UNITED STATES v. CURTISS-WRIGHT EXPORT CORP.
SUPREME COURT OF THE UNITED
STATES
299 U.S. 304; 57 S. Ct. 216
(1936)
OPINION BY: SUTHERLAND
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
On January 27, 1936, an indictment was returned in the
court below, the first count of which charges that appellees, beginning with
the 29th day of May, 1934, conspired to sell in the United States certain arms
of war, namely fifteen machine guns, to Bolivia, a country then engaged in
armed conflict in the Chaco, in violation of the Joint Resolution of
Congress approved May 28, 1934, and the provisions of a proclamation
issued on the same day by the President of the United States pursuant to
authority conferred by § 1 of the resolution. In pursuance of the conspiracy,
the commission of certain overt acts was alleged, details of which need not
be stated. The Joint Resolution (c. 365, 48 Stat. 811) follows:
"Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That if the President
finds that the prohibition of the sale of arms and munitions of war in the
United States to those countries now engaged in armed conflict in the
Chaco may contribute to the reestablishment of peace between those countries,
and if after consultation with the governments of other American Republics and
with their cooperation, as well as that of such other governments as he may
deem necessary, he makes proclamation to that effect, it shall be unlawful to
sell, except under such limitations and exceptions as the President prescribes,
any arms or munitions of war in any place in the United States to the countries
now engaged in that armed conflict, or to any person, company, or association
acting in the interest of either country, until otherwise ordered by the
President or by Congress.
"Sec. 2. Whoever sells any arms or munitions of war in violation of
section 1 shall, on conviction, be punished by a fine not exceeding $ 10,000 or
by imprisonment not exceeding two years, or both."
The President's proclamation (48 Stat. 1744), after reciting the terms
of the Joint Resolution, declares:
"Now, therefore, I, Franklin D. Roosevelt, President of the United States
of America, acting under and by virtue of the authority conferred in me by the
said joint resolution of Congress, do hereby declare and proclaim that I have
found that the prohibition of the sale of arms and munitions of war in the
United States to those countries now engaged in armed conflict in the Chaco may
contribute to the reestablishment of peace between those countries, and that I
have consulted with the governments of other American Republics and have been
assured of the cooperation of such governments as I have deemed necessary as
contemplated by the said joint resolution; and I do hereby admonish all citizens
of the United States and every person to abstain from every violation of
the provisions of the joint resolution above set forth, hereby made applicable
to Bolivia and Paraguay, and I do hereby warn them that all violations of such
provisions will be rigorously prosecuted.
"And I do hereby enjoin upon all officers of the United States charged
with the execution of the laws thereof, the utmost diligence in preventing
violations of the said joint resolution and this my proclamation issued
thereunder, and in bringing to trial and punishment any offenders against the
same.
"And I do hereby delegate to the Secretary of State the power of
prescribing exceptions and limitations
to the application of the said joint resolution of May 28, 1934, as made
effective by this my proclamation issued thereunder."
[1]
First. It is contended that by the Joint Resolution, the going into
effect and continued operation of the resolution was conditioned (a) upon the
President's judgment as to its beneficial effect upon the reestablishment of
peace between the countries engaged in armed conflict in the Chaco; (b) upon
the making of a proclamation, which was left to his unfettered discretion, thus
constituting an attempted substitution of the President's will for that of
Congress; (c) upon the making of a proclamation putting an end to the operation
of the resolution, which again was left
to the President's unfettered discretion; and (d) further, that the extent of
its operation in particular cases was subject to limitation and exception by
the President, controlled by no standard. In each of these particulars,
appellees urge that Congress abdicated its essential functions and delegated
them to the Executive.
Whether, if the Joint Resolution had related solely
to internal affairs it would be open to the challenge that it constituted an unlawful
delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim
of the resolution is to affect a situation entirely external to the
United States, and falling within the category of foreign affairs. The
determination which we are called to make, therefore, is whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a
delegation of the law-making power. In
other words, assuming (but not deciding) that the challenged delegation, if it
were confined to internal affairs, would be invalid, may it nevertheless be
sustained on theground that its exclusive aim is to afford a remedy for a
hurtful condition within foreign territory?
It will contribute to the elucidation of the question if we first consider the
differences between the powers of the federal government in respect of foreign
or external affairs and those in respect of domestic or internal affairs. That
there are differences between them, and that these differences are fundamental,
may not be doubted.
[2]
The two classes of powers are different, both in respect of their origin
and their nature. 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. In that field, the primary purpose of the
Constitution was to carve from the general mass of legislative powers then
possessed by the states such portions as it was thought desirable to vest
in the federal government, leaving those not included in the enumeration still
in the states. That this doctrine applies only to powers which the states
had, is self evident. And since the states severally never possessed
international powers, such powers could not have been carved from the mass of
state powers but obviously were transmitted to the United States from some
other source. During the colonial period, those powers were possessed
exclusively by and were entirely under the control of the Crown. By the
Declaration of Independence, "the Representatives of the United States of
America" declared the United [not the several] Colonies to be free and
independent states, and as such to have "full Power to levy War, conclude
Peace, contract Alliances, establish Commerce and to do all other Acts and Things
which Independent States may of right do."
[3]
As a result of the separation from Great Britain by the colonies acting as a
unit, the powers of external sovereignty passed from the Crown not to the
colonies severally, but to the colonies in their collective and corporate
capacity as the United States of America. Even before the Declaration, the
colonies were a unit in foreign affairs, acting through a common agency --
namely the Continental Congress, composed of delegates from the thirteen
colonies. That agency exercised the powers of war and peace, raised an army,
created a navy, and finally adopted the Declaration of Independence. Rulers come
and go; governments end and forms of government change; but sovereignty
survives. A political society cannot endure without a supreme will
somewhere. Sovereignty is never held in suspense. When, therefore, the external
sovereignty of Great Britain in respect of the colonies ceased, it immediately
passed to the Union. See Penhallow v. Doane, 3 Dall. 54,
80-81. That fact was given practical application almost at once. The treaty of
peace, made on September 23, 1783, was concluded between his Brittanic Majesty
and the "United States of America." 8 Stat. -- European Treaties --
80.
The Union existed
before the Constitution, which was ordained and established among other things
to form "a more perfect Union." Prior to that event, it is clear that
the Union, declared by the Articles of Confederation to be
"perpetual," was the sole possessor of external sovereignty and in
the Union it remained without change save in so far as the Constitution in
express terms qualified its exercise. The Framers' Convention was called and
exerted its powers upon the irrefutable postulate that though the states were
several their people in respect of foreign affairs were one. In that
convention, the entire absence of state power to deal with those affairs was
thus forcefully stated by Rufus King:
"The states were not 'sovereigns' in the sense contended for by some. They
did not possess the peculiar features of sovereignty, -- they could not make
war, nor peace, nor alliances, nor treaties. Considering them as political
beings, they were dumb, for they could not speak to any foreign sovereign
whatever. They were deaf, for they could not hear any propositions from
such sovereign. They had not even the organs or faculties of defence or
offence, for they could not of themselves raise troops, or equip vessels, for
war." 5 Elliott's Debates 212. n1
[5]
It results that the investment of the federal government with the powers of
external sovereignty did not depend upon the affirmative grants of the
Constitution. 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 vested in the
federal government as necessary concomitants of nationality. Neither the
Constitution nor the laws passed in pursuance of it have any force in foreign territory
unless in respect of our own citizens … and operations of the nation in such
territory must be governed by treaties, international understandings and
compacts, and the principles of international law. As a member of the family of
nations, the right and power of the United States in that field are equal to
the right and power of the other members of the international family.
Otherwise, the United States is not completely sovereign. The power to
acquire territory by discovery and occupation, the power to expel undesirable),
the power to make such international agreements as do not constitute treaties
in the constitutional sense, Crandall,
Treaties, Their Making and Enforcement, 2d ed., p. 102 and note 1), none of
which is expressly affirmed by the Constitution, nevertheless exist as
inherently inseparable from the conception of nationality. This the court
recognized, and in each of the cases cited found the warrant for its
conclusions not in the provisions of the Constitution, but in the law of
nations.
[6]
Not only, as we have shown, is the
federal power over external affairs in origin and essential character
different from that over internal affairs, but participation in the exercise of
the power is significantly limited. 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. He makes treaties with
the advice and consent of the Senate; but he alone negotiates. Into the field
of negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, "The President is the
sole organ of the nation in its external relations, and its sole
representative with foreign nations."
Annals, 6th Cong., col. 613. The Senate Committee on Foreign Relations at a
very early day in our history (February 15, 1816), reported to the Senate,
among other things, as follows:
" The President is the constitutional representative of the United States
with regard to foreign nations. He manages our concerns with foreign nations
and must necessarily be most competent to determine when, how, and upon what
subjects negotiation may be urged with the greatest prospect of success. For
his conduct he is responsible to the Constitution. The committee consider this
responsibility the surest pledge for the faithful discharge of his duty. They
think the interference of the Senate in the direction of foreign negotiations
calculated to diminish that responsibility and thereby to impair the best
security for the national safety. The nature of transactions with foreign
nations, moreover, requires caution and unity of design, and their success
frequently depends on secrecy and dispatch.
" U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p.
24.
It is important to bear in mind that we are here
dealing not alone with an authority vested in the President by an exertion of legislative power, but with such
an authority plus the very delicate, plenary and exclusive power of the
President as the sole organ of the federal government in the field of
international relations -- a
power which does not require as a basis for its exercise an act of Congress,
but which, of course, like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It is quite
apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory
restriction which would not be admissible were domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents
in the form of diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the premature
disclosure of it productive of harmful results. Indeed, so clearly is this true
that the first President refused to accede to a request to lay before the House
of Representatives the instructions, correspondence and documents relating to
the negotiation of the Jay Treaty -- a refusal the wisdom of which was
recognized by the House itself and has never since been doubted. In his reply
to the request, President Washington said:
"The nature of foreign negotiations requires caution, and their success
must often depend on secrecy; and even when brought to a conclusion a full
disclosure of all the measures, demands, or eventual concessions which may have
been proposed or contemplated would be extremely impolitic; for this might have
a pernicious influence on future negotiations, or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The
necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the
Senate, the principle on which that body was formed confining it to a small
number of members. To admit, then, a right in the House of Representatives to
demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous
precedent." 1 Messages and Papers of the Presidents, p. 194.
The marked difference between foreign affairs and domestic affairs in
this respect is recognized by both houses of Congress in the very form of their
requisitions for information from the executive departments. In the case of
every department except the Department of State, the resolution directs
the official to furnish the information. In the case of the State Department,
dealing with foreign affairs, the President is requested to furnish
the information "if not incompatible with the public interest." A
statement that to furnish the information is not compatible with the public
interest rarely, if ever, is questioned.
When the President is to be authorized by legislation to act in respect of a
matter intended to affect a situation in foreign territory, the legislator
properly bears in mind the important consideration that the form of the
President's action -- or, indeed, whether he shall act at all -- may well
depend, among other things, upon the nature of the confidential information
which he has or may thereafter receive, or upon the effect which his
action may have upon our foreign relations. This consideration, in connection
with what we have already said on the subject, discloses the unwisdom of
requiring Congress in this field of
governmental power to lay down narrowly definite standards by which the
President is to be governed.
In the light of the foregoing observations, it is
evident that this court should not be in haste to apply a general rule
which will have the effect of condemning legislation like that under review as
constituting an unlawful delegation of legislative power. The
principles which justify such legislation find overwhelming support in the unbroken
legislative practice which has prevailed almost from the inception of the
national government to the present day.
……………………………………
The judgment of
the court below must be reversed and the cause remanded for further proceedings
in accordance with the foregoing opinion.
Reversed