The constitutional design for foreign affairs, with its emphasis on republican principles, separation of powers, checks and balances, and collective decision making, has been challenged, confronted and, frankly, undermined by the “sole organ” doctrine—the assertion that the President enjoys broad, unilateral and, essentially, exclusive authority over the conduct of American foreign policy. Presidents of both parties have invoked the doctrine has sweeping authority for virtually all acts in the realm of international relations: war making, covert action, suspension and termination of treaties, executive agreements, creation of military tribunals, domestic surveillance, rigorous examination of detainees, and more. The far-reaching scope of the doctrine was set forth in a Memo prepared by Deputy Assistant attorney, John Yoo, in the Office of Legal Counsel on September 25, 2001: “As future Chief Justice John Marshall famously declared [in 1800]: ‘The President is the sole organ of the nation in its eternal relations, and its sole representative with foreign nations . . . .The [executive] department is entrusted with the whole foreign intercourse of the nation.’” On that basis, Yoo argued, “it has not been difficult for the executive branch consistently to assert the President’s plenary authority in foreign affairs ever since.” Marshall’s speech had nothing to do with plenary executive power. As perhaps the principal pillar of presidential assertions of foreign affairs powers, the sole organ doctrine bears close scrutiny.
The sole organ doctrine appears to boast an impressive pedigree, the purported origins of which are expressed in a speech in the House of Representatives by then Congressman (later Chief Justice) John Marshall. The doctrine, a recitation of Blackstone’s review of the English King’s vast foreign affairs powers, has been attributed to Marshall, but he never gave voice to, and never supported–in any way, shape or form– the planks, propositions and pillars on which it has been built.
The claim of unilateral executive foreign affairs power has often been grounded in the claim that the President is the sole organ of American foreign policy. The Supreme Court introduced the “sole organ” doctrine, albeit in dicta, to American foreign affairs jurisprudence in 1936 in United States v. Curtiss-Wright Export Corporation. Justice George Sutherland’s opinion for the Court, as well as the dicta that he employed, is deeply flawed and it has been soundly repudiated.
In Curtiss-Wright, the Court was asked to rule on the constitutionality of a 1934 statute that authorized the President, Franklin D. Roosevelt, to impose an arms embargo on Bolivia and Paraguay, then involved in the Chaco War “if” he determined that the embargo “may contribute to the reestablishment of peace” between the belligerents. Once Roosevelt learned that Curtiss-Wright was the principal supplier of war weapons for both belligerents, it was relatively easy to believe that he was well -grounded in a decision to invoke the statutory delegation of contingent authority to help restore peace. As a consequence, Curtiss-Wright attacked the statute as an unconstitutional delegation of legislative authority.
In his opinion for the Court, Justice Sutherland upheld the delegation of power against the argument that it was too broad. Sutherland might have stopped at that point since the delegation question was the only issue in the case: how much authority may Congress delegate to the President. Sutherland wrote for the Court that the statute was not “vulnerable to attack under the rule that forbids delegation of the law-making power.” If, in his opinion, Justice Sutherland had confined himself to the delegation issue, Curtiss-Wright would have been lost in the shadow of Panama Refining Co. v. Ryan (1935), and Schechter Poultry Co. v. United States (1935). But Sutherland soared beyond the issue before the Court and in page after page of ill-considered dicta, imparted an unhappy legacy, the chimerical idea that the external sovereignty of the nation is vested in the Presidency, and is neither derived from nor restrained by the Constitution. Foreign affairs, moreover, were essentially executive, which Sutherland explained “as the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Justice James C. McReynolds dissented, but filed no opinion. Chief Justice Harlan Fiske Stone was ill and did not participate in the case but subsequently criticized the opinion in United States v. Pink (1942), and in private correspondence.
Justice Sutherland sought authority for his proposition in the majesty of John Marshall’s name and stature in American law. But a careful reading of Marshall’s words make it pellucidly clear that he never advocated inherent or plenary powers for the President in the conduct of American foreign policy. In 1800, in a speech delivered on the floor of the House of Representatives, then Congressman John Marshall defended President John Adams’s decision to return Jonathon Robbins to England in accordance with an extradition provision in the Jay Treaty. . Robbins had been charged with murder. Since the case was working its way through the American legal system, Adams’s critics called for his impeachment on grounds that he had encroached on the power of the judiciary and violated the separation of powers doctrine. Marshall defended Adams’s decision. Adams, he said, was merely executing a treaty; he was not making policy, but merely implementing it. Adams, Marshall said, was acting under express language of a treaty which, by virtue of the Supremacy Clause in Article VI of the Constitution, is part of the “supreme Law of the Land.” Marshall noted that the “President is the sole organ of the nation in its external relations . . . . Of consequence, the demand of a foreign nation can only be made on him.” In short, as Marshall explained, the demand required a response from the President on behalf of the American people. At no point in his speech did Marshall argue that the President’s exclusive authority to communicate with foreign nations carried with it a power to formulate or develop policy. For that matter, Marshall, throughout his long career on the Supreme Court, never invoked the sole organ doctrine as a source of executive authority to make foreign policy. It will be recalled, for example, that in Talbot v. Seeman (1801), that Marshall held that “the whole powers of war” are assigned by the Constitution to Congress. And, in Little v. Barreme (1804), he wrote for the Court that a congressional statute controls the President, in his role as Commander in Chief, during times of war. Sutherland’s false portrayal of Marshall’s speech was stunning. Edward S. Corwin properly concluded: “Clearly, what Marshall had foremost in mind was the president’s role as instrument of communication with other governments.” This point of procedure had been acknowledged in 1793 by Secretary of State Thomas Jefferson, who had acknowledged that the President was “the only channel of communication between this country and foreign nations.” That understanding had not been challenged for nearly 150 years–until Sutherland’s opinion in Curtiss-Wright.
It was Justice Sutherland who misappropriated Marshall’s speech and infused the president’s communicative duty with a substantive, discretionary, policymaking function and thereby manufactured a great power out of the Marshallian sole organ doctrine. Sutherland wrote that authority in foreign affairs was essentially an executive power, which he explained “as the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Sutherland’s transformation of a communicative role into an independent indeed, “plenary” policymaking role led Myres McDougal and Asher Lans to observe that Sutherland had confused the “organ” with the “organ grinder.”
Justice Sutherland’s confusion, it may be said, effectively undermined the constitutional design for cooperation and collective decision making in the conduct of foreign relations. Curtiss-Wright was, indeed, a radical, path-breaking opinion that finds no foundation in the architecture of the Constitution—text, framing, Convention and state ratifying debates, constitutional structure or seminal Supreme Court decisions rendered at the Dawn of the Republic. As a matter of definition, the President is not the “sole” organ of American foreign policy. Indeed, if Congress possessed but a single foreign affairs power, that allocation would shatter Sutherland’s premise. And, as we have seen, Congress is vested with the bulk of the nation’s foreign affairs powers.
Justice Sutherland’s dicta in Curtiss-Wright have been widely repudiated by scholars In his memorable concurring opinion for the Supreme Court in Youngstown Sheet & Tube Co. (1952), Justice Robert H. Jackson observed that “much of Sutherland’s opinion is dictum.” He explained that the most that could be drawn from Curtiss-Wright is the intimation that the President “might act in external affairs without congressional authority, but that he might not act contrary to an act of Congress.” But the Supreme Court, and lower federal courts, have invoked Curtiss-Wright in their support of presidential actions abroad, despite Jackson’s just dismissal of Sutherland’s dicta. In Zivotofsky v. Kerry (2015), however, the Supreme Court stated that it is not bound by the dicta in Curtiss-Wright. That case, and the Court’s disposition toward the exercise of presidential power—in foreign and domestic matters–are treated in subsequent sections. At all events, Curtiss-Wright remains a pillar of presidential power to be invoked by presidents and lawyers whenever the legality of the president’s foreign affairs actions is questioned.