Congressional Implementation of Presidential Polices
SECTION 3. He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
No President was ever more jealous of his prerogative in the realm of foreign relations than 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.”675
The fact is, of course, that Congress has enormous powers that are 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, 1941676 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 1941.677 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.678 The lesson of history, however, appears to be that congressional efforts to regain what is deemed to have been lost to the President are intermittent, whereas the presidential exercise of power in today’s world is unremitting.679The 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, that 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,680 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’s opinion for the Court 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 wrote: “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.”681
The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co.682 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 Argentinian 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 of 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.”683 Thus, the right to determine the boundaries of the country is a political function,684 as is also the right to determine what country is sovereign of a particular region,685 to determine whether a community is entitled under international law to be considered a belligerent or an independent state,686 to determine whether the other party has duly ratified a treaty,687 to determine who is the de jure or de facto ruler of a country,688 to determine whether a particular person is a duly accredited diplomatic agent to the United States,689 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty,690 to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.691
Recent Statements of the Doctrine.—The assumption underlying the refusal of courts to intervene in cases involving conduct of foreign relations is well stated in Chicago & S. Air Lines v. Waterman S. S. Corp.692 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 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.”693
To the same effect are the Court’s holding and opinion in Ludecke v. Watkins,694 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.”695
The Court reviewed the political question doctrine in Baker v. Carr.696 There, Justice Brennan noted and elaborated the factors which go into making a question political and inappropriate for judicial decision.697 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.”698 However, 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.699 In any event, the 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.700
675 1 Messages And Papers Of Woodrow Wilson 58 (A. Shaw ed., 1924).
676 55 Stat. 31 (1941).
677 E. Corwin, supra at 184–93, 423–25, 435–36.
678 Legislation includes the War Powers Resolution, Pub. L. 93–148, 87 Stat. 555 (1953), 50 U.S.C. §§ 1541–1548; the National Emergencies Act, Pub. L. 94–412, 90 Stat. 1255 (1976), 50 U.S.C. §§ 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, Pub. L. 95– 223, 91 Stat. 1626 (1977), 50 U.S.C. §§ 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. § 5(b), to times of declared war, and providing new and more limited powers, with procedural restraints, for nonwartime emergencies); see also the Foreign Sovereign Immunities Act of 1976, Pub. L. 94–583, 90 Stat. 2891, 28 U.S.C. §§ 1330, 1602–1611 (removing from executive control decisions concerning the liability of foreign sovereigns to suit).
679 “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 (1990).
680 27 U.S. (2 Pet.) 253 (1829).
681 27 U.S. at 309.
682 38 U.S. (13 Pet.) 415 (1839).
683 38 U.S. at 420.
684 Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).
685 Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839).
686 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818).
687 Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853).
688 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).
689 In re Baiz, 135 U.S. 403 (1890).
690 Neely v. Henkel, 180 U.S. 109 (1901).
691 Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 (1913).
692 333 U.S. 103 (1948).
693 333 U.S. at 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, Inc. v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of this amorphous doctrine, see Restatement, Foreign Relations, §§ 443–44. Congress has limited the reach of the doctrine in foreign expropriation cases by the Hickenlooper Amendments. 22 U.S.C. § 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, 425 U.S. at 698–706 (plurality opinion), but see id. at 725–28 (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, Pub. L. 94–583, 90 Stat. 2891, 28 U.S.C. §§ 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, §§ 451–63 (including Introductory Note, pp. 390–396).
694 335 U.S. 160 (1948).
695 335 U.S. at 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. at 174–75. See also Woods v. Cloyd W. 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. at 146–47.
696 369 U.S. 186 (1962).
697 369 U.S. at 217.
698 369 U.S. at 211–12. 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 Ass’n v. American Cetacean Society, 478 U.S. 221, 229–30 (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).
699 Goldwater v. Carter, 444 U.S. 996, 1002–06 (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).
700 “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, 812–13 (1982).