Curtiss-Wright

In 1934, President Franklin D. Roosevelt signed a narrowly tailored joint congressional resolution directed at ending the Chaco War between Paraguay and Bolivia. The resolution authorized the president, under certain conditions, to issue a proclamation making it unlawful to sell arms in the United States to either country, and Roosevelt promptly declared the conditions met and issued the requisite proclamation. Subsequently, the government brought a criminal prosecution against the Curtiss-Wright Export Corporation for violating the proclamation by selling fifteen machine guns to Bolivia. The trial court dismissed the indictment on the ground that the resolution constituted “an invalid delegation of legislative power.”Footnote ⁵

Congress had been delegating authority to the executive since the 1790s, and in the late nineteenth century its delegations grew broader and more general. In 1928, Chief Justice William Howard Taft synthesized a diffuse body of precedents and announced a flexible general test: The working relations between the federal branches should be determined in light of “common sense and the inherent necessities of the governmental co-ordination.” A delegation was constitutional, then, as long as “Congress shall lay down by legislative act an intelligible principle” sufficient to guide the executive's exercise of discretion.Footnote ⁶

In spite of challenges over the years, the Court had never—until the New Deal—applied the delegation doctrine to void an act of Congress. In 1935, however, it did so twice. In Panama Refining Co. v. Ryan, it struck down a critical section of the New Deal's National Industrial Recovery Act on the ground that it left the president “without standard or rule” to confine his discretion. Then, in Schechter Poultry Corp. v. United States, it invalidated the rest of the act for conferring “virtually unfettered” discretion to enact “laws for the government of trade and industry throughout the country.” What the act referred to as a finding of “fact,” the Court announced, was “really but a statement of an opinion as to the act's general effect upon the promotion of trade or industry.”Footnote ⁷

Under those two decisions, the congressional resolution in Curtiss-Wright appeared vulnerable. It authorized the president's proclamation if two conditions precedent were met. The first was that “the president finds” that a prohibition on arms sales “may contribute to the reestablishment of peace” between the warring countries. The second was that “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.” The president's proclamation recited the terms of the resolution and announced that the specified “finding” had been made and that the other requisite actions had taken place. It then declared in force the criminal sanctions that the resolution specified.Footnote ⁸

Relying primarily on Schechter, the trial court ruled that Congress had not authorized the president to act on the basis of a “true” finding of “fact.” Rather, it authorized the proclamation on the basis of “an opinion or forecast.”Footnote ⁹ Thus, the resolution lacked “an intelligible principle” to which the executive was required to conform and was, consequently, unconstitutional.

On direct appeal to the Supreme Court, the parties concentrated on the delegation issue. The government rejected the trial court's distinction between facts and forecasts, cited numerous cases upholding statutes that delegated authority requiring judgments about future events, and argued that the “only test” of constitutionality was whether a delegation constrained the executive's “free and arbitrary discretion.” It did not stress the foreign relations context but emphasized only that facts relating to the sale of arms to a foreign government were “peculiarly available to the President.” Responding, defendants countered that the resolution gave the president “unfettered discretion” and pointed out that, regardless of any “findings,” it did not require him to take any action whatever. They insisted, moreover, that the delegation doctrine made “no distinction” between congressional acts governing domestic matters and “legislation which may affect our foreign relations.”Footnote ¹⁰

Writing for the Court, Sutherland took a radically different path than either the government or the defendants had proposed. Drawing on his extensive pre-Court writings, he began by stressing two broad sovereignty-based principles. First, in “external” affairs—those dealing with foreign relations—the national government was sovereign and, therefore, held complete and exclusive power. Its “external” powers were different from its “internal” powers “both in respect of their origin and their nature.” In “internal” matters, the national government shared power with the states, and its powers were delegated and sharply limited; in “external” matters, however, the national government possessed all power, while the states had none. Second, the “external” powers of the national government were not limited to its delegated powers but existed independent of the Constitution “as necessary concomitants of nationality” inherent in the nature of sovereignty under the law of nations. The “investment of the federal government with the powers of external sovereignty,” Sutherland declared, “did not depend upon the affirmative grants of the Constitution.”Footnote ¹¹

Whereas Sutherland's discussion of those two sovereignty-based principles came directly from his earlier writings, his subsequent comments on executive power—and his emphasis on its independence and exclusivity—did not. International relations presented “important, complicated, delicate and manifold problems,” he announced, and the president was the dominant authority and “alone has the power to speak or listen as a representative of the nation.” The executive “alone” held the power to negotiate treaties, and “Congress itself is powerless to invade it.” Any “participation in the exercise of the [executive's] power is significantly limited.” Then, turning to the case at hand, he explained 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.” That exclusive executive foreign affairs power, he stressed, “does not require as a basis for its exercise an act of Congress.”Footnote ¹²

Sutherland concluded that a different standard applied to delegations in “external” matters. If “serious embarrassment” was to be avoided in “the maintenance of our international relations,” Congress “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.” Practical considerations, he added, also counseled greater flexibility in foreign affairs, for the executive had “confidential sources of information” and other practical advantages that gave him “the better opportunity of knowing the conditions that prevail in foreign countries, and especially is this true in time of war.”Footnote ¹³

Sutherland then sought to provide further support for the congressional resolution by adding an extended discussion of “the unbroken legislative practice” of delegating authority to the executive in conducting the nation's foreign relations. Although such an established practice did not necessarily prove the constitutionality of those delegations, it “must be given unusual weight in the process of reaching a correct determination.” The weight of the practice, he concluded, demonstrated that the delegation at issue in Curtiss-Wright was proper. The “uniform, long-continued and undisputed legislative practice just disclosed rests upon an admissible view of the Constitution” that the Court “should not feel at liberty at this late day to disturb.”Footnote ¹⁴ With that, Sutherland upheld the delegation, sanctioned the government's prosecution, and reversed the judgment below.

Aside from his dubious sovereignty-based principles, two aspects of Sutherland's opinion were especially puzzling. One was that it did not simply track his long-established views on foreign affairs law but revised them in a critical way. In his 1910 article on “The Internal and External Powers of the National Government,” he did not distinguish between Congressional and executive powers but maintained only that “external” foreign affairs powers belonged exclusively to the “national” government. In 1919, when he did address the allocation of external powers in his book Constitutional Power and World Affairs, he emphasized that Congress and the executive shared those powers and that their roles were “co-ordinate.” Discussing the treaty power in his book, for example, Sutherland gave an equal and comprehensive scope to the authority of the Senate and highlighted its right “to participate in the making of treaties at any stage of the process.” In contrast, in Curtiss-Wright he emphasized that the executive “alone” negotiated treaties. “Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” Similarly, in 1919, when he discussed the “inherent” and “sovereign” powers of “the general government,” he noted repeatedly that it was Congress—not the executive—that exercised those powers. In addressing war powers, for example, he emphasized that the “authority of the President” was “wholly dependent upon the action of Congress,” that only Congress could suspend the writ of habeas corpus, and that all domestic arrangements considered necessary remained “under the direction of Congress.” In contrast, in Curtiss-Wright, he argued that the executive possessed certain inherent foreign affairs powers that were “plenary and exclusive” and that could be exercised free of any need for congressional authorization.Footnote ¹⁵

Most arresting was that his book warned against a dangerous growth in the “potency and influence” of the executive, a growth that was “never dreamed of by those who framed and adopted the Constitution.” It protested that “Congress has been subjected to such a degree of executive domination as to threaten the stability of the principle of departmental independence involved in the distribution of the several powers among the three branches of government.” Fearful that the American people were “coming to regard [the President] as the sole repository of their power,” Sutherland repudiated that view. “[V]ery decidedly, he is not.”Footnote ¹⁶ Thus, whereas he drew on his long-held views about sovereignty and the “national” nature of foreign affairs powers in Curtiss-Wright, he also altered those views substantially, expanding the scope of executive power and declaring some of those powers exclusive to the executive and independent of Congress.

The second striking feature of Sutherland's opinion was the unnecessary nature of that language about “plenary and exclusive” executive foreign affairs power. Because Congress had authorized the president's action, there was no need to discuss any such independent or exclusive power. Sutherland could have rested soundly on either of two narrow grounds. First, he could have held that the tightly circumscribed scope of the delegation and its clear and specific purpose brought it within the established “intelligible principle” rule.Footnote ¹⁷ Second, he could have relied upon the “uniform, long-continued and undisputed legislative practice” that he discussed at length. His opinion declared that the Court should not declare delegations unconstitutional unless “beyond all rational doubt it finds them to be so” and, further, that the “impressive array of legislation” that the Court had approved over the past century and a half “must be given unusual weight.”Footnote ¹⁸ Under those two combined standards—that unconstitutionality must be clear “beyond all rational doubt” and that prior practice “must be given unusual weight”—Sutherland could easily have held that long-accepted practice constituted a “sufficient warrant” for upholding the delegation.

Why Sutherland disregarded those narrow grounds is a matter of speculation. An almost certain, though only partial, explanation is that the justices were sharply divided on the delegation issue. Cardozo and, to a lesser extent, Brandeis, were opposed to a highly restrictive doctrine as a general matter, while Hughes and Roberts were opposed to a restrictive doctrine in the case at hand. The Court's conservatives, conversely, were determined to enforce a relatively rigid delegation doctrine. Therefore, to secure a healthy majority that bridged divisions among the justices, the Court's opinion needed a broader ground for its decision, and Sutherland's “internal/external” dichotomy served that purpose. It allowed the Court to adopt a relatively loose delegation standard that was acceptable to Hughes, Roberts, Cardozo, and Brandeis, while confining the standard's application to “external” affairs to satisfy Sutherland, Van Devanter, and Butler.Footnote ¹⁹

If such a compromise explained both the Court's rejection of the available narrow grounds and its acceptance of Sutherland's broad “internal/external” dichotomy, it did not explain why the Court also adopted the additional and unnecessary language about “plenary and exclusive” executive power.Footnote ²⁰ Earlier in the year, the Court had twice refused to accept a doctrine of independent executive foreign affairs power. It is most striking that in February a unanimous bench refused to address the scope of independent executive authority in foreign affairs and relied instead upon the fact that the president had acted under the authority of a congressional statute, exactly the situation that Curtiss-Wright presented.Footnote ²¹

Why, then, did the Court abruptly address the issue that it had avoided earlier in the year? Why did it do so when addressing that issue was unnecessary to its decision? Why did it do so when its executive power language relied on authorities that were thin and tangential, if not simply irrelevant?Footnote ²² Why was Sutherland willing to change his own long-held views on foreign affairs powers in order to assert the “plenary and exclusive” nature of the executive's power? Why did Brandeis join an opinion that contained such unnecessary constitutional language and affirmed the existence of the kind of independent—and, therefore, unchecked—executive power that he so consistently opposed? Why did seven of eight sitting justices agree to accept such potentially broad and significant language that was both novel and unnecessary?

1936: Politics and Foreign Policy

Initially, Curtiss-Wright's emphasis on the president's “plenary and exclusive power” in foreign affairs might seem an understandable response to the ominous world situation that confronted the United States. World War I brought the Bolshevik revolution in Russia, the threat of an international communist-inspired revolutionary movement, and a vastly more active role for the United States in world politics, commerce, and finance. The following years unleashed a mounting series of new and unnerving challenges: the rise of Fascism in Italy and elsewhere, a catastrophic worldwide depression, Japanese aggression and conquest in Asia, the triumph of Nazism in Germany, the Italian invasion of Ethiopia, and German rearmament and avowed expansionism. Then, in 1936—as Curtiss-Wright made its way to the Court—came Japan's withdrawal from the London Naval Conference and its rapid expansion of the Imperial Navy, the German occupation and remilitarization of the Rhineland, the outbreak of the Spanish Civil War, German and Italian recognition of the Spanish Fascist government, and the announcement of the Rome–Berlin Axis alliance. Finally, one week after the oral argument, while the case was sub judice, Germany and Japan announced that they had signed an anti-Comintern pact directed at the Soviet Union.Footnote ²³ The resulting fears of another and far more destructive world war stretching across Europe and Asia could have made the need for strong executive leadership in foreign affairs seem undeniable.

Such an understanding, however, would be incomplete at best, if not essentially mistaken, because most Americans simply did not draw that conclusion. To the contrary, they seemed to reject it and to exhibit a growing distrust of executive power and discretion in foreign affairs. Therefore, the Court's language about “plenary and exclusive” executive power was not only novel and unnecessary, but it also promised to be highly unpopular and widely controverted. Clearly, Curtiss-Wright was not simply an unavoidable or consensus response to the foreign challenges that confronted the nation.

The 1930s witnessed a fiercely contested national debate over American foreign policy. At political center stage an unusually assertive, if internally divided, Congress deeply suspicious of executive discretion in foreign affairs squared off against a powerful president who sought to assert and, if possible, expand that discretion.Footnote ²⁴ Both sides were committed to keeping the country out of war, but they disagreed radically on the way to do so.

“Neutralists” and “isolationists” feared executive power and discretion. Acutely suspicious of international bankers and arms manufacturers, and convinced that foreign entanglements could drag America into a new war, they were animated above all by memories of President Woodrow Wilson's role in leading the country into “the Great War” despite his much-heralded promises to the contrary. Some were also driven with special fervor by a rabid distrust of Roosevelt himself, warning angrily that he was—like Hitler and Mussolini—seeking dictatorial powers and even planning secretly to lead the nation into war. While a few insisted on clinging to the letter of international law and maintaining “neutral” commercial relations with all belligerents, the great majority—citing Wilson's fatal insistence on upholding America's rights as a neutral—advocated legislation limiting or prohibiting commerce with belligerents as the only way to keep the country out of war.Footnote ²⁵

In contrast, Roosevelt and his supporters—“internationalists” and “interventionists”—believed that executive discretion was essential. Inspired by a broader internationalism, a growing awareness of the threat posed by Nazism and Fascism, and a faith in Wilsonian principles of collective security, they believed that effective cooperation among nations offered the best hope of preserving world peace, thereby keeping America out of future wars. Consequently, they argued that the president needed flexibility to meet changing international threats and that any congressional limitation on American commerce should allow the president discretionary authority to use the nation's economic power in combination with other nations to deter potential “aggressors.” If the feared war did come, many or most also believed mandatory embargo laws would work in favor of Nazi Germany and Fascist Italy. They would disadvantage smaller and unprepared nations victimized by attack, and prevent Britain from taking full advantage of its naval superiority and maintaining essential wartime trade with the United States.Footnote ²⁶

In the early and mid-1930s, the neutralists and isolationists held the upper hand, and the political balance tilted markedly against the president. In 1934, Congress, led by Republican Senator Hiram Johnson of California, an isolationist and “irreconcilable” opponent of the League of Nations, restricted the nation's financial involvement with Europe by prohibiting private loans to countries that defaulted on their World War I debt obligations, and the following January the Senate—reflecting widespread hostility to the League and sharpening anti-foreign sentiments—once again rejected American membership in the Permanent Court of International Justice, the so-called “World Court.” The next year, Protestant clergy joined pacifist, women's, and veterans' groups in establishing the antiwar Emergency Peace Campaign, while hundreds of thousands of college students rallied against war on 130 campuses. “Beginning in early 1935,” David M. Kennedy explained, “American isolationism hardened from mere indifference to the outside world into studied, active repudiation of anything that smacked of international political or military engagement.”Footnote ²⁷

Responding to the country's isolationist mood, Congress adopted more direct measures. In August of 1935, it passed a “neutrality act,” prohibiting the export of “arms, ammunition, or implements of war” to all belligerent nations, although leaving some discretion for the president to define “implements of war” and determine when an embargo should go into effect. Six months later, in February 1936, it adopted a second “neutrality act” that tightened the restrictions imposed in the initial legislation and added new ones. The 1936 act prohibited American loans to belligerents, limited the president's discretion in invoking the embargo, denied him authority to limit trade in raw materials, and required him to extend the embargo to any nation that subsequently joined a conflict. By 1936, intensifying antiwar sentiment made popular distrust of national foreign policy so pervasive that 71% of respondents in a Gallup Poll favored a constitutional amendment that would limit the power of Congress by requiring a popular national referendum to approve a declaration of war.Footnote ²⁸

Therefore, although grave foreign policy concerns loomed when the Court heard Curtiss-Wright, those concerns by themselves were insufficient to explain the majority's decision to assert the executive's “plenary and exclusive” power in foreign affairs. That striking declaration of executive power was neither an unavoidable response to foreign threats and the fear of a coming war, nor the consensus product of either congressional or popular opinion. Nor was it legally compelled or necessary to the decision. Curtiss-Wright's executive power language stemmed from other sources, and those sources were within the Court itself.

Hughes

Charles Evans Hughes projected a commanding presence. With great charm, a powerful intellect, rigorous self-discipline, and a vast capacity for work, he carved out a stellar career as a public investigator, governor of New York, associate justice of the Supreme Court, Republican presidential candidate, United States secretary of state, author of multiple books on law and international affairs, senior partner in a leading New York law firm, judge on the Permanent Court of International Justice, and president of New York's Legal Aid Society, the American Bar Association, and the American Society for International law. In 1930, he added appointment as Chief Justice of the United States. He was a man of vast experience, immense personal prestige, and nearly unparalleled professional and political accomplishment. His appearance, moreover, accentuated his achievements. Tall, erect, white-bearded, and stern-looking, he seemed to more than one observer a “Jovian figure.”Footnote ²⁹

By temperament and experience, Hughes was an executive, a person who exercised power repeatedly and in a variety of high offices. He believed firmly in his own judgment, and he strove vigorously to expedite whatever business fell to his care. Especially in foreign affairs, he readily understood the need for executive independence and discretion. A principal inducement that led him to accept the office of secretary of state was President Warren Harding's promise that he would enjoy an essentially free hand to run the department and guide the nation's foreign relations.Footnote ³⁰

As secretary of state from 1921 to 1925, Hughes tried to do just that. He reorganized the State Department, asserted firm control over its activities, and persuaded Congress to make major reforms in the Foreign Service. More dramatic, during his first year in office, he organized the famous Washington Disarmament Conference. There, he prevailed upon the world's major powers to accept substantial limitations on their naval forces and to settle a number of contentious issues involving China and the Far East, an effort that produced three major treaties involving nine of the world's most powerful nations. With that achievement, James Simon wrote, “Hughes emerged as one of the world's leading statesmen.”Footnote ³¹

Constitutionally, Hughes operated on a thoroughly executive-centered theory of foreign affairs law. He insisted on the president's exclusive control over the conduct of foreign policy and on his right to assert privilege against senatorial efforts to obtain confidential communications involving treaty negotiations. Responding to an inquiry from Republican Senator Henry Cabot Lodge, the chair of the Senate Foreign Relations Committee, Hughes insisted on “the right of the Executive, acting through the Secretary of State, to determine the instructions to be given to agents in the exercise of the authority of the Executive in the conduct of foreign affairs.” He was firm and forceful. “The conduct of foreign relations pertains to the executive power,” he insisted. “Practice under the Constitution has abundantly confirmed the initiative of the President in the formulation of foreign policy.” Hughes made it clear, moreover, that he was personally committed to upholding the principle of exclusive executive foreign affairs power. “I should not favor a change in the distribution of power or any modification of practice,” he announced, “which would encourage the notion that the Executive is responsible to the legislative branch of the Government in matters which under the Constitution are exclusively of executive concern.”Footnote ³²

Hughes maintained that Congress properly played only a limited role in foreign affairs. Its powers were limited to specific constitutional grants, and—even more restrictive—those powers imposed a positive duty. Congress, he argued, was obligated to provide funding for the exercise of the executive's constitutional prerogatives.Footnote ³³

Hughes's experience as secretary of state not only confirmed his belief in strong and independent executive leadership in foreign affairs, but it also soured him on the Senate's role in the area. Although he sought to cultivate friendly relations with Congress and enjoyed a number of successes, his tenure was marked by repeated and frustrating battles with a proud Senate leadership determined to assert control over the nation's foreign policy. During the presidential campaign of 1920 Hughes had announced his support for ratifying the Treaty of Versailles with reservations, and as secretary of state he approached ratification as his first major goal. The “irreconcilables” and “strong reservationists” in the Senate blocked his efforts, however, and Hughes was forced to abandon ratification as a lost cause. The same Senate bloc also frustrated his initial plan to bring a formal end to the war with Germany by adopting a revised version of the Treaty of Versailles. The Senate finally agreed to a separate German peace treaty only after Hughes drafted an entirely new document that accepted the controlling language of a congressional resolution and merely cross-referenced provisions of the Treaty that conferred rights on the United States. Worse, the Senate insisted on an additional provision designed to block Hughes's efforts to facilitate American cooperation with the League of Nations. It required that the United States “not be represented or participate in any body, agency, or commission” of the League without congressional approval. Subsequently, the Senate defeated his heartfelt effort to have the United States adopt the convention that established the World Court.Footnote ³⁴

While Congress proved an insurmountable obstacle to some of his principal ambitions, Hughes achieved other critical goals by simply ignoring or eluding its constraints. He avoided the restriction on American participation in League activities by appointing “unofficial” representatives to attend conferences, keep the State Department informed, and spread the views of the United States to League members. More boldly, when the Senate opposed his proposal to establish a commission to settle war claims between Germany and the United States, he invoked the constitutional power of the executive to conclude international agreements without Senate approval and, through a series of diplomatic notes, established the commission solely on the authority of the executive. Similarly, when he sought to resolve the pressing problem of German war reparations by pushing what became the “Dawes Plan,” he established an “independent” committee of financial experts to study the problem and then traveled to Europe to persuade the Allied governments in person to adopt its recommendations. He was subsequently candid about his personal diplomacy. “If I had sought to obtain the consent of Congress to the appointment of a committee officially representing our Government,” he explained, “I should have been involved in a controversy which would have defeated the entire plan.”Footnote ³⁵

Repeatedly, Hughes bridled at what he regarded as congressional willfulness, irresponsibility, and obstructionism. In 1922, he used a commencement address at the University of Michigan to lay out his views. The nation's “instrumentalities of foreign intercourse” have “suffered from too much regard for politicians,” he announced, “and too little attention to the necessity for special aptitude and training.” Those who conducted the nation's foreign affairs were qualified professionals who often possessed “special information available only to officers of the Government.” Urging the public to acquire a broader understanding of foreign countries and, more pointedly, Congress itself to listen more respectfully to the advice of executive officials, Hughes struck at his antagonists. “The chief enemies of peace are those who constantly indulge in the abuse of foreign peoples and their governments, who asperse their motives and visit them with ridicule and insult.” Such enemies might adopt a “pseudo-patriotic spirit,” but their actions were taken “most probably in the interest of local politics.” Such politically inspired actions threatened to defeat “peaceful settlements which are eminently judicious, and which really promote the safety of the country.” Hughes concluded bluntly. “The principal difficulty at this time in our conduct of foreign affairs is not with method, or organization, or aims,” he declared, “but with the untruthful, prejudiced and inflammatory discussions in which some of our citizens and certain portions of the press permit themselves to indulge.”Footnote ³⁶

In private, his comments were far more biting, and they were aimed directly at the Senate. “I am at a loss to understand how those who have attained the high position of senator can permit themselves to indulge in reckless characterization of other peoples” in “their opposition to the work of the [Washington Disarmament] Conference.” Such actions were “so injurious to the conduct of our foreign relations.” It was “certainly cause for anxiety when the results of the most earnest endeavor under American auspices come so near to defeat at the hands of the Senate.” The United States could not enjoy the “prestige and influence” it deserved, he protested bitterly, “if we are thus betrayed in our own homes.”Footnote ³⁷

Similarly, Hughes viewed congressional attacks on Japanese immigration as another “very sorry business” that “implanted the seeds of an antagonism which are sure to bear fruit in the future.” Bemoaning the resulting “substitution of antagonism for cooperation in the Far East,” he again blamed the Senate. “Our friends in the Senate have in a few minutes spoiled the work of years and done a lasting injury to our common country.” Public criticisms of the Senate's excesses were “entirely justified,” he declared, and the Senate's constant meddling made him “greatly depressed.”Footnote ³⁸

For Hughes, then, the language in Curtiss-Wright about the “plenary and exclusive” foreign affairs power of the executive was hardly unfamiliar, unjustified, or unwanted. Indeed, it would have seemed to him precisely on target. His inbred executive temperament, his experience and tactics as secretary, his anger and resentment at the Senate, and his carefully articulated views on the independent and exclusive constitutional powers of the executive all confirmed the rightness of that language. The Senate, moreover, surely revived Hughes's distressing memories of his frustrations with its earlier ill-informed and “injurious” foreign policy actions when in early 1935 it once again rejected American membership in the World Court, membership that Hughes had long urged and a court on which he himself had proudly served from 1928 to 1930. The principles Hughes advocated in the 1920s paralleled the executive power language of Curtiss-Wright, and those principles were far different from anything that Sutherland had advanced in his pre-Court writings. Consequently, it seems most probable that it was Hughes—not Sutherland—who “won” the Court in Curtiss-Wright and inspired its “plenary and exclusive” executive foreign affairs power language.Footnote ³⁹

That Hughes would use his position as chief justice and his persuasive powers as an advocate to advance his strongly held views on executive foreign affairs power seems undeniable.Footnote ⁴⁰ “While the Chief Justice has only one vote, the way in which the Court does its work gives him a special opportunity for leadership,” he explained in 1928. “At the conference it is the practice for the Chief Justice, unless he desires otherwise, to be the first to state his opinion with respect to the case to be decided.” As chief justice, Hughes “set out for Saturday conference with some very pronounced views on how each [case] should be disposed of,” and he “actively sought” unanimity or near-unanimity in the Court's decisions. Invariably, he spoke first and made his opinion clear. Those conferences “lasted six hours,” Brandeis later recalled, “and the Chief Justice did all the speaking.”Footnote ⁴¹

When Curtiss-Wright came before the Court, moreover, Hughes would have harbored no doubt that the president's action was constitutional and that the congressional resolution should be upheld. In his defense of executive power in the 1920s, he had, in effect, already decided the issue. The foreign affairs power of the executive, Hughes announced in 1928, included the power to impose arms embargos on nations in the Western Hemisphere. If the president “finds that in any American country conditions of domestic violence exist, which are promoted by the addition of arms or munitions of war procured in the United States,” the president is empowered “to put an embargo upon the exportation of such arms or munitions of war from the United States to any such country.” Although Hughes did not specify the source of the president's power, he seemed to suggest that it was of constitutional stature, because he cited no statutory authority and declared that any resulting embargo would carry “such limitations as the President may prescribe.”Footnote ⁴² The hypothetical embargo he described in 1928 fit the embargo in Curtiss-Wright precisely.

Equally important, Hughes's practical understanding of the use of embargos would most likely have made him particularly sympathetic to Roosevelt's position in the debates over neutrality legislation. The proper application of embargos, Hughes had maintained, depended upon shrewd pragmatic judgments, the kinds of judgments that Roosevelt and his supporters insisted were necessary to make embargos effective as a method of preserving the peace. The decision to impose an arms embargo, Hughes explained in 1928, presented questions that were “delicate”—the same word that Curtiss-Wright later used to describe the foreign affairs powers of the executive—and that required sophisticated practical judgments involving “choices which all, even governments, must make between good and evil in a world of moral decisions.” To make such difficult choices wisely, “each case must be judged on its own merits.” If highly individualized and pragmatic decision making in “each case” was essential to employ embargos effectively, legislation mandating rigid and across-the-board prohibitions—the kind of laws that the president's neutralist and isolationist adversaries sought to impose—would be profoundly unwise as a matter of national policy and highly dubious as a matter of public morality. When Hughes considered Curtiss-Wright, then, he would not only have regarded the president's proclamation as constitutional, he would also most likely have sympathized with Roosevelt's appeal for discretionary powers and regarded the mandatory proposals of his isolationist and neutralist adversaries as unwise and dangerous.Footnote ⁴³ Hughes in that case would have felt no reluctance—especially in addressing an arms embargo imposed upon two South American countries—in urging the justices to uphold the government and affirm the principle of executive power and independence in foreign affairs.Footnote ⁴⁴

For Hughes, moreover, the time was ripe, and Curtiss-Wright was a serviceable vehicle for such a pronouncement.Footnote ⁴⁵ Although he maintained a nearly complete public silence on controversial issues, he was nonetheless deeply disturbed by events in Europe, fearful of a new world war, and likely sympathetic with the plight of German Jews.Footnote ⁴⁶ Only months after Curtiss-Wright was decided Hughes could not resist making vague but pointed comments on the world situation. Asked to deliver an address at a college alumni luncheon, he warned his audience that “the institutions of democracy are threatened by an authoritarian philosophy” and by “a regime of force” that imperiled the world. “Ruthlessness in trampling upon the rights of individuals in the exercise of the brute strength of the majority, if unchecked,” he declared, “will inevitably lead to the entire overthrow of democratic processes and the substitution of the tyranny of force.”Footnote ⁴⁷

If Hughes had urged the “plenary and exclusive” executive power language on the justices, his exhortation would have carried great weight. The chief justice's “actual influence will depend upon the strength of his character and the demonstration of his ability in the intimate relations of the judges,” he had written in 1928, and in those qualities Hughes excelled. He was a superb administrator who worked assiduously to streamline internal procedures and ensure that the Court stayed abreast of its caseload. In preparing for Saturday conferences, he told his biographer, he invested “an immense amount of work” to master the record in all the cases. In conference, he presented issues clearly and concisely, and he kept discussions sharply focused. In the delicate task of assigning opinions, he sought to spread both the general workload and major cases fairly among all the justices. Finally, in personal relations, he was invariably courteous to his colleagues, sought to accommodate their concerns when possible, and remained on cordial terms with all. Persistently he worked to create and preserve as much harmony as possible on a deeply divided Court, and he retained the high regard of all the majority justices.Footnote ⁴⁸

Further, in Curtiss-Wright, Hughes's views would probably have carried greater weight than usual. The justices knew that he was not only broadly experienced in foreign relations but that he also possessed extensive experience in Latin American affairs. As secretary of state, he had dealt with most of the countries in the hemisphere and, among other achievements, had at one point helped to avoid a threatened war between Peru and Chile. After leaving the State Department, he wrote a book on American foreign policy in Latin America, and in 1928, he headed the American delegation to the Sixth Pan-American Conference in Havana. Having previously helped resolve several South American boundary disputes, as chief justice he served in 1932 and 1933 as president of a three-person arbitration commission that settled a long-standing boundary conflict between Guatemala and Honduras. He continued, in addition, to deal with issues that had arisen while he was secretary of state, and on several occasions, he drew on his State Department expertise to help his colleagues with the Court's business.Footnote ⁴⁹

Finally, while the Court was considering Curtiss-Wright, world events further highlighted the salience of Hughes's South American expertise and the critical importance of both executive leadership and hemispheric harmony. To the accompaniment of widespread fanfare and tumultuous receptions, Roosevelt visited Rio de Janeiro and Montevideo in early December on an extended trip to attend a Pan-American conference in Buenos Aires. There, the president sought to unify the hemisphere behind common policies, including the use of embargos that would apply if and when local wars erupted, exactly the kind of situation that the congressional resolution in Curtiss-Wright addressed. Although Roosevelt's effort failed, his tour reflected growing anxieties about a coming war, exemplified the president's pivotal role in foreign affairs, and underscored the need to maintain peace and unity in the Western Hemisphere.Footnote ⁵⁰

Roosevelt's efforts in Buenos Aires, the continuing battle over congressional neutrality legislation, and the multiplying foreign threats that loomed could only have confirmed in Hughes's mind the wisdom of executive independence in foreign affairs and the need for executive discretion in the use of embargos. Given his firm commitment to those principles and his determination to lead the Court, it seems highly probable that he urged the language of “plenary and exclusive” power on the justices. Given the respect he commanded on foreign affairs law and the obvious challenges the nation faced from abroad, it seems equally probable that some, and quite likely all, of those who joined the majority found his arguments convincing.Footnote ⁵¹

Sutherland

If Hughes was the driving force behind Curtiss-Wright, the question remains why Sutherland agreed to alter his long-established views and accept the chief justice's executive-centered position. He would surely not have done so because he trusted or hoped to benefit Roosevelt, a person he regarded as “quite unfit and unsafe for the presidency.” It “remains a mystery,” H. Jefferson Powell recently noted, “why Sutherland himself reworked in the president's favor the theory that Curtiss-Wright gave him the chance to write into law.”Footnote ⁵²

The solution to the mystery seems to lie in the compelling impact of events. By 1936, Sutherland's personal situation as well as his institutional position had changed drastically, and both the politics of American foreign policy and the dangers that threatened from abroad were radically different. Sutherland was ready to adapt.

A career Republican politician, Sutherland was a Party spokesman and activist when he wrote his earlier works. He had served in the Utah State Senate and then in the United States House of Representatives, and in 1905 he began two successive terms in the United States Senate. Defeated for re-election in 1916, he stayed in Washington, practicing law and remaining closely involved in Republican Party affairs. When a seat opened on the Court in 1922, he was an obvious choice, for reasons that went far beyond his undoubted ability and well-earned reputation for legal acumen. He was thoroughly sound from the party's point of view, and he was ideally connected. The president was his friend and ex-Senate colleague Warren Harding, whom he had enthusiastically supported in the election of 1920; the Senate was controlled by his other ex-colleagues in the Party by a whopping margin of 22 votes; and the highly influential Chief Justice William Howard Taft, a conservative Republican who worked assiduously with the new administration to place “loyal teammates” on the federal bench, “heartily endorsed” his appointment.Footnote ⁵³

In the years before he went on the Court, Sutherland's personal position and his party's politics virtually ensured that he would stress the “co-ordinate” role of Congress and reject any idea that the executive possessed “plenary and exclusive” foreign affairs powers. When he wrote his 1910 article, he was a Senator, and by the time he published Constitutional Power and World Affairs in 1919, he had spent 12 years in the upper chamber, the last 6 as a member of the Senate Foreign Relations Committee where, frequently and forcefully, he announced his opinions and his party's positions on the foreign affairs issues of the day.Footnote ⁵⁴

Sutherland's pre-Court writings, moreover, were not merely well-considered jurisprudential essays but also carefully shaped political tracts. In his 1910 article, for example, he repeatedly stressed the difference between the national government's unlimited “external” powers and its strictly limited “internal” powers. Tellingly, he defended a restrictive version of the commerce power that would bar a variety of labor related reform proposals and emphasized, in particular, that the limited nature of the federal government's “internal” powers prohibited it from enacting a national child labor law, at the time a paramount goal of Progressives across the nation. In discussing “external” powers, Sutherland failed even to consider the ways in which they were allocated between Congress and the executive, the Republicans having controlled both the White House and the Senate since 1898. Focusing only on the “national” nature of foreign affairs power, he treated “external” powers as undifferentiated by branch and belonging simply to the “General Government” or the “National Government.”Footnote ⁵⁵

More importantly, by 1919, when he published Constitutional Power and World Affairs, the Democrats held the presidency for the 7th straight year, and Sutherland had established himself as a persistent and sharp-tongued critic of the administration. Repeatedly he decried President Wilson's excessive and dangerous power, charging that the president simply “issues orders” to supine Democrats in Congress and thereby controlled the whole government. His attacks were often “bitter,” his sympathetic biographer acknowledged, because Sutherland regarded Wilson's ideas as “unsound” and his embrace of Progressivism as the act of “a turncoat.”Footnote ⁵⁶

In those pre-Court years, Sutherland would have especially scorned the language of “plenary and exclusive” executive power because it was the hated Wilson who hailed executive leadership and proclaimed the “very absolute” power of the president in foreign affairs. “The initiative in foreign affairs, which the President possesses without any restriction whatever,” Wilson declared boldly and sweepingly, “is virtually the power to control them absolutely.” Not only did Wilson trumpet the executive's “absolute” foreign affairs powers, but he also made the exercise of those powers an intensely personal matter. The president “must stand always at the front of our affairs,” he announced, “and the office will be as big and as influential as the man who occupies it.”Footnote ⁵⁷ Wilson's claim that the executive power was largely a matter of personal character, combined with his early successes and his arrogant and self-righteous manner, drove Republicans to outraged fury.

Most decisive, when Sutherland published his book in 1919, he was passionately engaged in the fierce Republican campaign against Wilson's handling of the Paris Peace Conference and his support for the Treaty of Versailles and the League of Nations. “I am in very grave doubt,” Sutherland declared in September 1918, “as to the wisdom of the entire movement for a league.”Footnote ⁵⁸ As long as Wilson was president and the monumental battle over ratification raged, Sutherland would hardly have dared advance the idea that the executive possessed independent and exclusive foreign affairs powers. Nothing was more essential to the Republican's anti-Wilson campaign than the contrary principle that Congress shared the nation's “external” powers and played an equal role in shaping its foreign policy.

Moving beyond the position he advanced in 1910 that “external” powers were simply “national” powers, Sutherland's 1919 book introduced an extensive consideration of the Constitution's allocation of powers among the branches, and it proclaimed that the foreign affairs powers of Congress and the executive were “co-ordinate.” Its pages echoed the sounds of the ratification battle. Implicitly challenging Wilson, who had refused to name a single Senator to the American delegation to the peace conference, it insisted that the Senate had the right to participate ‘in the making of treaties at any stage of the process.” Directly reprimanding Wilson, it declared bluntly that “no wise President” would fail to consult the Senate in negotiating a treaty. Broadly warning him, it declared that once “a treaty has been transmitted to the Senate for its action, the power of that body is plenary.” Indeed, it announced, Congress should never follow the executive with “blind obedience” and “must exercise its own judgment” on matters of foreign policy. “Any other course,” Sutherland charged, “involves a double betrayal of official trust—usurpation of power by the President and abdication of duty on the part of Congress.”Footnote ⁵⁹

Thus, Sutherland's 1919 book advanced the Republican's political and constitutional case against Wilson, his foreign policy, and his general theory of executive leadership. It declared that the “potency and influence” of the executive had expanded “to an extent never dreamed of” by the Founders and that “executive domination” threatened the Constitution's system of separated national powers. Those who saw the president as the “sole repository” of the people's sovereignty—a pointed reference to Wilson and his supporters—were “[v]ery decidedly” wrong.Footnote ⁶⁰

In warning against excessive executive power, Sutherland's book tracked the central theme of his party's attacks on Wilson's entire presidency, a theme that carried through to the election of 1920, which Wilson hoped to make a referendum on the Treaty and the League. Then, the Republican platform pledged to “end executive autocracy and restore to the people their constitutional government,” while the party's presidential candidate promised to honor the constitutional role of Congress by returning to “party government, as distinguished from personal government, individual, dictatorial, autocratic.”Footnote ⁶¹ For Sutherland and the Republican Party in 1919–20, the idea of “plenary and exclusive” executive power in foreign affairs—the power allegedly sought by the despised and “autocratic” Wilson—was anathema.

Sixteen years later, however, when Sutherland wrote his opinion in Curtiss-Wright, everything had changed. First, Sutherland was free from the demands of party politics, the pressures of the ratification debate, and the infuriating goad of Wilson and his arrogance. He was free, too, from the political constraints that his own ambition for a seat on the Court had imposed on him, an ambition that had been dependent upon loyalty both to his party and to the foreign policy prerogatives of the Senate. Therefore, in 1936 Sutherland could view foreign affairs issues from a broader, more pragmatic, and far less politically and personally involved perspective. Further, his service on the Court, especially his close association with Chief Justice Taft and Taft's profound commitment to upholding executive power, may also have fostered a new understanding of the desirability of executive independence and discretion.Footnote ⁶²

Second, Sutherland had become convinced that Nazi Germany was a menace to the world and that a new world war was rapidly approaching. Born in England, he retained a strong sense of his English background and a strong affection for his country of origin. In Constitutional Power and World Affairs he praised his native land as the “home of religious and political tolerance” and the “birth-place of Anglo-Saxon liberty.” Germany he condemned as a “wild beast,” a “contemptible and cowardly” nation that for 40 years had “coldly plotted” war and “forgot there was a human soul.” By 1936, Sutherland saw Germany planning a repeat performance. He believed that the “fear of Germany” he found in England and France was entirely justified, and he was “very disturbed over the war situation in Europe.” The future, he reported, “looks very ominous.” Indeed, he declared, “unless there is a radical change in circumstances, a great war in the course of a few years seems almost inevitable.”Footnote ⁶³

Third, the threat of Nazism and the likelihood of war would have activated the hard lessons he had drawn from the First World War. One was that only military might could preserve the peace. “Surely,” Sutherland declared, “we have by this time discovered that it is weakness, and not strength, which invites attack.” A second was that the security of the United States consequently required an extensive and long-term program of military preparedness. He urged an expansion and modernization of the standing army, “a thorough-going system of universal compulsory military training” for all males older than 14 years of age, and the creation of a powerful two ocean navy to counter “the contingency of a combination of European and Asiatic powers against us.” Third, and most immediately relevant in 1936, was the fundamental lesson that he himself stressed with an exclamation point. “Yield nothing to the aggressor!” Sutherland was uncompromising in accepting the fact that wars were sometimes unavoidable. “A state of war is always dreadful,” he declared, “but it is a sweet and holy thing compared with a peace of ignoble capitulation to wrong.”Footnote ⁶⁴

For Sutherland, then, the ties of his English birth and cultural affinity likely combined with his growing anxieties over German expansionism and a coming world war, his commitment to American military preparedness, and his deep conviction that the nation should “yield nothing” to aggressors to lead him to favor an anti-Nazi foreign policy and accept the wisdom of Hughes's views on arms embargos and the foreign affairs powers of the executive. On most other issues of foreign affairs law, the two had long held similar views. They agreed, for example, that the war powers of the national government were complete and fully adequate to meet any possible foreign challenge and that those powers were supreme and exclusive with respect to the states. Writing for the Court only 2 years before Curtiss-Wright, Hughes had sounded very much like the pre-Court Sutherland when he insisted on the “sovereign prerogative” of the United States on all “international questions” and declared that in such cases “a State has no prerogative.”Footnote ⁶⁵ Agreement on such fundamental principles would have made it relatively easy for Sutherland to reconfigure his earlier theory and incorporate Hughes's position that in foreign affairs the executive held “plenary and exclusive” power.

Hughes, of course, selected Sutherland to write for the Court. Had he found Sutherland resistant to his views, he could have assigned the case to another justice or, more appropriately, written it himself. Hughes was invariably purposeful in assigning cases,Footnote ⁶⁶ and in selecting Sutherland he must have been confident that he would secure an opinion that he could readily join and, most probably, one that would reflect his own convictions—in 1936 more critical than ever—about the independent foreign affairs power of the executive.

The key to understanding Sutherland's change of position, then, would seem to lie in the contrasting pressures and conditions he confronted, not simply the emergence of new foreign dangers in the 1930s but more tellingly in the passing of the old political battles of his pre-Court years. In addressing questions of foreign affairs law, Sutherland was flexible and pragmatic, far more so than he was in dealing with issues of domestic law.Footnote ⁶⁷ He had carefully molded his earlier writings to serve his contemporaneous political purposes. In 1910, he discussed not only the nature of the national government's “external” powers, but also emphatically underscored the sharply limited nature of its “internal” powers. Thus, he was able to argue that the national government lacked power to enact a national child labor law and other similar Progressive proposals. In 1919, when war and the urgent challenges of postwar foreign policy led him to focus more carefully on “external” powers, he moved beyond his earlier conception of unallocated “national” powers to develop a theory of allocated branch powers that were shared and “co-ordinate.” Thus, he was able to argue that the Senate's power over treaties was “plenary,” that it should scorn “blind obedience” to the executive, and that it had a constitutional “duty” to exercise an independent judgment on issues of foreign policy. That 1919 position seemed firmly anchored in his and his party's intense antipathy to Wilson and in their concerted opposition to the Treaty of Versailles and the League of Nations. As those galvanizing issues faded during the following decade and a half, however, so too did Sutherland's commitment to the constitutional formulations of 1919. By the mid-1930s, when both threatening world conditions and his own institutional position and foreign policy concerns had changed drastically, he was ready once again to remold his position to serve new and quite different purposes.

Brandeis

If Sutherland's change of position seemed puzzling, Brandeis's decision to join the majority appeared equally so. Curtiss-Wright violated Brandeis's philosophy of judicial restraint and conflicted with some of his most basic constitutional principles. In the past, in fact, Brandeis had criticized Sutherland for going beyond the facts of cases when he wished to “settle things.” Sutherland, he believed, “had to be held in check.”Footnote ⁶⁸Curtiss-Wright seemed a perfect opportunity for him to try to do so.

By 1936, Brandeis had developed a series of elaborate doctrines of constitutional avoidance. Less than a year before Curtiss-Wright was decided, he had issued his famous Ashwander concurrence, in which he drew on dozens of precedents to identify seven specific rules whereby the Court “has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Curtiss-Wright manifestly violated two of those rules: It decided a question of constitutional law unnecessarily, and it formulated a constitutional rule broader than “the precise facts” required.”Footnote ⁶⁹

More compelling, Sutherland's opinion conflicted with four of Brandeis's fundamental constitutional principles: that governmental centralization should be avoided when possible, that federal judicial power should be carefully limited, that Congress held constitutional primacy in American government, and that executive power should always be subject to checks.Footnote ⁷⁰ Contrary to those principles, Curtiss-Wright encouraged centralization of power in the national executive, seemed to make the judiciary the primary constitutional check on executive foreign affairs powers,Footnote ⁷¹ limited and, to some uncertain extent, denied congressional power in foreign affairs, and asserted independent power in the executive that was beyond the authority of Congress to check. Only one year earlier, Brandeis had given voice to his deep suspicion of executive power when he joined the Court in limiting the president's power to remove members of independent regulatory agencies. “If men on the Federal Trade Commission and similar government agencies are not allowed to exercise their independent judgment,” he explained about the decision, “we should have in effect a dictatorship or a totalitarian state.”Footnote ⁷²

No fundamental sympathy with Sutherland's political or jurisprudential views, moreover, would have induced Brandeis to join his Curtiss-Wright opinion in the face of those principles. Before their Court days, the two had tangled repeatedly as adversaries at opposite ends of the political spectrum, and on the Court they divided over on a range of pivotal issues. When Curtiss-Wright was decided in 1936, the fever-pitch battle over the constitutionality of the New Deal had entered its most heated phase, and Brandeis and Sutherland stood in the Court's rival wings, caucusing with different colleagues and splitting sharply in the term's most decisive constitutional decisions.Footnote ⁷³

Nor would Brandeis have joined the majority for reasons of tactics or deference. Although he recognized the virtues of judicial consensus and sometimes accepted opinions that he thought dubious, he would hardly have followed that course in Curtiss-Wright. Judicial unanimity and well-settled rules were desirable in “ordinary cases” where “it doesn't matter terribly how you decide so long as [a rule] is settled,” he explained. But there was a “special function of dissent in constitutional cases” in which the issues involved “statesmanship.” On those issues, Brandeis insisted, “nothing is ever settled” until done so wisely and rightly, when “statesmanship is settled and at an end.”Footnote ⁷⁴ Therefore, given the sweeping nature of Sutherland's constitutional language and the vast import of the principles at stake, neither tactical concerns nor institutional deference would likely have induced his agreement.

Brandeis's decision in Curtiss-Wright, then, seemed easily predictable. He would vote to uphold the government's prosecution on the straightforward ground that the president's proclamation was authorized by Congress. Filing a separate concurrence, as he had done earlier in the year in Ashwander, seemed his obvious course.

But Brandeis did not follow that course, as he did not invariably follow his principles of constitutional avoidance. His jurisprudence of restraint was not a rigid command, but a supple tool that he deployed to serve broader constitutional goals. When countervailing considerations weighed heavily, he was prepared to shade or ignore his Ashwander canon.Footnote ⁷⁵ The question, then, is what countervailing considerations moved him to do so in Curtiss-Wright?

Seemingly the most likely possibility was that Brandeis accepted Sutherland's opinion because he was willing to qualify his views on separation of powers when he addressed issues of foreign affairs law. Brandeis certainly gave vigorous support to national power in areas related to foreign affairs, such as commerce, treaties, Prohibition, and war. In addressing the comprehensive controls that the federal government imposed during World War I, for example, he consistently upheld the most far-reaching assertions of national authority. Similarly, he was willing to give the Eighteenth Amendment an exceptional breadth, especially in dealing with its interstate and international enforcement.Footnote ⁷⁶

Brandeis's ready acceptance of national power in areas related to foreign affairs law, however, was not sufficient to align him with Sutherland's executive power language. In every case in which Brandeis upheld national power, the Court's decision rested on the authority of congressional legislation, not on any exclusive executive power, and it was to the legislature that Brandeis continually urged deference. In Curtiss-Wright, the presence of the congressional resolution readily explained why he would agree with the Court's result, but it explained equally why he would have found the opinion's language about “plenary and exclusive” executive power unnecessary and dangerous.

It is equally important that Brandeis's experience with both the war power and Prohibition enforcement had raised acutely troubling concerns. Both had led to a variety of egregious abuses—political repression, intrusions on privacy, and widespread violations of civil liberties—that convinced him of the need to impose limits on federal power.Footnote ⁷⁷ In a series of opinions after 1919, he articulated an increasingly muscular view of constitutional civil liberties, especially the right to freedom of speech. That right was invaluable, he insisted, because it protected freedom of thought, “the privacy and freedom of the home,” and the “right of free men” to employ reason and public discussion “to strive for better conditions through new legislation and new institutions.” By the late 1920s, Brandeis's view of the war power and Prohibition enforcement had changed markedly, and by the mid 1930s, he had helped move the Court to provide more expansive judicial protections for constitutional civil liberties.Footnote ⁷⁸

Moreover, Sutherland's “internal/external” dichotomy, which purportedly shielded domestic matters from the executive's extraconstitutional foreign affairs powers, would hardly have eased Brandeis's civil liberties concerns. His experience with the free speech cases that arose from the First World War and its aftermath had taught him one undeniable lesson: “internal” affairs could not always—perhaps ever—be insulated from “external” ones. Sutherland's doctrinal line was permeable at best and illusory at worst. Whatever powers “the nation” as a whole might possess over “external” affairs, they should not reside in unchecked form in the executive because, sooner or later, they would intrude repressively into domestic affairs.

Brandeis would also have been suspicious of Sutherland's views on foreign affairs law because Sutherland had insisted that the “power to declare war” meant that “freedom of speech may be curtailed or denied.” Criticisms of the Sedition Act “on the ground that it unduly curtails freedom of speech and of the press,” Sutherland had proclaimed in his 1919 book, “are wholly without justification.” Writing for the Court in United States v. MacIntosh in 1931, Sutherland again emphasized that the comprehensive nature of the war power meant that “freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances.” In his early free speech opinions, Brandeis had rejected Sutherland's position on the Sedition Act, and 12 years later, he readily recognized the dangers that lurked in the latter's MacIntosh opinion. Refusing to accept it, he joined Hughes's dissent.Footnote ⁷⁹

While those considerations warned Brandeis against Sutherland's opinion, however, two other factors apparently countered their influence and drew him toward it. One was the animating combination of his commitment to Zionism and his outrage at the threat of Nazism. The other was Hughes. In late 1936, the impact of the former likely made the views of the latter convincing.

Brandeis came to Zionism relatively late in life, but by World War I he had emerged as the leader of the American movement and, to some extent, of world Zionism. His overriding goals were to encourage Jewish settlement in Palestine and to foster the region's economic development. He not only provided direction and inspiration but also contributed generously from his own funds, donating more than $600,000 to Jewish and Zionist causes. For him, Palestine represented not merely the dream of a Jewish homeland or even a haven for oppressed Jews, but something far broader: an opportunity to fulfill his deepest Progressive aspirations to build “a worthy self-supporting community.”Footnote ⁸⁰

Brandeis's early optimism about Palestine began to fade in the late 1920s. Repeated outbursts of Arab violence distressed him, and Britain's administration of its League of Nations mandate over the region appeared increasingly ineffectual. Stepping up efforts to secure American support for the Zionist cause, he met with little success. The United States government was committed to cooperating with Britain and maintaining cordial relations with the Arabs.Footnote ⁸¹

When Adolph Hitler came to power in Germany in early 1933, Brandeis was so alarmed that only 6 weeks later he gave Jewish leaders the starkest advice. “The Jews must leave Germany.” Nazism transformed Palestine from a dream, a refuge, and an opportunity into a desperately needed haven for safety and, perhaps, survival. German-Jewish immigration into Palestine began to accelerate, and both the British and the Arabs reacted with growing anxiety and hostility. American policy showed no change.Footnote ⁸²

Brandeis threw himself into the struggle against the terrifying new menace. He sought to persuade the Roosevelt administration to protest Nazi treatment of German Jews and to allow expanded Jewish immigration into the United States. In 1933, he met personally with Cordell Hull, Roosevelt's Secretary of State, to press his views. “America should adopt a policy of general admission [of Jews] and emphatic denunciation of German policy of discrimination,” he argued, “so that the American [government] could invite other nations to follow our lead.” He supported public protests, encouraged mass rallies, and backed a proposal to boycott German goods. By early 1934, he agreed with David Ben-Gurion, the leader of the Palestinian Jews whom he most admired, that Germany and Japan were preparing for war and that Palestine was the essential refuge of the Jewish people. “Palestine,” Brandeis declared, “is the only hope.”Footnote ⁸³

Working through his many contacts, Brandeis sought assiduously to cultivate allies inside the administration, and Roosevelt himself offered a sympathetic ear. The President conferred personally with Brandeis about the worsening condition of German Jews and instructed the State Department to pass on to Zionists leaders any information received about developments in Palestine.Footnote ⁸⁴ Beyond such token gestures, however, the president refused to act. In part, he was unwilling to alter the nation's long-established policies, and he regarded the Nazi treatment of German Jews as an internal matter in which he could not properly meddle. A variety of factors, moreover, limited his freedom of action, including an apparently rising domestic anti-Semitism, widespread fear of a possible war, and the general desire of most Americans to remain aloof from foreign involvements. Topping the list, of course, was the administration's all-consuming focus on combating the Depression.Footnote ⁸⁵

Then, in April 1936, Palestine erupted in a wave of riots, strikes, and violence. Palestinian Jews sought to defend themselves and appealed to the British High Commissioner to restore order, but Arab leaders called for a general strike and escalated their agitation. Sporadic violence continued week after week, and the death toll mounted. Britain responded by increasing security measures, sending in military reinforcements, and announcing that it would establish a Royal Commission to investigate and recommend solutions.Footnote ⁸⁶

The crucial issue was Jewish immigration. In 1931, Prime Minister Ramsey MacDonald had declared that Britain would neither limit Jewish immigration nor restrict the sale of Arab lands to Jews, and between 1929 and 1936 the Jewish population jumped from 150,000 to 400,000. The increase included some 164,000 Jewish immigrants, many from Nazi Germany, and raised the Jewish percentage of Palestine's population to 30%. Arab leaders reacted by demanding the suspension of Jewish immigration and prohibiting the sale of land to Jews, measures that the Jews flatly rejected. The “gravest of all menaces” was “the possible suspension of immigration as a concession to Arab terror,” the Zionist General Council concluded. Meeting in Zurich in late August, it declared “unanimously that such a suspension would have the gravest effects and that it must be averted at all costs.”Footnote ⁸⁷

Brandeis stayed closely informed through innumerable sources. Suspension of immigration would present “grave dangers” and threaten “the whole policy of the national Home,” Ben Gurion wrote to him on July 5, saying that the only “solution of our political difficulties within Palestine lies in increased immigration and an accelerated upbuilding of the National Home.” Brandeis agreed wholeheartedly. The issue was so crucial, in fact, that he readily endorsed the practice of ignoring British limitations and illegally spiriting as many Jews as possible into Palestine.Footnote ⁸⁸

Through the summer months, the situation grew more perilous, and suspension rumors spread. Compounding the danger, several Arab countries launched diplomatic initiatives seeking to enter Palestinian affairs, interventions that the Zionists vigorously pressed Britain to reject. Worse, the Nazis also intruded, seeking to exploit the growing discord. They made new overtures to Arab leaders and invited the mufti of Jerusalem, one of the Arab leaders who had helped instigate the rioting, to visit Berlin.Footnote ⁸⁹

In late July, as the crisis deepened, Rabbi Stephen S. Wise—one of Brandeis's closest allies and the newly elected president of the Zionist Organization of America—rushed to London. The situation is “grave,” he reported to Brandeis on July 21, and in cables to Zionist leaders in New York he issued a series of urgent directions, exhorting that “everything should be done in America opposing suspension.” Fears deepened the next day, when the British secretary of state announced that the government was considering “a temporary suspension of immigration.” The “news is not good,” Wise informed Brandeis, “and it seems now as if nothing could avert suspension.”Footnote ⁹⁰

As the situation continued to deteriorate, Wise secured a meeting with James Farley, chair of the Democratic National Committee, and Roosevelt's top campaign adviser. Farley, in turn, arranged another meeting with Hull, and telegraphed Roosevelt who was campaigning in Salt Lake City. Explaining that he was acting at the request of Brandeis as well as Wise and Felix Frankfurter, Farley told the president that “your help” in the Palestine immigration matter was “immensely important from every point of view.” The next day, Wise met with Hull, and asked the secretary to speak with Roosevelt personally and secure his “permission to say to London” at the highest possible level that the president of the United States opposed the “threatened suspension” as a “disaster” for “the Jewish national Home.” Hull promised to do so, and that night he reported to Wise that he had spoken with Roosevelt. The president was “tremendously concerned” and told Hull to direct the American ambassador in London to take action. Hull told Wise that he, in turn, had instructed the ambassador to make clear to the British government that the United States had a strong interest in avoiding suspension and that the president himself was personally concerned with the issue.Footnote ⁹¹

Receiving Wise's report of the developments, Brandeis was overjoyed. It was, he congratulated his colleague, a “marvelous feat.” Nothing more important had happened since the mandate itself, and it would now be “clear to Great Britain America's deep interest and particularly F.D. and Hull's views.” Informing the British “what F.D. thinks,” Brandeis continued, would have more effect “than the most emphatic legal opinion of all American lawyers” about Britain's obligations under the Mandate.” Above all, it would show the British government “that F.D.’s administration ‘means business’.”Footnote ⁹²

Brandeis's faith in Roosevelt was soon rewarded. On September 7, the British government condemned Arab violence, announced that it was sending “substantial reinforcements to Palestine,” and implied that no major changes would be made in British policy until the Royal Commission completed its investigation. Then, on October 5, Wise met with Roosevelt personally, and the president informed him that Britain had “given up the idea of suspension because of your, (the American) interest.” Wise praised the president for the “magnificently effective way” that the government had intervened and told him that “we can never be grateful enough.” Then, as Brandeis had suggested, Wise pressed Roosevelt for further action. Telling the president that Brandeis supported his request, Wise asked that the government “supplement what it has done and put itself on record by sending an Aide-Memoire.” Roosevelt agreed. “Stephen,” he replied, “you tell Cordell [Hull] that I want him to do this and to send over whatever you and Felix [Frankfurter] prepare.”Footnote ⁹³

A month later Roosevelt's intervention bore its formal fruit. On November 5, the British secretary of state for colonial affairs announced that the government had “decided that a temporary suspension of immigration would not be justifiable on economic or on other grounds.” Although it would impose additional quota limits, there would be no “drastic departure” from existing immigration policy “in advance of the findings of the Royal Commission.”Footnote ⁹⁴

Brandeis was delighted and immediately focused on gaining a favorable report from the Royal Commission. Insisting that “we must devote our efforts at present to the Palestine emergency,” he declared that “America's deep interest” in Jewish affairs in Palestine “must be borne in upon the Commission.” Repeatedly, he emphasized the need to present “our case” and the “American case,” and he reviewed successive drafts of reports that the Zionists were submitting to the Commission. The goal, Brandeis instructed, was “to bring American influence to bear in every way possible.”Footnote ⁹⁵

Although defeat of the threatened suspension was a resounding victory, the turmoil, uncertainty, and violence in Palestine continued. Pleas for assistance from the Jewish Agency in Palestine poured in, and Brandeis continued to try to hold Zionist and non-Zionist Jews together in a united front. Deploring the continuing violence against Palestinian Jews, he confessed that “all of us must expect intensified anti-Semitic attacks as long as Hitler is in power.”Footnote ⁹⁶ Between early October and mid-December, he gave Ben-Gurion at least $40,000 for arms.Footnote ⁹⁷

Brandeis's intense Zionist efforts in the latter half of 1936 coincided with both Roosevelt's re-election campaign and the period when the general political relationship between the two men was at its closest. In the 20 months between Humphrey's Executor v. United States and the invalidation of the National Recovery Act (NRA) in May 1935 and Roosevelt's announcement of his Court-packing plan in February 1937, Brandeis's enthusiasm for the president and the New Deal was at its peak. Understandably, he reacted with deep satisfaction at Roosevelt's huge re-election triumph on November 3. His response, recorded the next day, was revealing. “F.D.,” Brandeis wrote Frankfurter, “should be of much help re Palestine.”Footnote ⁹⁸

Only 16 days after Roosevelt's re-election, the Court heard oral arguments in Curtiss-Wright, and one month later it handed down its decision. It seems hard to believe that Brandeis's view of Sutherland's opinion and its executive power language was not colored by his relationship with Roosevelt at the time. Brandeis was profoundly grateful for the president's response to the Palestine immigration crisis, extremely anxious over the undetermined future of the endangered Zionist cause, and deeply worried about the conclusions and recommendations the Royal Commission would offer. Above all, he was acutely aware of the crucial importance of Roosevelt's independence and discretion in conducting American foreign policy. That power seemed the key to the Zionist future. The independent constitutional power of the president in foreign affairs could hardly have seemed more desirable and benevolent to Brandeis at any point in his entire life than at the exact moment when he turned his attention to Curtiss-Wright.Footnote ⁹⁹

In that context, Brandeis would most probably have found Hughes's position on executive foreign affairs power convincing. He would have listened carefully to the chief justice's views on foreign affairs issues in any event, for he recognized the importance of his broad experience in the area. Hughes, Brandeis believed, had been an outstanding secretary of state who had “done an admirable job.” More to the point, unlike their positions on some domestic issues, their views on foreign policy, especially the threat of Nazism and war, overlapped substantially.Footnote ¹⁰⁰

Hughes and Brandeis, moreover, had long worked well together, and their personal character and judicial manner meant that disagreements “were always disposed of in a friendly fashion.” Brandeis admired the progressive values that Hughes had shown as governor and associate justice, considered him an exceptional administrator, and admired his mastery of the facts in introducing cases in conference. That last quality, one that the two men valued and shared in the highest degree, fortified their mutual respect. In retirement, Brandeis told friends that Hughes had been the finest chief justice he had known.Footnote ¹⁰¹

The two cooperated closely and with great sensitivity in handling several particularly delicate Court matters. When Holmes began fading badly in late 1931, the two agreed to share responsibility for what both regarded as “a highly disagreeable duty.” Hughes visited Holmes and advised him that the time had come for him to retire, and shortly thereafter Brandeis appeared by prearrangement to console Holmes as much as possible. Then, when Roosevelt announced his Court-packing plan in February of 1937, Hughes and Brandeis worked together discreetly to deliver a major blow against the proposal. Finally, in 1937 when Brandeis grew concerned with his own aging, he turned to Hughes for counsel. He began periodically consulting the chief justice about the possibly declining quality of his work, and Hughes repeatedly urged him to stay. Even when Brandeis made the decision to retire in early 1939, Hughes asked him to reconsider.Footnote ¹⁰²

Therefore, Brandeis would have trusted Hughes's judgment on an issue of foreign affairs law, and his conviction that Roosevelt's independence in the area was crucial to the struggle against Hitler and the cause of Zionism would likely have made Hughes's position compelling. The fact that their substantive foreign policy views overlapped substantially would have confirmed for Brandeis the wisdom of endorsing Hughes's position, while their cordial working relationship and mutual admiration would have made it easy for him to follow the chief justice's lead.

The Other Justices

Of the remaining justices, the readiest vote for Sutherland's opinion surely came from Cardozo. He would have entertained no doubt that the congressional resolution was constitutional because he was willing to stretch the delegation doctrine to its outermost limit. The only justice to dissent in Panama Refining Co. v. Ryan, Cardozo had searched diligently for an adequate guiding principle before generously locating it in the statute's general statement of purpose. Even in Schechter, in which he agreed that the delegation had gone too far, he refused to join the majority's opinion. Concurring separately, he declared the delegation wanting for both its wholesale lack of standards and its all-encompassing sweep: the fact that it conferred essentially unlimited power over the whole national economy.Footnote ¹⁰³ The delegation at issue in Curtiss-Wright was readily distinguishable on both grounds. It provided a somewhat more specific standard and had a far more narrowly circumscribed scope.

Notwithstanding his generous view of delegation, however, Cardozo might have hesitated over the broad executive power dicta in Sutherland's opinion. Like Brandeis, he also sought to avoid unnecessary constitutional language, and he favored opinions with narrower and factually specific reasoning.Footnote ¹⁰⁴ In accepting Curtiss-Wright's executive power language, however, he ignored those judicial guidelines, and he likely did so because in the context of 1936 he agreed on the immediate need for a strong and independent executive foreign affairs power as a matter of substantive policy. Cardozo had been worrying about American involvement in a new world war since at least 1932, and the subsequent triumph of Nazism compounded his fears and fired his anger. Cardozo nourished a strong sense of Jewish identity, and he reacted immediately and viscerally against Hitler and Nazism. “The Hitler business is humiliating,” he exclaimed only days after the German leader came to power. Readily condemning “the Hitler horrors” and the “whole shameful business” of Nazism, he grew increasingly distressed over the trend of events. By 1936, he was writing dejectedly that the “world is pretty troubled these days” and complaining that he met few people who were “fired with a kindred zeal” and “aflame upon the subject” of Nazism as he was. “We need another Garrison,” he protested, “who will cry out unceasingly until all the world shall hear.”Footnote ¹⁰⁵

Therefore, Cardozo had every reason to join Sutherland's opinion, notwithstanding its unnecessary language. Doctrinally, he had no problem with the delegation issue. Practically, he hated Hitlerism, feared a coming war, and supported a strongly anti-Nazi foreign policy. Politically, he trusted Roosevelt and his leadership, and was generally more sympathetic to the president and the New Deal than was Brandeis.Footnote ¹⁰⁶ Privately, he heard no contrary arguments from his normal allies. Stone was absent, while Brandeis may have encouraged him to join Sutherland's opinion.

Beyond their formal opinions, Van Devanter, Butler, and Roberts left behind the scantiest evidence of their work on the Court. Their decision to join Sutherland's opinion, however, seemed readily understandable and likely based on the same considerations that moved Hughes and Sutherland, if not necessarily Brandeis and Cardozo. First, all three were predisposed to accept strong national foreign affairs powers and a substantial amount of executive discretion in the area. During and after World War I, Van Devanter joined the Court's decisions upholding wide-ranging exercises of the war power,Footnote ¹⁰⁷ and Butler and Roberts subsequently did the same. All joined Trading-with-the-Enemy-Act cases that upheld the power of Congress to authorize uncompensated seizures of enemy and other “foreign” property as well as its power to delegate ample and flexible authority to the executive to make the power effective.Footnote ¹⁰⁸ In United States v. Chemical Foundation, Inc., for example, Butler declared congressional power in the area “untrammeled” and upheld the statute's delegation on the generously expansive, if not almost cavalier, ground that it “went as far as was reasonably practicable under the circumstances.”Footnote ¹⁰⁹

Second, Curtiss-Wright's “internal/external” dichotomy apparently satisfied their delegation concerns. Sutherland carefully reached out to them by underscoring its decisive importance. He not only declared it “unnecessary to determine” whether a similar delegation would be unconstitutional if the case involved “internal affairs,” but went further, announcing that the Court was “assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid.” Indeed, he repeated the point, declaring that “within the international field,” Congress “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.”Footnote ¹¹⁰

Third, none of the three had notable experience in foreign affairs, and they would have listened to those who did.Footnote ¹¹¹ For Van Devanter and Butler, Sutherland would have been a familiar and readily acceptable guide, and Hughes's advocacy would have fortified their natural inclination to side with Sutherland. For Roberts, Hughes would have been particularly influential. The chief justice had taken Roberts under his wing from their early days on the Court, and Roberts later described Hughes as being like a father to him. He believed that Hughes “dominated the court by reason of the power and keenness of his intellect” and by the force of his “towering personality.” Although he did not always agree with Hughes, he would have listened carefully to the chief justice's arguments on an issue of foreign affairs law and in Curtiss-Wright would almost certainly have accepted his views.Footnote ¹¹²

Dissenting alone, McReynolds did not even bother to write an opinion, but his disagreement seemed independent of any significant concern over foreign policy.Footnote ¹¹³ He held a narrow conception of the delegation doctrine and, far more salient, a particularly narrow conception of executive power. Further, on both political and personal grounds, he would have been loath to acknowledge a special or novel executive power of any type while Franklin Roosevelt was president. He abhorred Roosevelt's domestic policies and was his harshest and angriest critic on the Court. Perhaps most important, McReynolds was a man of intense emotions and extreme personal antipathies, and he despised Roosevelt. No matter what might happen, he had vowed, he would never resign from the Court “as long as that crippled son-of-a-bitch is in the White House.”Footnote ¹¹⁴ Therefore, his refusal to join an opinion asserting the president's “plenary and exclusive” power was hardly surprising. Doctrinal, political, and personal grounds explained his decision, and those grounds had little or nothing to do with the foreign policy issues that wracked the 1930s.

Confirmation from Opposition: The Return of Stone

Although Stone had been absent because of serious illness when the Court considered Curtiss-Wright,Footnote ¹¹⁵ on his return he quickly made his opposition clear. “I had no part” in the case, he hastened to inform Edward M. Borchard, a professor at Yale Law School. “I should be glad to be disassociated” from it.Footnote ¹¹⁶ At his first opportunity, in fact, Stone did disassociate himself. In early March of 1937, only one month after his return to the bench, the Court heard argument in United States v. Belmont, and Hughes assigned Sutherland to write for the Court. Relying on Curtiss-Wright, Sutherland once again went beyond the questions presented and produced another sweeping opinion that further extended the principle of executive independence and discretion in foreign affairs.Footnote ¹¹⁷ Stone refused to join and concurred in the result only, avoiding the broad constitutional claims Sutherland advanced and relying on narrow and technical grounds.Footnote ¹¹⁸

Stone's rejection of Curtiss-Wright was not only immediate but intense, and his hostile reaction was rooted in his heartfelt judgments on foreign policy.Footnote ¹¹⁹ Whereas in the circumstances Hughes, Sutherland, Brandeis, and Cardozo—and likely some or all of the other majority justices as wellFootnote ¹²⁰—agreed on the desirability of executive discretion in foreign affairs and a vigorous anti-Nazi foreign policy, Stone feared the former and opposed the latter. Embracing neutrality and noninvolvement, he scorned internationalist principles of collective security and fervently rejected the argument that discretionary arms embargos would deter aggression and prevent war. When Congress was considering the 1936 Neutrality Act, he expressed his admiration for Senator Hiram Johnson's adamant opposition to any grant of executive descretion and insisted that such discretion would do nothing but drag the nation “into trouble.” The “present proposal for neutrality to be operated in the discretion of the President,” he told John Bassett Moore, a professor of international law at Columbia University, showed that “nothing is too ridiculous for a large number of our people to swallow if it is properly sugar-coated with ‘Peace’.” Stone's hostility to executive discretion was so intense that he wrote to Moore only weeks later to reiterate “how utterly unneutral is a discretionary ‘neutrality to be exercised in the discretion of the President’,” Stone's fear of Roosevelt's foreign policy only intensified over the years. In early 1938, he warned against “an inclination on the part of people in high place to stir up wartime animosity,” and harbored increasingly grave forebodings. “I have much to fear that there is a disposition in high quarters to take a hand in European affairs,” he wrote, and “I fear that disposition more than I can say.”Footnote ¹²¹

Even more arresting than Stone's fervent neutralist convictions and his acute fear of Roosevelt's foreign policy was his noticeably restrained attitude toward Hitler and Nazism. Although he expressed clear disapproval of Nazism and its actions,Footnote ¹²² he opposed anti-Nazi foreign policy initiatives. Such efforts, he believed, were unwise and dangerous. In 1936, he informed Frankfurter, to the latter's undoubted chagrin and anger, “I know quite a number of Germans in Washington and have continued friendly relations with them.”Footnote ¹²³ More revealing, after Kristallnacht in 1938, when Secretary of the Interior Harold L. Ickes, Senator William King of Utah, and President Roosevelt himself all condemned the Nazi-inspired violence, Stone protested their statements. It was a “sad spectacle,” he complained to Moore, to see “three important officers of our Government hurling Billingsgate at the Nazis in the best Nazi style.” Indeed, his intensely anti-Roosevelt and noninterventionist convictions led to an extreme judgment. It was the United States, not Nazi Germany, he insisted, that constituted “the biggest menace for the peace of the world just now.”Footnote ¹²⁴

Borchard and Moore, Stone's frequent and fervid correspondents, continually stoked his hostility to discretionary arms embargo legislation, fanned his opposition to Wilsonian ideas of collective security, and encouraged his acute suspicion of Roosevelt's foreign policy.Footnote ¹²⁵ Both were outspoken critics of the administration, who worked closely with isolationists and neutralists in Congress, including Senator Johnson.Footnote ¹²⁶ The “present administration in Washington,” Borchard declared in September 1936, “is as dangerous to this country as was the Wilson administration.” The two Democratic presidents shared foreign policy ideals that “naturally lead to confusion and war.”Footnote ¹²⁷

When Curtiss-Wright and Belmont were decided, Borchard and Moore immediately condemned both cases. Borchard wrote to Stone to criticize the first decision, and it was in response that Stone heralded his own disapproval. When Belmont was decided, Borchard told Stone that Sutherland's opinion was “incoherent,” “deplorable,” and “dangerous.”Footnote ¹²⁸ Although Borchard and Moore criticized both opinions on legal grounds, they worried most immediately about their practical policy consequences. After reading Curtiss-Wright, Moore charged angrily that Sutherland “has endeavored in every possible way to enlarge the sphere of executive discretion.”Footnote ¹²⁹

Stone, like Borchard and Moore, opposed discretionary arms embargo legislation and the president's increasingly anti-Nazi foreign policy, and like them he immediately rejected Curtiss-Wright. Their shared reaction to the case was rooted in their fervently held belief that Roosevelt's foreign policy was war-provoking folly and that Sutherland's opinion would strengthen the president's political position and might help sway Congress in his favor. “I dare say the Administration will take advantage of Sutherland's opinion in the Curtis-Wright [sic] case,” Borchard predicted, “to ask again for the discretionary [arms-embargo] power they were denied last February.”Footnote ¹³⁰

Their immediate and common rejection of Sutherland's opinion and their shared hostility to Roosevelt's foreign policy gave powerful support to the inference that the majority's contrary embrace of the opinion stemmed from equally clear but wholly opposed foreign policy commitments. Assistant Attorney General Robert H. Jackson, one of Roosevelt's closest advisers, implicitly recognized that likelihood. Sutherland's opinion, he declared happily, was “a Christmas present to the President.”Footnote ¹³¹

Conclusion: A Pragmatic and Time-Bound Decision

This historical study of Curtiss-Wright suggests several conclusions. The most obvious is that Sutherland did not simply “win the Court” to his own earlier views. Although he did use the opinion to embody certain long-held ideas about sovereignty, nationality, and the extra-constitutional nature of foreign affairs power, his contribution was otherwise limited.Footnote ¹³² Most important, Curtiss-Wright's language about “plenary and exclusive” executive power—the opinion's most distinctive, important, and controversial aspect—advanced a constitutional proposition that differed substantially from anything he had previously articulated. That critical language mirrored Hughes's long-established views, and it was most likely attributable to the chief justice, not to Sutherland.Footnote ¹³³

If Curtiss-Wright was not simply the product of Sutherland's own long-held theory, it was also not simply the product of the Constitution, historical evidence, the ideas of the Founders, or established doctrines and precedents. Equally, it was not the unavoidable product of the foreign policy challenges of the mid-1930s or the consensus product of either Congress or the general public. Rather, shaped by those foreign policy challenges, it was most likely the product of two historically specific internal institutional factors: first, Hughes's leadership and considered constitutional views, and second, a bench composed of a majority of justices who, for reasons that varied somewhat from one to another, reached a rough consensus accepting Hughes's views and did so, in significant part, because they agreed on the necessity of independent executive leadership in foreign affairs, the need for an anti-Nazi foreign policy, and the undesirability of mandatory neutrality laws. It was a consensus among seven individuals, and it embraced conclusions that were widely contested in the larger society and that would remain widely contested for another 5 years. Curtiss-Wright's executive power language, then, was an overt judicial intervention in an extended national policy debate that divided both the American people and the legislative and executive branches of the federal government.Footnote ¹³⁴

In forging that majority consensus, Hughes was probably decisive. Inspired by his executive orientation, constitutional convictions, experience as secretary of state, and acrid memories of congressional willfulness and obstructionism, he was most likely the architect of the seven-justice majority and the source of Sutherland's executive power language. Indeed, it seems that in the 1920s, Hughes had in effect already decided the issue Curtiss-Wright presented. Therefore, the foreign policy challenges of the 1930s only spurred his determination to officially announce and affirm the underlying constitutional principles that he so strongly embraced.

Whereas Hughes probably influenced all of the majority justices, he may have had his most decisive effect on Cardozo, Sutherland, and Brandeis.Footnote ¹³⁵ All three respected Hughes and his expertise in foreign affairs, and all three agreed with the underlying anti-Nazi goals of Roosevelt's foreign policy. In order to accept Curtiss-Wright's language about “plenary and exclusive” executive power, Cardozo needed to set aside his long-tempered preference for narrow and fact-based opinions, whereas Sutherland and Brandeis had to modify their thinking even more substantially.Footnote ¹³⁶ Sutherland had to alter his earlier views on foreign affairs law and ignore any worry he might have entertained that “plenary and exclusive” foreign affairs power would accrue to a president he so deeply distrusted. Brandeis had to ignore the injunctions of his avoidance canon, qualify his commitment to legislative primacy, and set aside his deep suspicions of executive power. Sutherland was likely influenced by his English birth and sympathies, the disappearance of the galvanizing political issues that had shaped his pre-Court writings, and his growing fear of Nazi Germany and belief that a new war with England was “almost inevitable.”Footnote ¹³⁷ Brandeis was likely influenced along similar lines by his abhorrence of Nazism and his intense Zionist attachment to ensuring Roosevelt's independence and discretion in conducting American foreign policy. In the circumstances of 1936, all three apparently found Hughes's well-seasoned views sufficient to overcome their varied countervailing concerns.

Regarding the law of the Constitution, this article confirms the common understanding that Curtiss-Wright articulated only an amorphous idea of an independent executive foreign affairs power, and that its language offers no guidance as to either the scope or limits of any such power.Footnote ¹³⁸ As a matter of doctrinal analysis, it would add only one further point. The decisive fact about Curtiss-Wright as a legal precedent is that it presented no issue of unilateral executive action and no claim that individual constitutional rights were infringed. Therefore, on truly critical and open constitutional issues, it quite literally has nothing to say.

Beyond that, however, the article adds a new and different claim. It suggests that the justices may have known exactly what they were doing when they adopted their vague executive power language. They may have accepted language that they knew was both vague and unnecessary—and obviously so—because their goal was not to provide clear and detailed doctrinal guidance but to provide institutional and moral support for the national executive in an ominous and deeply troubled time. They may have decided, in other words, to enhance the executive's position in dealing with Congress and to signal that the Court's opposition to administration policies in domestic areas did not mean opposition to its efforts to meet the dangers that threatened from abroad. Curtiss-Wright, then, may most reasonably be construed not as timeless doctrine but as timely pragmatics.

Thus, as an exceptionally practical, context-determined, and doctrinally amorphous decision, Curtiss-Wright provides no useful guidance in construing the proper scope and independence of executive foreign affairs power. Even if the Court's affirmation of independent executive power was timely and wise in 1936, that fact tells us nothing about the timeliness or wisdom of affirming such independent executive power in other times and circumstances. With the benefit of later experiences, knowledge of changed conditions, and concern over new and different foreign affairs challenges, Curtiss-Wright's sweeping assertion of “plenary and exclusive” executive power is subject to searching reconsideration and open to substantially altered interpretations and applications.

Indeed, the fact that Curtiss-Wright is so doctrinally amorphous—and that it nonetheless continues to be cited and debated by lawyers and judges—highlights two historical facts. One is that over the course of two and one quarter centuries the Court has decided precious few cases that establish clear constitutional rules governing the relationship between Congress and the executive in conducting the nation's foreign affairs. The other is that the conduct of American foreign relations has to an overwhelming extent been the consequence not of judicial decisions but of changing foreign challenges, shifting national politics, responsive actions by key members of the executive and legislative branches, and the practical working relationships that developed in various periods between Congress and the executive.

Understanding Curtiss-Wright as a historical phenomenon also underscores the easy pliability of historical sources when deployed to undergird legal propositions. Sutherland's historical argument about the foreign affairs power was based on a highly selective use of historical evidence designed to support essentially arbitrary assertions about theoretical abstractions. Subsequent scholarship has for the most part rejected it.Footnote ¹³⁹ His opinion remains significant, however, because it demonstrates the malleability of such sources in the hands of those who wish to confect historical foundations for their current policy preferences. Indeed, the Court's expedient acceptance of Sutherland's historical argument demonstrates how the press of times and conditions can make the most dubious originalist claims appear serviceable and, at least temporarily, acceptable.Footnote ¹⁴⁰

Considering Curtiss-Wright historically also highlights the curious but illuminating way that legal arguments and jurisprudential principles mutate over time. Sutherland justified the independent foreign affairs power of the executive on the basis of international law and its principles of sovereignty and nationality.Footnote ¹⁴¹ In contrast, contemporary advocates of executive power—who often cite Curtiss-Wright—tend to reject international law and its principles as proper sources for constitutional interpretation.Footnote ¹⁴² Such a transformation in the grounds of legal argument has little to do with either the constitutional text or authoritative legal sources, but demonstrates, instead, the changes that occur in constitutional reasoning over time, the plasticity of legal concepts and assumptions, and the ultimate shaping power of presentist purposes and reigning ideologies.

In the final analysis, then, insofar as Curtiss-Wright has constitutional significance, it is not as an authoritative precedent capable of providing doctrinal guidance, but as an institutional artifact that illustrates some of the constitutional characteristics of American government. It reveals the power of social context to shape the Court's work, the critical importance of the specific individuals who occupy its bench and the varied policy judgments they make, and the complex possibilities that inhere in the Constitution's structure of divided national powers. It illustrates as well the Court's de facto power to act on essentially pragmatic grounds and to intervene at critical times in national controversies. Curtiss-Wright is thus a doubly troubling precedent, not only proclaiming a sweeping and amorphous de jure power in the executive, but also exemplifying an undefined and discretionary de facto power in the judiciary.