authority to negotiate treaties, the process of terminating a treaty, or the allocation of authority to interpret and reinterpret a treaty. …