CURTISS-WRIGHT EXPORT CORPORATION, UNITED STATES v. 299 U.S. 304 (1936)

Nearly two years after Paraguay and Bolivia went to war in 1932, Congress authorized President franklin d. roosevelt to embargo American arms shipments to the belligerents if he found that the action might contribute to reestablishing peace. Indicted in January 1936 for conspiring to violate the embargo resolution and Roosevelt's implementing proclamation, Curtiss-Wright Export Corporation demurred on grounds of unconstitutional delegation of power. Recent rulings against new deal legislation in panama refining co. v. ryan (1935) and schechter poultry corp. v. united states (1935) lent weight to the company's position, and the district court sustained the demurrer. On appeal, however, the Supreme Court approved the embargo resolution and proclamation with a ringing endorsement of independent presidential authority in the area of foreign affairs.

For a 7–1 majority, Justice george sutherland defended the embargo measures by distinguishing between powers of internal and external sovereignty, a distinction the government had not employed in arguing Curtiss-Wright. For him, the federal government's domestic authority derived from states having delegated power via the Constitution. External sovereignty had passed, however, from the British Crown to the United Colonies and then to the United States in their collective capacities, with the states severally never possessing it nor delegating it. "Rulers come and go; governments end and forms of government change; but sovereignty survives." In the realm of foreign relations, the authority of the federal government therefore equaled that of any sovereign nation, and the usual constitutional divisions between the President and Congress were largely irrelevant, as was the normal prohibition on delegation of legislative power. Keenly aware of the need for energy and dispatch in the delicate business of conducting foreign relations, the Framers had endorsed this arrangement, Sutherland claimed, and early statesmen put it into practice. Although dissenting, Justice james c. mcreynolds filed no opinion.

Later characterized as dictum-laden, Sutherland's argument made sense within the constitutional climate of the 1930s and in view of his own commitments. The government, for example, had claimed that the 1934 embargo resolution and proclamation met the straited Panama-Schechter requirement that delegatory legislation specify the findings of fact the President must make before taking the anticipated action. Such an approach ignored the plausible objection that findings involving diplomatic and military imponderables were no firmer than those already disallowed as "opinion" in Schechter. An alternative was simply to rely on judicial precedent and legislative practice regarding delegation in areas cognate to foreign relations. Sutherland did examine earlier embargo, tariff, and kindred measures in which Congress had given latitude to the President, but he did so primarily as a means of showing that his view of external sovereignty had been accepted from the beginning. Neither judicial nor legislative iterations carried the same weight as the original intent and first principles he valued so highly. Perhaps most important, Sutherland himself had broached the external-internal distinction the previous May, in carter v. carter coal company (1936), and had earlier explicated his full theory of sovereignty in his book Constitutional Power and World Affairs (1919).

The real weakness of Sutherland's opinion was its faulty history. Scant evidence exists that the Framers held the extraconstitutional understanding of the foreign relations power he attributed to them. Sutherland also misconstrued many of the earlier episodes and commentaries that, he argued, were informed by his theories of sovereignty and plenary executive authority. Curtiss-Wright nevertheless had timing on its side. It soon provided a base for upholding executive agreements as domestic law in united states v. belmont (1937) and united states v. pink (1942). More broadly, Sutherland's opinion appealed to proponents of an expanded presidential role as the United States acquired global responsibilities, engaged in nuclear diplomacy, fought undeclared wars, and debated the requirements of internal security.

Charles A. Lofgren
(1986)

Bibliography

Levitan, David M. 1946 The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory. Yale Law Journal 55:467–497.

Lofgren, Charles A. 1973 United States v. Curtiss-Wright Export Corporation: An Historical Reassessment. Yale Law Journal 83:1–32.