I. Introduction: Early Constitutional Debates

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foreign relations outline, spring 2005

i. introduction: early constitutional debates

a. purposes of the constitution

• to make it clear colonists intended to be independent; no respect abroad (fed no 15 - hamilton)

• articles of confederation inadequate: weak confederation: (a) congress has no power of coercion over states (almost all decisions require 9/13 states), (b) amendments could be blocked by one vote, (c) no executive branch, (d) no way to raise revenue, (e) couldn't bargain effectively with other nations b/c agreements wouldn't be enforced, (f) couldn't develop unified commercial policy (fed no 41 - madison), (g) couldn't maintain effective military or naval force (fed no 41 - madison)

• create an executive so could (a) act speedily, (b) no question about authority, (c) secrecy of international affairs

• create power of national government: (a) commerce, (b) taxes, (c) raise/support navy, (d) power to punish citizens

b. role of foreign relations in the text

• take it away from the states and give it to the federal government

• constitution unclear about division of foreign affairs powers

• some provisions explicit, indicating clear intent for SOP:

• president: commander-in-chief

• congress: declare war, raise revenue, treaties (senate)

ii. separation of powers

a. enumerated powers theory of constitutional law (madisonian)

• principle: the constitution provides an exhaustive list of the president's powers; anything not in article ii is not within his power

• for example, it is unlawful for the president to suspend the writ of habeas corpus; he has a duty under art ii, sec 3 to ensure the laws are faithfully executed, and the habeas suspension is specifically delegated to the legislature in art 1, sec 9 (ex parte merryman)

• similarly, the president's authority to declare neutrality unilaterally has been rejected since washington tried it during the french revolution

• during american revolution, u.s. had treaties with france promising to protect their possessions in the americas, allow french warships and privateers to bring prizes into u.s. ports, disallows use by france's enemies of u.s. ports to outfit privateers and sell prizes

• french revolution begins in 1789: washington proclaims neutrality, with two principal provisions: (a) u.s. won't protect people helping france, (b) u.s. will prosecute people who help france

• legality of (b):

• c-in-c argument (art ii, sec 2): army needs to know if sees american vessel and british merchant ship; counterarg: only when we're at war, and congress has that power (madison); counterarg: he's always the c-in-c

• take care clause (art ii, sec 3): telling eople what the treaty is with france; counterarg: this seems like a pretext, it's the judiciary's responsibility to enforce treaties (madison); counterarg: judiciary won't decide b/c no case or controversy and won't issue advisory opinions

• hamilton's arg: vesting clause in art ii is different, textually; all things not in art ii and iii belong to executive (pacificus no 1); counterarg: if so, why c-in-c? why treaty power? why enumerate anything?

• madison's view: art ii is exhaustive list of powers;

• congress enacts neutrality act in 1794 under commerce power/necessary and proper clause

• analogous to domestic delegated powers theory (carter coal)

b. constitutional sovereignty theory: there are certain powers that inhere in being sovereign

• for example, the power to expel foreigners is incident to sovereignty as an independent nation (chinese exclusion case - prevents return of chinese laborers, fong yue ting - deportation of chinese laborers)

• even under this theory, neutrality proclamation is illegal b/c it is legislating

c. extra-constitutional sovereignty theory: states didn't have foreign affairs powers before independence b/c colonies, so they weren't given any in the constitution; thus, the federal government has foreign affairs power; functionally, this means president will have all the power if u.s. is going to be able to work effectively in foreign relations

• for example, the non-delegation doctrine does not apply to foreign affairs (curtiss-wright - arms sales)

• as another example (thought justified on statutory grounds) is roosevelt's agreement with britain as wwii approached, despite statutes forbidding u.s. to help britain

• curtiss-wright wielded a lot of authority b/c 7-1 decision and written by same justice as carter coal (accepting delegated powers doctrine in domestic situation), but unclear to what extent it applies today

• invoked to justify iran-contra

• invoked to challenge torture statute

d. procedural end-runs around separation of powers

• non-delegation doesn't apply to fr: curtiss-wright

• standing: raines

• concrete injury (raines - LIVA challenge not concrete and cf clinton v. new york - LIVA challenge by NYC OK, jefferson advisory opinions - no injury, campbell - clinton/yugoslavia/wpr)

• not generalized (intellectual emotional political institutional) but rather concrete (physical, economic, aesthetic, reputation, etc)

• fairly traceable to conduct of defendant,

• stake: likely injury will be redressed by favorable decision (goldwater - treaty cancellation, no stake)

• foreign affairs context: if (a) suing private parties and (b) seeking to protect their own interests

• prudential: no third party suits, zone of interests

• political question: baker v. carr (LIVA challenge), goldwater (treaty cancellation), made in u.s.a. foundation (NAFTA/treaty)

• origins in marbury: "questions in their nature political or which are by the constitution and laws submitted to the executive can never be made in this court"; "the province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion"

• factors laid out in baker:

• "textually demonstrable constitutional commitment of the issue to a coordinate political department

• lack of judicially discoverable and manageable standards for resolving it

• impossibility of deciding without initial policy determination of a kind clearly for nonjudicial discretion;

• impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government

• an unusual need for unquestioning adherence to political decision already made

• potentiality of embarrassment from multifarious pronouncements by various departments on one question"

• may have been used to avoid ruling on reconstruction acts as well, so there is some precedent for this

• ripeness:

• ripeness: court will not review an issue prematurely, that is, while an injury is still speculative; alleged harm must be imminent or occurring (dellums - 1990 hostilities in iraq premature; silence interpreted as authorization)

• mootness: requisite personal interest that must exist at commencement of litigation must continue to exist throughout suit, except if capable of repetition and evading review (i.e. roe v. wade)

• jurisdiction (padilla)

• interpretive doctrines:

• deference to executive where statute silent or ambiguous (japan whaling - amendment didn't specify standards for whaling certification); based on chevron step 2

• more general deference to exec (kahlily - citizens of HK)

• no challenge to presidential doctrines (monroe: no interference with the americas, roosevelt corollary - we won't tolerate military european intervention into western hemisphere, even if justified; reagan doctrine - we don't accept as legitimate countries governed by communists; bush doctrine - we'll use pre-emptive strikes against countries that pose security threat) --> unclear where authority comes from, but congress has not challenged; distinguished from neutrality proclamation b/c latter (a) detracted from congress's war-making powers, and (b) created domestic crimes

• when congress has authorized action, president more likely to be exercising powers lawfully (as in curtiss wright); when congress is silent, it's not clear; when congress has spoken against, it's unlikely president is acting constitutionally (all from jackson concurrence in youngstown)

• this may have been altered by dames & moore, where congressional silence is treated as authorization of president's action (dames & moore - iranian claims); might rely more on frankfurter concurrence in youngstown, which relies on history

• 9/11 responses: may be analyzed under jackson opinion; most fall in category 1, some in category 2 (axis of evil - verge of declaring war)

• treaties may regulate subject matter of congressional powers explicitly laid out in constitution (edwards v. carter - treaty transferring american property to panama; art 4, sec 3, cl 2 power to dispose of territory)

• sole executive agreements can create an international obligation (belmont - compact claim settlements; originates in ambassador power)

• act of state doctrine: courts of one country will not judge acts of another government done within its own territory --> see discussion under federalism

• forum non conveniens: some other court might be more convenient; courts have more discretion to dismiss international cases or cases involving international parties if there is a more appropriate location for the case

• treaties may regulate subject matter of congressional powers explicitly laid out in constitution (edwards v. carter - treat transferring american property to panama; art 4, sec 3, cl 2 power to dispose of territory)

e. war powers

• pre-constitution: states had foreign relations powers, sent delegates to europe; but in AofC, congress had all war powers; but those powers did not include raising a standing army, drafting, raising revenue from states

• constitution: textually, congress has most military powers: declare war, grant letters of marque and reprisal, make rules concerning captures, raise/support army, provide/maintain navy, regulate armed forces, call forth militia to execute laws, suppress insurrections and repel invasions, organize/arm/discipline militia (art i, sec 8)

• states prohibited from engaging in war unless invaded or in imminent danger and prohibits them from keeping troops or ships of war during a time of peace without consent of congress (art i, sec 10)

• note "declare" was previously "make", indicating concern for speed; also should be easier to make peace than war

• president has powers, but not explicit, instead in c-in-c, vesting clause, take care clause

• original understanding: presidents can (a) tell troops what to do, after they exist, (b) repel attacks without congressional authorization

• new understanding: congress does not need to declare war formally; it is sufficient for it to issue some kind of authorization (bas - undeclared french war, vietnam, UAMF)

• perfect war: destroys tranquility

• imperfect par: interrupts only some particulars

• new understanding: unless congress speaks as a body, court won't intervene b/c ripeness (dellums); examples of times where president has used force without authorization: korean war, early vietnam, lebanon in 1982, grenada in 1983, air strikes on libya in 1986, invasion of panama in 1989, troops to somalia in 1992-3, bosnia (c-in-c power), kosovo (dismissed on standing; congress voted to appropriate funds; close to silence), dames&moore, dellums)

• if action authorized, president must abide by limits congress puts on authorization (flying fish - if going to west indies, not if coming from) --> might go other way today under c-in-c powers

• president can use unilateral force to protect americans and their property (durand - nicaragua destruction of american property, somalia - OLC opinion troops can protect americans/property)

• war may be ended by treaty, legislation, or presidential proclamation (ludecke v. watkins)

• WPR (basically powerless and unconstitutional unless strong congress willing to refuse appropriations or impeach president): (1) may use force only on (a) declaration of war, (b) specific statutory authorization, (c) national emergency created by attack on u.s., territories, or armed forces; (2) if no declaration of war and armed forces used, must inform house/senate w/48 hours in writing setting forth circumstances, authority, scope/duration; (3) report to congress every 6 months; (4) w/in 60 days must withdraw unless congress (a) declares war or give specific authorization, (b) extends 60-day period, or (c) physically unable to meet as result of attack; (5) may not infer authorization from statutes or treaties unless specifically mentioned; (6) joint resolution can remove if president acts without authorization

• likely there could be constitutional attacks on 60-day limit (might take more than 60 days to repel invasion), inference provisions b/c strips court of interpretive powers, concurrent resolution b/c might violate presentment clause (chadha)

• note: court dodges question in campbell v. clinton (yugoslavia) b/c of standing

• presidents comply but never acknowledge need for WPR to use force; no court has upheld claim under WPR

• joint resolution authorizing use of military force (AUMF; sept 18, 2001)

• provisions: "the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred sept 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism outside the united states by such nations, organizations, or persons"

• collective uses of force

• UN: 5 permanent security council members, with 10 rotating; can call on nations to take nonmilitary measures; if inadequate, can authorize military action as necessary to restore and maintain peace; member states must provide mutual assistance in carrying out measures decided by UNSC

• i.e. truman uses as justification; take care/un treaty, but never ordered, only authorized

• UNSC has never ordered state to use force

• NATO: u.s. has entered into self-defense agreements; armed attack on one or more will be considered attack on all and they will help

f. congressional powers

• congress may regulate foreign commerce, perhaps even more broadly than domestic commerce (butterfield - statute/tea destruction); source in art 1, sec 8, cl 3: "to regulate commerce with foreign nations, and among the several states, and with the indian tribes"

• congress may use its power to define offenses against the law of nations, as found in art 1, sec 8, cl 10 ("to define and punish... offenses against the law of nations"), to forbid counterfeiting of a foreign government's money (arjona), pursuant to its necessary/proper powers (art 1, sec 8, cl 18: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the united states, or in any department or officer thereof")

• power to exclude aliens is inherent in constitution, even if not enumerated (fong yue ting)

g. delegation of authority to international institutions

• almost no cases for the most part

• lots of examples; i.e. ICJ: judges not appointed in accordance with appointments clause; not an agency within art iii; UNSC can commit troops; CWC has inspection agents not appointed by u.s.

h. SOP/foreign affairs theories

• usurpation theory: framers were right to fear monarchical tendencies of president but wrong to think parchment constitution could prevent the tendencies from manifesting themselves and succeeding

• natural evolution: maybe 18th century role was correct but times have changed; there were no icbms, airplanes, radio, telegraph; we could have weak president then but need strong president now; we want an imperial president

• posner's framers goofed theory: they underestimated the importance of a powerful president. maybe they didn't understand. document was departed from almost immediately (washington, adams, jefferson)

i. ways to cabin executive authority to prevent dictatorship

• youngstown approach in jackson concurrence: president can do what he wants, so long as congress agrees; 3 classes of cases: (1) maximum power when congress authorizes (as in curtiss-wright), (2) medium power when congress silent (the twilight zone), (3) minimum power when congress has said president can't act (youngstown - taft-hartley legislative history)

• distinguish between external and internal behavior; be skeptical of mainly domestic exercises of power (chinese exclusion)

• defer to executive during wartime and less otherwise

• defer on some things but not other; i.e. lots of power to conduct war and not declare it; less willing to defer on civil liberties

iii. federalism

a. constitutional provisions

• dominance of national govt in foreign affairs recognized by constitution

• supremacy clause (art vi, cl 2: "this constitution, and the laws of the untied states which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the united states, shall be the supreme law of the land")

• restriction on states wrt foreign affairs (art 1, sec 10: "no state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal; coin money"; "no state shall... lay any imposts or duties on imports or exports"; "no state shall.. enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay"

b. act of state doctrine

• as first enunciated by scotus: courts of one country will not judge acts of another government done within its own territory (underhill - american citizen/venezuela)

• seems only to apply to official acts (kirkpatrick - bribery for contract in nigeria)

• judicial branch will not examine validity of a taking of property within its own territory by a foreign sovereign government, absent a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges a violation of CIL (sabbatino - sugar/cuban expropriation) --> note congress effectively overrules by statute

• part of federal common law with constitutional underpinnings

• exists as exception after eerie and thus pre-empts state law

• exception: courts won't enforce foreign nation's penal/tax laws

• bernstein exception: where executive branch expressly represents that application of act of state doctrine would not advance interests of american foreign policy, courts will not apply it (banco nacional); did not command majority but lower courts still use it as vague deference to state department/executive

• has been applied a lot to human rights cases

c. active pre-emption

• conflict pre-emption: a direct conflict between federal and state law exists, and federal law pre-empts (i.e. you can't comply with both laws)

• obstacle pre-emption: the state law serves as an obstacle to the purposes of the federal law, and is thus pre-empted (hines - penn immigration statute, crosby - burma sanctions); presumption for pre-emption (hines) unless area of state concern (decanas)

• field pre-emption: federal law is so pervasive as to imply no room for states, and federal law is presumed to preclude enforcement of state laws; applies to foreign relations (hines - penn immigration statute)

• note presumption in favor of non-pre-emption when subject of state statute is of traditional state concern (decanas - regulating labor)

• applies with equal force to self-executing treaties (direct conflicts in clark v. allen - personalty ok, realty pre-empted, in re wwii forced labor litigation - treaty eliminates claims)

d. dormant pre-emption

• dormant foreign relations preemption (vaguely based on art ii power over foreign affairs): requires (1) policy (exec agreement, treaty, statute maybe not directly on point), (2) some kind of state law pre-empted by the policy