Foreign v. Domestic Affairs, Con Law Final

The Supreme Court of the United States has recognized distinct lines between the domestic and foreign powers of the President and the Congress. In general, the Court tends to check the Congress when statutes enacted exercise power the Court finds to belong to the Executive or Judicial branches. Also, the Court invalidates Congressional statutes when they exceed the Constitutional mandate of legislative power in Article I. The Court’s treatment of key issues of Congressional authority is as follows.

Article I states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Thereby, the Court decided that Congress may not delegate its legislative power to either of the coordinate branches of government, nor to any other institution. However, according to the judgment of Chief Justice Taft, the legislature can request the assistance of other branches of government in the interest of government coordination. “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination” so long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.” (J.W. Hampton, Jr. & Co v. United States, 1928)

Congress is within its Constitutional authority to delegate power in this manner simply because of the dynamic nature of the society of the nation and the ever-evolving status of its technology. Congress could not do its job if it were not permitted to broadly delegate authority under the intelligible principle standard. In order to determine whether a statute appropriately delegates authority according to the intelligible principle standard, the Court must examine the statute for at least three primary factors. First, the Congress must be sufficiently specific and detailed as to the exact authorities delegated. Second, the Congress must charge the recipient institution with specific purpose and goals they must meet in the execution of the grant of authority. Third, the Congress must prescribe a specific mechanism or method with which the institution may execute of the grant of authority. In addition to meeting the requirements of the intelligible principle, the Congress may only delegate authority which it has in itself to delegate. That is to say, the Congress may not bestow authority on any institution which it itself may not constitutionally exercise, even if it meets the intelligible principle standard. (Mistretta v. United States, 1989)

If Congress is to delegate its authority, Congress may not then retain the ability to review and invalidate decisions made by the institution to which they delegated their power unless the delegation is rescinded by the same method of legislative act with which it was first delegated. To alter the delegated authority is, in effect, the same sort of legislative action as was the first delegation of that authority. According to Article I, all legislation must be considered and approved by both chambers of the Congress and signed into law by the President – or passed by a super-majority in the Congress. The Framers considered very carefully the mechanism of enactment of Congressional statute and specifically provided for the bicameral requirement and presentment of the bill to the President. The President’s involvement in the process of lawmaking was included in order to protect the Executive from the Congress and the whole of the people from inappropriate legislation. To remove the president and the bicameral process from the legislative process, as is the case in the legislative veto, is to alter the legislative process beyond the mandate of Constitutional authority. . However useful it may be for the Congress to make unilateral, one-house decisions concerning the use of the power they delegated, usefulness, efficiency, and convenience cannot cause an invalid exercise of Congressional power to become valid. The restrictions placed on the Congress which cause it to seem slow, clumsy, or inefficient were put into place deliberately in order to ensure that arbitrary government action does not go unchecked. (Immigration and Naturalization Services v. Chadha, 1983)

Furthermore, officers to whom the Congress delegates power must not exercise Executive power if the Executive branch does not hold the authority to regulate or remove those officers – if the officer is not a member of the Executive branch. If an officer of the United States is subject only to the authority of Congress, that officer is an employee of the Legislative branch. For the Legislative branch to take unto itself the authority of the Executive branch is to exceed its constitutional mandate of authority. (Bowsher v. Synar, 1986)

The Court tends to be very strict in limiting Presidential power within the borders of the United States to those powers expressly enumerated in Article II and to those powers delegated to the Executive under the intelligible principle standard. The Court is adamant in its interpretation that the President has no unilateral authority to arbitrarily alter the legislative or judicial processes. The Court’s treatment of key issues of Presidential authority is as follows.

Just as the legislature may not arbitrarily alter statute by a simple one-house majority resolution, the President also must conform to the mechanism of legislation as enumerated in Article I of the Constitution. To line-item veto – to strike out individual appropriations within the budget – is, in effect, to repeal portions of congressional statute. The Constitution assigns lawmaking powers to the President to initiate and influence the passage of legislation and to veto or return entire bills to the Congress, but no part of the Constitution authorizes the President to unilaterally enact, amend, or repeal statutes. The difference between a line-item veto and the constitutional veto is significant. A constitutional veto is to return of the entire legislation to the Congress unsigned before it becomes law, and the Congress has the power with a super-majority to override this veto. A line-item veto occurs after the bill has been signed into law and is a cancellation of only part of the bill without allowing the Congress the opportunity to override the alteration. (Clinton v. City of New York, 1998)

The President has sole power to remove Executive branch officials appointed with the advice and consent of the Senate. A legislative check on the removal of officials is a much greater check on Executive authority than is the power to approve or disapprove of the officials’ appointments, and it is a much greater invasion of the Legislature into the sphere of the Executive. The Senate has the power to reject new appointees in order to avoid the appointment of incompetent or incapable men to positions of principal authority in the United States government and, the Senate has ample ability to come to know the suitability of a nominee as well as the President when the nomination is made. However, the President and his subordinates are necessarily better informed about the continuing suitability of an officer of the United States than is the Senate because of his or her service under the President. The officers appointed to the Executive, in their highest duties, act in the name of the President and do his will, not exercising their own judgment, but the judgment of the President. If these officers cease to do the President’s will or he loses complete confidence in their ability, loyalty, or judgment, he must have the ability to remove them at once from their positions. The power of removal is tied to the power of appointment, not to the power of advice and consent to an appointment. (Myers v. United States, 1926) However, those officials who are appointed to quasi-legislative or quasi-judicial roles without any executive power or function are intended to be independent of the Executive and cannot be expected to maintain their independence if they are subject to removal at the whim of the President. It is unquestionable that the maintenance of freedom from coercion or control of one branch of government on the next is necessary and implied by the nature of the separation of powers of co-equal and coordinate branches enumerated in the Constitution. Therefore, the President has no power to arbitrarily remove officials outside of the Executive branch. (Humphrey’s Executor v. United States, 1935)

Concerning the exigency of immediate Executive response to national emergency, if some nation or group makes war on the United States, the President is not only authorized, but required to respond swiftly and decisively without the need to wait for legislative approval. Though Congress declares war, that declaration of war in no way creates the war – the war is created by the hostile act of the foreign nation or domestic insurrection, and as Commander in Chief, the President has the duty to defend the nation against this threat. This power is both domestic and foreign as it applies to the quelling of organized rebellion and to response to international acts of war. (The Prize Cases, 1863)

In regard to wholly foreign affairs, the Court tends to allow the President a much greater leeway. The Court contends that the Constitution does not restrict or proscribe the powers of the Sovereign because the Constitution merely provides for a carving out of powers from among the States for the Federal government. The powers of a sovereign nation, however, were never held by the States, but always by the United States collectively, and the national government has always held the powers of foreign relations. As the sole representative of the United States on the world stage, the President maintains broad powers in the international sphere. The Court’s treatment of the President’s authority in regard to foreign affairs is as follows.

Federal power in external affairs is inherently different in character and origin from domestic powers, and participation in the exercise of these external powers is limited to the Executive. “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 negotiations may be urged with greatest prospect of success. … The nature of transactions with foreign nations … requires caution and unity of design, and their success frequently depends on secrecy and dispatch.” (The Senate Committee on Foreign Relations, 1816) The President has the power to make treaties, and though the Senate must approve those treaties, the President himself has the sole power of negotiation, and the Congress has no power to invade this process. The power of the President to act in the external sphere does not derive from any act of Congress and is in harmony with the provisions of the Constitution. “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers.” (Mackenzie v. Hare, 1915) Therefore, the President may act broadly without fetters of statutory restriction in the case of foreign affairs where he may not be accorded so free an authority in the case of strictly domestic affairs. (United States v. Curtiss-Wright Export Corp, 1936)

In addition to these broad powers as Sovereign, the President has power over the military as Commander in Chief, and this military authority applies to the law of war and to enemy combatants overseas. The President is further authorized by statute to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the 11 September 2001 terrorist attacks. (Authorization for Use of Military Force, 2001) The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” (Ex parte Quirin, 1942) Detention of enemy combatants prevents those combatants from returning to war against the United States, and this is a clearly permitted use of necessary force. There is no bar against the President’s holding a United States citizen as an enemy combatant if that citizen fits the description of a combatant so defined. “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” (Quirin, 1942) The President’s authority in this case, however, is not unlimited. Detention may last no longer than active hostilities, but so long as active hostilities continue, the United States may, for the duration of these hostilities, detain individuals who “[engage] in an armed conflict against the United States.” Unless constitutionally suspended, the writ of habeas corpus remains viable for any and all who are detained within the United States, and it may be suspended only in the rarest of occasions. It is a check on the Executive which ensures individuals are not illegally detained. A system of detention with unchecked power can easily become a tool of oppression and abuse of those who present no threat. Every citizen retains the right to be free from involuntary confinement without due process of law and retains the right to counsel even in cases concerning enemy combatant status. A citizen who wishes to challenge his status as an enemy combatant must be informed of the factual basis of the claim against him and a fair opportunity to rebut the government’s claims before a neutral arbiter. However, there is no Constitutional provision against a prejudice in favor of the Government’s evidence against an enemy combatant so long as that individual was given the opportunity to rebut the Government’s claim, albeit with more persuasive evidence than was provided by the Government. This process will have no great effect on the Executive’s capacity to wage war. (Hamdi v. Rumsfeld, 2004)

In regard to Constitutional approach, the Court differs greatly between domestic and foreign affairs questions. The Court requires strict adherence to Constitutional standards, especially for the Executive, whose powers are not so greatly widened with a necessary and proper clause, in the case of domestic affairs. The Court does not allow, in general, for exigencies, conveniences, or efficiencies to override Constitutional mandates or statute except in such times of conflict or war when the President must act swiftly and decisively in a situation where timeliness is of the essence of the interests of the United States. The Framers wrote the Constitution in order to create a slow-moving government with coordinate branches, each checking the others’ powers in order to prevent quick, arbitrary action by one power. However, these checks apply only to domestic actions. In regard to foreign affairs, the Sovereign does not derive its power from the Constitution, rather merely from the United States’ status as a sovereign nation. In this arena, the Sovereign is checked not by the power of a written Constitution, but by international law and the law of war.

The line between foreign and domestic affairs is this. Those situations involving action within the borders of the United States concerning United States entities, citizens, and domestic states are domestic affairs. These domestic affairs are governed strictly by the Constitution, and statute and executive action must be aligned within these provisions. Those affairs concerning the United States’ relations with foreign nations and its regulation of United States entities’ relations with those foreign nations are foreign affairs. These foreign affairs are largely the realm of the President as sovereign of the nation, and Congress has little power to interfere in their execution. Few checks are provided in the Constitution against Presidential foreign policy powers. The line between the Executive and the Legislature is this. All legislative power is vested in the Congress, and the Congress may not delegate that power except under the intelligible principle standard. The Congress and its officers also may not wield any executive – or enforcing – power. The Executive has authority over its own officers and procedures, but must follow and enforce Congressional statute.

The Constitution provides the Court with ample division and separation between the powers of branches, and the sovereign status of the United States, the Constitution, Congressional statute, and international law provide the Court with even stronger separation between domestic and foreign affairs.

The previous is a take-home examination for GOVT 3322 at the University of Texas at Dallas, and the material is my interpretation of case briefs contained in the text.

Epstein, Lee and Thomas G. Walker. Constitutional Law for a Changing America, Institutional

Powers and Constraints - Sixth Edition. Washington, DC: CQ Press, 2007