Chapter 1 Introduction What are the issues of the day?

Constitutional Allocation of Powers

In this court's analysis, who held the domestic powers between the Declaration of Independence and the signing of the Constitution?

Who held the foreign powers during this period?

What does this mean for the transfer of powers in the Constitution?

The Senate Report of 1816

"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.

Is this a Proper Delegation?

The Court's question:

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 the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?

The Sole Organ

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.’’

What are the possible meaning of this formulation?

Does the president get to make all the foreign policy?

Is he just the spokesman for the US?

The Congressional Role in Foreign Policy

How can Congress affect foreign policy?

Can it forbid specific actions?

Did this court think that congress should try to specifically direct the president on foreign affairs?

Why does the court find that this is not an improper delegation of authority case?

Is the Court's discussion of the history of foreign powers just dicta?

Stop for inauguration

The Nature of Foreign and Domestic Powers

The Court presumes that there is a fundamental difference in the types of powers the president needs for foreign and domestic powers

Clearly military actions and threats are different

What about trade and commercial issues?

What about immigration and other human rights issues?

Are domestic problems really just domestic, or do most have international implications?

Are they really simpler than foreign problems?

The Prize Cases, 67 U.S. (2 Black) 635 (1863) - 67

What precipitated this case?

Why didn't the president go to Congress for a declaration of war?

What did the president order?

What is the plaintiff trying to get in this case?

The Legal Background

Where does the law of prize and capture come from?

Jus belli

What is the legal prerequisite to legally seizing ships at a blockade?

Is this a War?

Can the president declare war?

What war powers did the early congress give the president?

What was the president responding to?

Ratification

Did Congress authorize the action once they were back in session?

How does the majority treat this ratification?

Does the majority say that this authorization was necessary?

The Dissent

Assuming that it was necessary, what was the dissent's problem with a post action authorization?

Why does the majority reject this position?

Has this view prevailed?

What does the superfund laws tell us about this?

What did the dissent say was necessary before the president could take this as an emergency action?

How do the dissenters see this action in the absence of a declaration of war?

Note 1 - The Mexican War
Fleming v Page - 1851

President orders seizure of a Mexican port

Does this make it US territory?

What is the president's legal role in directing the seizure?

Military commander or policy maker?

Does the president's seizure of the port make it US territory?

Remember the Halls of Montezuma in the Marine Hymn?

Note 2 - Repealing Invasions
Martin v. Mott - 1813

Congress passes a law saying the president can repel invasions and deal with insurrections.

What does the Court say about who gets to decide if there is an invasion?

Is this decision reviewable in court?

Is this classic agency deference?

Presidential Uses of Military Power - p 72

1. Actions for which congressional authorization was claimed 7

2. Naval self-defense 1

3. Enforcement of law against piracy, no trespass 1

4. Enforcement of law against piracy, technical trespass 7

5. Landings to protect citizens before 1862 13

6. Landings to protect citizens, 1865-1967 56

7. Invasion of foreign or disputed territory, no combat 10

8. Invasion of foreign or disputed territory, combat 10

9. Reprisals against aborigines 9

Continued

10. Other reprisals not authorized by statute 4

11. Minatory demonstrations without combat 6

12. Intervention in Panama 1

13. Protracted occupation of Caribbean states 6

14. Actions anticipating World War II

15. Bombing of Laos 1

16. Korean and Vietnamese Wars 2

17. Miscellaneous 2

How does this ratify Napoleon's assertion that, "Authority belongs to he who uses it?"