Article 2, Section 1, Clause 1 — The Presidents Foreign Affairs Power Curtiss Wright And Zivotofsky

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Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

The extent of the President’s foreign affairs power has been subject to debate since the earliest days of the Republic.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn1art2 " See . ") The Constitution provides that the President “shall receive Ambassadors and other public Ministers.” [2](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn2art2 " U.S. Const. art. II, § 3, cl. 2. See . ") In his Commentaries on the Constitution of the United States, Justice Joseph Story noted, “If the executive receives an ambassador, or other minister, as the representative of a new nation . . . it is an acknowledgment of the sovereign authority de facto of such new nation or party.” [3](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn3art2 " 3 Joseph Story, Commentaries on the Constitution of the United States § 1560 (1833). ") In addition, Article II provides that the President, with the advice and consent of the Senate, shall “make Treaties” and “shall appoint Ambassadors” and “other public Ministers and consuls.” [4](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn4art2 " U.S. Const. art. II, § 2, cl. 2. See . ")

Writing for the Court in the 1936 United States v. Curtiss-Wright Export Corp. decision,[5](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn5art2 " 299 U.S. 304 (1936). ") Justice George Sutherland reasoned that the the President “has the sole power to negotiate treaties,” [6](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn6art2 " Zivotofsky v. Kerry, 576 U.S. 1, 13 (2014). ") although the President requires the Senate’s advice and consent to complete them.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn7art2 " See . ") In Curtiss-Wright, the Curtiss-Wright Export Corp. challenged an embargo President Franklin D. Roosevelt had imposed pursuant to a congressional delegation. Indicted for violating the embargo, Curtiss-Wright argued that Congress had impermissibly delegated a legislative power to the President when it granted the President power to impose the embargo. Writing for a 7-1 majority in favor of the government, Justice Sutherland posited that the National Government’s power in foreign relations is inherent. Consequently, the limits on Congress’s ability to delegate power relating to domestic areas, Justice Sutherland reasoned, did not apply in the area of foreign affairs. Justice Sutherland stated:

The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. . . . As a result of the separation from Great Britain . . . . the powers of external sovereignty passed from the Crown . . . to the colonies in their collective and corporate capacity as the United States of America . . . . The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the Federal Government as necessary concomitants of nationality. . . . In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn8art2 " 299 U.S. at 315–16, 318, 319. ")

Notwithstanding Curtiss-Wright, the Court has recognized that the President may be subject to the delegated powers doctrine in matters implicating foreign relations.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn9art2 " E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Harlan Stone); Reid v. Covert, 354 U.S. 1, 5–6 (1957) (plurality opinion, per Justice Black). ") For instance, in Kent v. Dulles,[10](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn10art2 " 357 U.S. 116, 129 (1958). ") the Court held that the standards that apply to congressional delegations to the President of domestic authorities likewise applied to a congressional delegation to the President of authority to issue passports.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn11art2 " Id. See also Haig v. Agee, 453 U.S. 280 (1981). For Haig’s reliance on Curtiss-Wright, see id. at 291, 293–94 & n.24, 307–08. But see Dames & Moore v. Regan, 453 U.S. 654, 659–62 (1981). Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director’s dismissal of employee), with Dep’t of the Navy v. Egan, 484 U.S. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President’s inherent power to protect information without any explicit legislative grant). In Loving v. United States, 517 U.S. 748 (1996), the Court found that, although Congress had delegated authority over the death penalty provisions of military law to the President absent standards to guide the President’s exercise of the authority, standards were not required because the President, as Commander in Chief had responsibility to superintend the military and Congress and the President had interlinked authorities with respect to the military. Where the entity exercising delegated authority possesses independent authority over the subject matter, the Court noted, familiar limitations on delegation do not apply. Id. at 771–74. ")

The Supreme Court’s decision in Zivotofsky v. Kerry appears to be the first instance in which the Court held that an act of Congress unconstitutionally infringed upon a foreign affairs power of the President.[12](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn12art2 " Zivotofsky v. Kerry, 576 U.S. 1 (2015). It appears that in every prior instance where the Supreme Court considered executive action in the field of foreign affairs that conflicted with the requirements of a federal statute, the Court had ruled the executive action invalid. See id. at 62 (Roberts, C.J., dissenting) ( “For our first 225 years, no President prevailed when contradicting a statute in the field of foreign affairs.” ); Medellin v. Texas, 552 U.S. 491 (2008) (President could not direct state courts to reconsider cases barred from further review by state and federal procedural rules in order to implement requirements flowing from a ratified U.S. treaty that was not self-executing, as legislative authorization from Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v. Barreme, 6 U.S. (2 Cranch.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized such seizures). ") The case concerned a legislative enactment requiring the Secretary of State to identity a Jerusalem-born U.S. citizen’s place of birth as “Israel” on his passport if requested by the citizen or his legal guardian.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn13art2 " Foreign Relations Authorization Act, Fiscal Year 2003, Pub L. No.

, § 214(d), 116 Stat. 1350, 1366 (2002) (codified as amended at 7 U.S.C. § 1765d-1). ")

107-228

, § 214(d), 116 Stat. 1350 , 1366 (2002) (codified as amended at 7 U.S.C. § 1765d-1). The State Department had declined to follow this statutory command, citing long-standing executive policy of declining to recognize any country’s sovereignty over the city of Jerusalem.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn14art2 " Zivotofsky, at 6–7. The State Department’s Foreign Affairs Manual generally provides that in issuing passports to U.S. citizens born abroad, the passport shall identify the country presently exercising sovereignty over the citizen’s birth location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides that employees should “write JERUSALEM as the place of birth in the passport. Do not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.” Id. at § 1360 Appendix D. ") It argued the statute impermissibly intruded upon the President’s constitutional authority over the recognition of foreign nations and their territorial bounds, and attempted to compel “the President to contradict his recognition position regarding Jerusalem in official communications with foreign sovereigns.” [15](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn15art2 " Zivotofsky, 576 U.S. at 11–12 (quoting Brief from Respondent at 48). ")

The Zivotofsky Court evaluated the State Department’s non-adherence to a statutory command using the framework established by Justice Robert Jackson’s concurring opinion in Youngstown, under which executive action taken in contravention of a legislative enactment will only be sustained if the President’s asserted power is both “exclusive” and “conclusive” on the matter.[16](https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-1/the-presidents-foreign-affairs-power-curtiss-wright-and-zivotofsky#fn16art2 " Id. at 10 (quoting Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring)). ") The Constitution does not specifically identify the recogni