United States v. Curtiss-Wright Export Corp.

Most conflicts between the legislative and executive branches involve political questions which the Supreme Court lacks the power to resolve. In Curtiss-Wright, however, the dispute did not concern domestic governance but foreign affairs. Writing for the Court, Justice Sutherland stressed that this was not an area governed by express grants of power by the Constitution:

[T]he 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 . . .

Sutherland went on to say that if sovereignty--the power of an independent nation--rested in the federal government, then the executive branch must control relations with foreign sovereigns. Therefore, he reasoned, no express grant in the Constitution of a "foreign affairs" power was necessary to enable the president to act in these matters. In the case of the South American arms embargo, wrote Sutherland, "[W]e are . . . 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."

The breadth of the Court's holding in Curtiss-Wright has been used countless times to justify presidential initiatives in foreign affairs that are presented to Congress only for rubber stamp approval. President Lyndon Johnson, for example, sent half a million American soldiers to fight in Vietnam without Congress having exercised its constitutional power to declare war. This action in part accounted for the passage in 1973 of the War Powers Act over President Richard Nixon's veto. The War Powers Act--which also cited Curtiss-Wright as authority--was intended to curb presidential war making by requiring that the legislative and executive branches reach a collective agreement before committing American troops abroad.

The growth of the power of the presidency in modern times owes much to this landmark decision. Ironically, perhaps, the Court's refusal to cross the boundary into matters of foreign policy itself grows out of the doctrine of separation of powers. Political questions which can be resolved by the political branches of government--Congress and the presidency--have traditionally been considered off limits to judicial intervention.