"Presidential Residual Power in Foreign Affairs,"47 Capital University Law Review 491 (2019). In addition to express and implied powers, some scholars and Supreme Court Justices attribute to the President "residual powers" in external affairs. By analyzing what is meant by "residual," I discovered at least six different definitions in the scholarly literature. For that and other reasons, I conclude that adding "residual" powers to the presidential repository "is unnecessary and ill-advised for many reasons," including the difficult task of defining the term. Moreover, efforts to locate presidential residual powers take us back to various precedents established more than two centuries ago, inviting additional misconceptions and errors.
"A Challenge to Presidential Wars: Smith v. Obama," 44 Congress & the Presidency 259 (2017). Starting with Harry Truman's war against North Korea in 1950 and extending to Barack Obama's military actions against Libya in 2011, Presidents have exercised the war power without any statutory support from Congress. Instead, they claim "authority" from United Nations resolutions and NATO allies. A lawsuit by Captain Nathan Michael Smith in 2016 challenged these presidential initiatives.
"The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky,"31 Constitutional Commentary 149 (Summer 2016). Beginning with the 1936 decision in United States v. Curtiss-Wright and carrying forward to the 2015 decision in Zivotofsky v. Kerry, errors and misconceptions by Supreme Court have promoted independent presidential powers in external affairs. The decision in 2016 jettisoned the sole-organ doctrine in Curtiss-Wright but allowed two other errors in the 1936 decision to continue and developed a new model of presidential power that is close cousin to the sole-organ doctrine.
Review of "Imperial from the Beginning: The Constitution of the Original Executive," by Saikrishna Bangalore Prakash" (2015), appearing in 63 The Federal Lawyer 75 (June 2016). The title of this book and early chapter headings suggest that Prakash offers the U.S. President as a replica of William Blackstone's king, with exclusive power over the power to declare war, make treaties, and appoint ambassadors. Although Prakash distinguishes the U.S. President from Blackstone's model, his claim that America adopted a "republican monarchy" and "elective monarch" creates the misconception of imperial rule in the United States.
"Don't Act Unilaterally to Close Guantánamo," National Law Journal, Dec. 7. 2015. During his presidential campaign in 2007, Barack Obama criticized the administration of George W. Bush for claiming broad presidential powers that could not be curbed by Congress. If elected President, Obama pledged to "follow existing law." He denied that the President possessed a power to disregard congressional statutes, emphasizing that the President "is not above the law." Once in office, Obama began to act unilaterally and use signing statements that he would not be bound by certain statutory provisions. During a hearing before the House Judiciary Committee on November 17, 2015, Attorney General Loretta Lynch testified that the Justice Department was committed to fully follow the law, including restrictions on transferring Guantánamo detainees to the U.S. mainland.
"Presidential Unilateral Actions: Constitutional and Political Checks," 42 Congress & the Presidency 293 (2015). From 1789 to the present time, Presidents have claimed a broad array of powers to justify initiatives without coming to Congress for statutory authority: implied, inherent, prerogative, ministerial, discretionary, and the "sole-organ" doctrine in external affairs. This article explains how these powers have been misunderstood, abused, and checked.
"Jefferson and the Burr Conspiracy: Executive Power against the Law," 45 Pres. Stud. Q. 157 (2015). On January 22, 1807, President Jefferson notified Congress that a number of individuals had entered into a conspiracy that endangered the country. Because rumors and suspicions made it difficult to establish the facts, he declined to identify the people but did name Aaron Burr "whose guilt is placed beyond question." This article analyzes Jefferson's single-minded effort to prosecute and convict Burr of treason, which carried the penalty of death by hanging. After a lengthy trial, a jury found Burr not guilty.
"DOJ's Argument in Immigration Case At Odds with the Law-and Obama," National Law Journal, April 20, 2015. A Justice Department brief submitted to the Fifth Circuit, seeking to reverse a preliminary injunction against the November 20 immigration initiative, presents an extreme argument that executive decisions in the field of immigration and not subject to judicial review. Also extreme is the DOJ claim that the injunction "obstructs a core executive prerogative" and "offends basic separation-of-powers principles." Instead, the administration's legal arguments offend the American system of checks and balances.
"A Tale of Two Immigration Judgments," Boston Review, March 31, 2015. The press paid primary attention to a decision by a federal district judge in Texas on February 16, who placed a preliminary injunction against the initiative by the Obama administration to extend benefits to about five million undocumented immigrants. A second case, handed down by a federal district judge in the District of Columbia four days later, ruled against the administration's policy to place in detention centers mothers and their minor children fleeing violence in Central America. He held that the plaintiffs had a right to raise a due process claim under the Fifth Amendment.
"With Immigration Plan, Obama Invited Legal Scrutiny," Boston Review, Feb. 26, 2015. On November 20, 2014, Obama announced a major initiative to give benefits to more than four million illegal immigrants through the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). If they agreed to register and undergo background checks, they could gain authority to work, a Social Security number, a driver's license, and be safe from deportation for three years. On February 15, 2015, a federal district judge in Texas placed a temporary injunction on the program.
"Brief of the Week: Can the Supreme Court Correct Erroneous Dicta?,"Jamie Schuman, National Law Journal, November 3, 2014. This article focuses on an amicus brief submitted by Louis Fisher to the Supreme Court on July 17, 2014, in the case of Zivotofsky v. Kerry, regarding a congressional statute that required the State Department to permit U.S. citizens born in Jerusalem to list "Israel" as their birthplace on passports. In striking down this provision as an infringement on "exclusive" presidential" power, the D.C. Circuit relied five times on dicta from the 1936 Curtiss-Wright decision that refers to a speech by John Marshall in 1800 that the President is "the sole organ of the nation in its external relations." The article points out that Fisher's students at the William and Mary Law School read this speech and they easily understand it to be erroneous dicta that should not guide constitutional law.
Justice Department Brief in Zivotofsky v. Kerry (Sept. 2014)In this brief, the Department relies on misconceptions about core constitutional principles, relies heavily on erroneous dicta in Curtiss-Wright, promotes the President as having an exclusive voice in external affairs instead of the Constitution's design of a shared power with Congress, treats as synonymous the constitutional grants of "implied" powers for all three branches with the entirely different concept of "inherent" presidential powers regularly rejected by Congress and the Supreme Court, and offers as supporting evidence a number of misleading and false citations.
"Erroneous Dicta in Curtiss-Wright," amicus brief to the Supreme Court, July 17, 2014, in Zivotofsky v. Kerry. In United States v. Curtiss-Wright Export Corp. (1936), the Supreme Court upheld the delegation of legislative power to the President to impose an arms embargo in a region of South America. In so doing, the Court relied on a speech by John Marshall in1800 when he served in the House of Representatives, stating that the President is "the sole organ of the nation in its external relations," implying that the President possesses plenary, exclusive, independent, and inherent powers in foreign affairs, a position Marshall did not take in the speech or during his decades as Chief Justice of the Supreme Court. Reference to the speech was not merely dicta but plainly erroneous and has, over the years, greatly magnified presidential power and damaged the system of checks and balances. This brief requests the Court to correct the error.
"Getting it Wrong Again and Again-Judicial Error's Compounding Effect," National Law Journal, November 18, 2013, p. 31, Supreme Court rulings are generally treated as authoritative guides in deciding questions of constitutional law. Suppose a ruling contains clear judicial error about a question of history, such as the "sole organ" doctrine promoted in dicta by Justice George Sutherland in his 1936 Curtiss-Wright decision. Why is that a legitimate precedent? Because of the Jerusalem passport case (Zivotofsky) decided by the D.C. Circuit on July 23, 2013, the Court has an opportunity to grant cert and correct the error.
"D.C. Circuit Court Adopts Old Judicial Error to Inflate Executive Power" Roll Call, September 16, 2013, p. 15. A federal appellate court on July 23, 2013, ruled that a law Congress passed in 2002 "improperly infringes" on the President's power to recognize foreign governments. To reach that conclusion, the court four times cited erroneous and blatantly deceitful language from a 1936 Supreme Court decision in United States v. Curtiss-Wright Export Corp. In accepting language from this decision, the appellate court acknowledged it was relying on judicial dicta by Justice George Sutherland. In fact, it was relying on judicial error.
“The Unitary Executive and Inherent Executive Power," 12 U. Pa. J. Const. L. 569 (2010). Excessively broad arguments for a "Unitary Executive" can easily open the door to the exercise of "inherent" executive powers and the claim that they are not subject to legislative or judicial checks. It is true that the framers looked to the President for accountability and acknowledged the need for limited implied powers, such as the power to remove department heads when they interfere with the execution of law. However, many executive functions are mandatory and not subject to presidential control, including ministerial actions required to carry out the law and various adjudicatory functions performed by the agencies.
“Extraordinary Rendition: The Price of Secrecy,” 57 Am. U. L. Rev. 1405 (2008). Assertions of inherent power after 9/11 led to the practice of “extraordinary rendition,” claiming that the President possesses independent and plenary authority to seize individuals and transfer them to other countries for interrogation and torture. This article analyzes the source of authority for extradition, rendition, forcible abduction, and extraordinary rendition. For all categories except the latter, the individual is taken to a country for trial and has access to regular procedural safeguards. The article concludes by examining recent litigation on extraordinary rendition.
“Treaty Negotiation: A Presidential Monopoly?,” 38 Pres. Stud. Q. 144 (2008). This article examines the claim by Justice George Sutherland in United States v. Curtiss-Wright (1936) that the President makes treaties with the advice and consent of the Senate “but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” Not only is this statement dicta and extraneous to the issue before the Court, it is also at odds with Senate history and Sutherland’s own experience as a U.S. Senator from Utah. Senators (and Representatives) have often been involved in the negotiation of treaties.
Statement before the House Committee on the Judiciary, "Constitutional Limitations on Domestic Surveillance," June 7, 2007. This testimony reviews what happened in the 1960s and 1970s with regard to domestic surveillance by the executive branch, leading to federal court rejections of the theory that the President has “inherent” constitutional authority to engage in warrantless domestic surveillance. House and Senate hearings prepared the way for enactment of the Foreign Intelligence Surveillance Act (FISA) of 1978. The balance of the testimony analyzes the legal defense by the Bush administration for the Terrorist Surveillance Program (TSP) conducted after 9/11, including statutory and constitutional justifications and executive branch briefings to the “Gang of Eight.”
"Presidential Inherent Power: The 'Sole Organ' Doctrine," . 37 Pres. Stud. Q. 139 (2007). The executive branch often relies on the “sole organ” doctrine to define presidential power broadly in foreign relations and national security, including assertions of inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall when he served as member of the U.S. House of Representatives in 1800: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” In dicta in the case of United States v. Curtiss-Wright (1936), Justice George Sutherland took Marshall’s statement out of context to advocate an independent, plenary, exclusive, and extra-constitutional power for the President, but Marshall made no such claim in his speech or in his public service as Secretary of State and Chief Justice of the Supreme Court. [The decision and Marshall’s speech are provided at the end of this section on “Presidential Inherent Powers.”]
“Invoking Inherent Powers: A Primer,” 37 Pres. Stud. Q. 1 (2007). At various times in American history, Presidents have claimed “inherent” powers to take certain actions in periods of emergency. President Truman’s seizure of steel mills in 1952 is one example. Another is the claim by President Nixon that he could order warrantless domestic surveillance. Those claims were struck down in court. This article provides an overview of inherent powers and focuses particularly on its application during the presidency of George W. Bush with regard to military commissions, detaining “enemy combatants,” the “torture memos” prepared by attorneys in the Justice Department, extraordinary rendition, and NSA surveillance.
“The ‘Sole Organ’ Doctrine,” August 2006, a paper prepared for the Law Library as part of studies on presidential power in foreign relations. The paper provides a detailed examination of the “sole organ” doctrine made popular by Justice George Sutherland in his opinion in United States v. Curtiss-Wright (1936). The study explains why his use mischaracterizes what John Marshall said in a floor speech in 1800, while a member of the U.S. House of Representatives, and includes critiques and analyses by scholars and judicial citations to “sole organ.” Although the Supreme Court has at times described the President’s foreign relations power as “exclusive,” it has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs
“Congressional Participation in the Treaty Process,” 137 U. Pa. L. Rev. 1511 (1989). Contrary to the claim that Presidents negotiate treaties single-handedly, members of Congress are often included in that process to assure that treaties are ratified by the Senate and authorized and funded by Congress. For example, House and Senate members were included in the negotiating team that helped produce the United Nations Charter in 1945. The experience of President George Washington in meeting with Senators on August 21, 1789 to discuss negotiation of an Indian treaty is generally misunderstood. Although in the future he decided not to personally visit with Senators, he continued to seek their advice on treaty negotiation through written communications. Other Presidents also understood the value of seeking the advice of lawmakers on how best to pursue treaty negotiation.
United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936). The entire text of this decision is provided here, including the core of the ruling that upheld the delegation of congressional power to the President in international relations, and the dicta that misleadingly claimed plenary presidential power in external affairs by citing such sources as the "sole organ" doctrine.
John Marshall's “sole organ” speech in 1800. In defending the decision of President John Adams to hand over a prisoner to England, Rep. John Marshall did not rely on inherent or plenary presidential power over external affairs. Marshall justified the action on the basis of presidential authority under the Jay Treaty to extradite individuals accused of certain crimes.