Foreign Relations Outline

Foreign Relations and National Security Outline

Prof. Clark

Spring 2012

I. Foreign Relations Law: Nature and Constitutional Structure

A. Origins and Nature of U.S. Foreign Relations Law

· Constitutional Allocation of Powers

¨ Congress

Ø Article I

Ø Legislative Power

Ø Provide for common defense, including raising an army and nevy

Ø Foreign commerce power

Ø Establish laws on naturalization

Ø Define and punish piracies and felones committed on the high seas, and offenses against the law of nations

Ø Declare war

Ø Call forth militia to reple invasions

Ø Senate power to consent to treaties

¨ President

Ø Article II

Ø Executive Power

Ø Swears to protect Constitution

Ø Power to receive and appoint ambassadors

Ø Commander-in-chief

Ø Makes treaties

Ø Faithfully execute laws

¨ Judiciary

Ø Article III

Ø Judicial Power

Ø Hears cases regarding:

§ Treaties

§ Ambassadors

§ Admiralty

· Chinese Exclusion Case

¨ The Government has powers to exercise for protection and security, and is permitted to determine when to exercise them. (Chinese Exclusion Case)

¨ The right to preserve independence and give security against the hordes of outsiders flowing across the borders gives the government these powers. (Chinese Exclusion Case)

¨ The power to declare war and the power to exclude are one in the same for the legislative branch. (Chinese Exclusion Case)

¨ The legislature’s decision is conclusive to the judiciary. If the foreign government is dissatisfied it can make complaint to the executive branch here, or whatever actions they see fit. (Chinese Exclusion Case)

B. Balancing Concurrent Congressional-Presidential Power

· Little v. Barreme (Case about “from” France vs. “To or from”)

¨ The President does not have the inherent authority or power to ignore a law passed by Congress. (Little v. Barreme)

¨ President’s orders do not excuse the actions by the captain

¨ Congress makes laws which are to be enforced by the President. (Little v. Barreme)

¨ Congress has the power to regulate commerce with foreign nations and to punish felonies committed on the high seas, thus, an Act passed by Congress focused on foreign ships engaged in commerce, is lawful. (Little v. Barreme)

· US v. Curtiss-Wright Export Corp. (Congress says president can determine whether to stop sale of arms in Bolivia and Paraguay)

¨ The President is the constitutional representative of the United States, and therefore is empowered to conduct certain acts of foreign affairs.

¨ The Executive, by its very nature, is empowered to conduct foreign affairs in a way which Congress cannot and should not

¨ Uniform, long-continued and undisputed legislative practice supports the ability of the congress to do this

¨ The executive gains power by the notion of power outside of the explicit wording of the Constitution.

· Youngstown Sheet and Tube Co. v. Sawyer. (president tries to nationalize the steel mills)

¨ The President’s power to act must either come from Article II or from an Act of Congress.

¨ Congress had specifically considered granting the congress this power, but then rejected it.

¨ Congress alone makes laws

¨ This is also a taking, which is under the exclusive control of congress

¨ Jackson Concurrence- President vis a vis Congress

Ø Three Categories: Ranked in Order of Legitimacy

§ President actions pursuant to express or implied authorization of Congress means that the actions are almost always Constitutional unless the whole federal government lacks constitutional power. (like curtiss-wright case)

§ Concurrent power, where the distribution of power is uncertain, generally because the Constitution seems silent. 50/50 zone of twilight.(like suspension of habeas corpus by Lincoln)

§ President acts contrary to express or implied will of Congress. (this case)

· President can only rely on Constitutionally granted power.

· Constitution does not grant unlimited executive power, or it would not specify specific powers.

· Court must determine whether the President or Congress has the exclusive power to act. Almost always goes against the executive.

¨ The President’s role as Commander in Chief of the Army and Navy does not make him Commander in Chief of the country—executive power over the military and foreign relations cannot stretch over internal affairs of the country

¨ Remember also that it is Congress’s authority to support and provide for the armed services, not the President’s

· CONCURRNT POWER

¨ Concurrent presidential power is probably only clear allowed where Congress has not made a statute governing the issue. Also, Congress can restrict or amend any policy that the president chooses to implement in concurrent power.

¨ Acts by president under concurrent power can only be performed constitutionally if the congress has not acted.

¨ Dames and Moore v. Regan

Ø Congress’s historical tacit consent can evince a legislative intent to allow the president broad discretion in particular areas

¨ Louisiana Purchase

Ø Where is the power in the Constitution to run territory that is not a state?

Ø You can claim a territory and mark it, but buying it is a different situation.

Ø Jefferson, therefore, had the power to negotiate with the French and got an amazing deal.

· Non-delegation

¨ Theory that because Article I, Section 1 grants congress all legislative power it cannot delegate it to anyone else.

¨ However, there appears to be considerable delegation to the President in foreign affairs.

¨ Reasons for Delegation in Foreign Affairs

Ø Ensures that most important choices are still made by Congress, who has to make the decision to delegate.

Ø Congress sets for the principles to guide the delegated power anyway.

Ø Permits courts to test whether delegated power was properly exercised against the standards set by Congress.

Ø Although Curtiss-Wright suggested that congress could easily delegate foreign affairs things to the president, it is certainly not without limits. Recent cases have made it clear that simply because a statute deals with foreign affairs, it cannot grant the executive totally unrestricted freedom of choice

¨ IN ORDER TO DELEGATE: Requirement that Congress “lay down the general policy and standards that animate the law, leaving the agency to refine those standards, to fill in the blanks, or to apply those standards to particular cases

Ø However, no federal statute has been struck down under the non-delegation doctrine in 50 years

· INS v. CHADHA (case where the immigrant was set to be deported by the executive, pursuant to a statute authorizing the president to have this power, then the house by itself passed a resolution not to deport him.)

¨ The only way to legislate is through Art I, with both houses and presentment to the President (bicameralism and presentment requirements of most legislation unless specifically exempted)

¨ Whether an act is legislative depends not upon form, but upon whether it is legislative in its character and effect

Ø Something which has the purpose and effect of altering legal rights, duties, and relations of persons, or affecting power between the branches is legislative

¨ Congress may not promulgate a statute granting to itself a legislative veto over the actions of the executive branch consistent with the bicameralism principle and Presentment Clause of the United States Constitution.

¨ Congress needs either a bill or a joint resolution to defeat a valid presidential action.

¨ In this case, even though the Congress had been giving itself the legislative veto for years, the practice was outlawed

· Joint Resolution

¨ Very similar to an Act, needs both Houses and the President through the Presentment Clause.

¨ A joint resolution cannot be passed without the President, unless congress has the votes for the override

¨ Concurrent Resolutions only make it through the two houses and are not presented to the president so they do not become law

· Other means of Delegation

¨ The supreme court has upheld the constitutionality of statutes which condition the authority granted therein upon the occurrence or nonoccurrence of a specified contingent event.

¨ An act could be written to condition an exercise of power by the president on approval by a bill/joint resolution

C. Balancing Concurrent Power in Emergencies

· Ex Parte Merryman (suspension of habeas corpus by Lincoln)

¨ The suspension was unconstitutional because only the congress is granted the power to suspend habeas corpus in the constitution (Art I, Sec 9, Cl 2)

· KOREMATSU v. US (Japanese internment case)

¨ It is within the war powers of Congress to intern the Japanese in the United States due to the wartime threat, not due to racial bias.

¨ Definite and close relatio