472law3.doc October 26, 1996 Foreign Relations & Separation of Powers Doctrine, Chapter One Concurrent Power: Little v. Barreme; Youngstown [Steel Case]; Plenary Powers of the President and Congress: Pink; Curtiss Wright; Korematsu I and II. Sources of Constitutional Power: INS v. Chadha Case. Checks & Balances: Passage by two houses (Bicameralism); presentment to the President with option to veto; congressional right of override. Congressional Measures: Bill, Joint Resolution, Concurrent Resolution, Simple Resolution. Section 1: Concurrent Presidential-Congressional Power--Little v. Barreme (page 1), 1804, regarding Flying Fish ship. Because the ship was on a voyage FROM a French port and not TO such port, the ship was not liable to capture on the high seas. Despite the fact that the ship was an American-owned ship and that there were hostilities between the United States and France, the ship was not subject to capture. It was thus not subject to the non-intercourse law. Congress authorized seizure of ships sailing TO French ports only. The President authorized seizure of ships sailing TO or FROM French ports. The courts sided with Congress. Bottom line: Congress has concurrent powers in foreign affairs. The case illustrates the scope of presidential power in face of congressional disapproval. Youngstown Sheet & Tube v. Sawyer [steel seizure case] (Page 6). 1952. Was the President acting within his Constitutional power when he seized the steel mills during the Korean War? No. President Truman acted under the power as Commander in Chief, as if that applied to the country rather than just to the armed forces. And he sought to avoid a catastrophe, by seizing the mills because of a labor-management dispute. Presidential power must stem from the Constitution or from statute. Congress refused to sanction seizure to avert consequences of labor-management disputes. The Constitution does not authorize presidential action to seize private property. Justice Jacksons concurring opinion Page 10-11: When President acts pursuant to an express or implied authorization of congress, the Presidents authority is at its maximum. When President acts in absence or either a congressional grant or denial of authority, the President can only rely on independent powers, but there is a twilight zone of concurrent authority. When President acts against the expressed or implied will of congress, the Presidents power is at its lowest ebb. As Commander in Chief, it is of the armed forces not of the country. The military powers of Commander in Chief do not supersede representative government of internal affairs. Inherent, implied, incidental, plenary, war, emergency are adjectives that spread confusion. Aside from suspension of the writ of habeas corpus during rebellion or invasion, the Constitution has no provision for the exercise of extraordinary authority in crisis. While Congress cannot deprive the President of the command of the Army and Navy, only the Congress can provide him an army or navy to command. By seizing the mills, President engaged in a law-making function reserved for the congress. Law-making power entrusted to congress in good times and in bad times. Section 2: plenary powers of the President and Congress United States versus Pink, 1942: the conduct of foreign relations is committed by the Constitution to the political departments of the federal government. No domestic state can rewrite united states foreign policy to conform to its own domestic policies. United States versus Curtiss-Wright export, 1936: Congress enacted joint resolution authorizing President to ban arms sales if President felt that doing so would further regional peace. At issue is whether the joint resolution is vulnerable to attack under the rule that forbids a delegation of law-making power. Federal government has greater powers in foreign than in domestic affairs. John Marshall: President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. But Congress is prohibited from delegating its legislative power to the President. Bottom line: generalized deference to President in foreign affairs. Dames & Moore versus Regan: the Iran settlement claims accord upheld via the application of the analytical framework of the steel seizure case not Curtiss-Wright. INS versus Chadha: invalidated legislative veto--Congress must adhere to constitutionally-required procedures. Korematsu versus United States, 1944: American citizen of Japanese descent detained during world war II. Legal restrictions that curtail the civil rights of a single racial group are immediately suspect. all persons of Japanese ancestry... . But court upheld exclusion order. Korematsu detained because the united states was at war with japan not because of racial prejudice. Dissenters in Korematsu: Justice Murphy--forced exclusion is based on an assumption of racial guilt as evidenced by commanding generals final report that said that individuals of Japanese descent belong to an enemy race whose racial strains are undiluted. Justice Jackson: Guilt is personal not inheritable. A civil court cannot be made to enforce an order that violates Constitutional limitations even if it is a reasonable exercise of military authority. Korematsu II, 1984: a 1980 act of congress established a commission on wartime relocation and internment of civilians. Commission tasked with reviewing world war II internment. Military necessity failed to justify exclusion and internment. Government had argued in Korematsu I that national security dictated actions against particular classes of persons, and such actions are beyond judicial scrutiny. But court found that it was denied pertinent facts by the government, and held in Korematsu ii that could have the errors of fact correct but there was no attempt to correct any legal errors. Hirabayashi versus united states, national security standard of review: court could not second guess the executive and congress. Rational basis test applied: whether those entrusted with decision-making authority had the facts to make the judgment. National security won out over race. Bottom line: Though Korematsu has limited application as a legal precedent, as history it stands as a caution that it times of war, representative institutions must be vigilant in protecting Constitutional guarantees. Vidal, Lincoln, 1984: Lincoln willing to tradeoff habeas corpus to preserve the union. Section 3: Sources of Constitutional power--issues sometimes fall within gaps of textual provisions. They are interstitial. Which branch of the government has the power to recognize other governments? No provision in the Constitution to determine the answer. INS. Versus Chadha, 1983: congress reserved for a committee of itself the power to veto the attorney generals determination that a person should not be deported. At issue is the presentment clause and bicameralism. Court held that the legislative veto was unconstitutional. Arms Export Control Act: Congress could disapprove by concurrent resolution Presidential proposed arms sales in excess of $25 million. After Chadha, use of concurrent resolution not possible. In 1986, act amended to preclude arms sales when prohibited by joint resolution.