Plenary v. Concurrent Powers

1. Plenary v. Concurrent Powers Plenary Powers: powers granted to a body in absolute terms, with no review of, or limitations upon, the exercise of those powers. Concurrent Powers: powers shared among two or more bodies, allowing checks or limits on the exercise of those powers

2. DiplomacyPlenary Powers/ Concurrent Powers

3. War Powers (all plenary)

4. An Early Dispute, Pacificus vs. Helvidius In 1793, George Washington issued a Proclamation of Neutrality in the war between France and Great Britain. Alexander Hamilton (Pacificus), then Sec’y of Treasury, wrote that while Congress has the sole right to declare war, it is "the duty of the executive to preserve peace till war is declared.“ James Madison (Helvidius), then a member of Congress, criticized Washington for doing so without authorization by Congress

5. Little v. Barreme(1804) Congress authorized the President to order the navy to stop and search any American ship they believed was bound for a French port; if they found evidence the ship was bound for France, they could seize it and keep half of the cargo for themselves. When the Secretary of the Navy issued the orders to his ship captains, he expanded the authorization to include ships sailing from a French port and ships that appeared foreign but were either actually American or carrying American cargo.

6. Little v. Barreme(1804) The Navy seized a Danish ship sailing from France without American cargo. Capt. Little wished to keep his portion of the proceeds from his seizure, while Barreme, the ship’s owner wanted his cargo back, plus damages. C. J. Marshall, and an unanimous court, found the seizure illegitimate because Congress had not explicitly authorized seizures of non-American vessels bound from France. Where Congress was silent, the President’s authority ended.

7. Arguments For Presidential Dominance 1) Unity and speed - single actor with clear responsibility and authority - no need to develop consensus, thus able to act quickly 2) Control of bureaucracy - Executive departments (including military) are global and possess the information, expertise, and ability to implement policy 3) Big Picture - Presidents, esp. 2nd term, have fewer parochial concerns, serve whole nation

8. Arguments For Congressional Dominance 1) Deliberation - quick decisions may be wrong and consensus is necessary for unified national effort 2) Distance from Bureaucracy – Congress less like to be captive to groupthink found in State Dept, intelligence agencies, or military 3) Representation –Congress closer to people, more accountable, less likely to discount objections

9. The War Powers Resolution President deploys troops to hostile area President has 48 hours to notify Congress Congress must pass resolution authorizing deployment within 60 days If Congress does not authorize deployment, troops must be withdrawn within 30 days

10. 3 Types of Diplomatic Agreements 1) Treaties 2) Executive Agreements 3) Congressional-Executive Agreements

11. Treaties v. Executive Agreements Between 1789 and 1839, U.S. was party to 60 treaties and 27 executive agreements Between 1939 and 2009, U.S. was party to ~1,100 treaties and >16,500 executive agreements

12. U.S. v. Belmont (1937) FDR enters into Litvinov Assignment with Soviet Union, recognizes USSR as legitimate government over former Russia in 1933 Belmont was banker who held assets of Russian firm nationalized by Soviet government, refused to repatriate funds Belmont claimed that executive agreement not sufficient legal authority to override NY banking laws

13. U.S. v. Belmont (1937) “The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted.” (G. Sutherland)

14. Treaty-Making Process 1. Secretary of State authorizes negotiation and U.S. representatives negotiate 2. Representatives agree on terms and (authorized by Sec’y of State) sign agreement 3. President transmits agreement to Senate 4. Senate Foreign Relations Committee considers treaty and reports to Senate 5. Senate considers & approves by 2/3 majority 6. President declares treaty to be in force

15. Executive Agreement-Making Process 1. Secretary of State authorizes negotiation and U.S. representatives negotiate 2. Representatives agree on terms and (authorized by Sec’y of State) sign agreement 3. Agreement enters into force 4. President transmits agreement to Congress

16. Attempts to Rein in Executive Agreements Bricker Amendment. Proposed in 1951 as response to Truman’s agreement at Yalta. Required implementing legislation "which would be valid in the absence of treaty" before a treaty had effect within the U.S.; and granted Congress the authority to regulate all executive agreement Opposed by Eisenhower administration; a substitute version (George Amendment) fell 1 vote short in Senate in 1954

17. Attempts to Rein in Executive Agreements Case Act of 1972 requires the Sec’y of State to send to Congress within sixty days the text of "any international agreement, other than a treaty," to which United States is a party. If president decides that publication will compromise national security, he can transmit it to the Senate Foreign Relations Committee and the House Committee on Foreign Affairs under an injunction of secrecy. Regularly ignored by presidents since 1972.

18. Reid v. Covert (1957) Court invalidated an executive agreement between U.S. and Britain giving U.S. military courts jurisdiction over crimes committed by U.S. military personnel and their dependents Covert, a soldier’s wife, killed her husband and was tried under the Code of Military Justice. She argued that Congress’ power to make rules for government of military could not apply to civilians

19. Reid v. Covert (1957) Court accepted Covert’s argument, striking down the agreement as unconstitutional “The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.” “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”

20. U.N. Charter, Article 2(4) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

21. U.N. Charter, Article 51 Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations

22. The War Powers Resolution Response to unilateral presidential role in Vietnam policy Passed in 1973 over Nixon’s veto Never recognized by any other American president

23. War Powers Resolution Congress Executive Commander-in-Chief Executive power (as principle) Power to Declare War Raise and support armies/navies To make Rules for the Government and Regulation (of such)

24. The “Democratic Peace” Argument Immanuel Kant, “Perpetual Peace” (1795): constitutional republics would be less warlike because majority would not authorize war unless necessary for self-defense, unlike monarchs who are indifferent to soldiers’ lives

25. A Counterargument Phillip Bobbitt: "The power to make war is not an enumerated power.“ Congress’ power to declare is a legalism, and should be reserved for “total war” Presidential power includes such executive decisions, Congress’ role is funding

26. United Nations Participation Act of 1945, Sec. 6 (partial) “The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of [the UN] … Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for [in Art. 43 of the UN Charter].”

28. International Powers Denied States in Article I, Section 10 No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal … No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States …

29. International Powers Denied States in Article I, Section 10 No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay

30. U.S. v. Pink (1942) After the U.S. recognized the Soviet Union, the U.S. sued Pink, N.Y.’s Superintendent of Insurance for return of $1 million to the First Russian Insurance Company, a company organized prior to Bolshevik Revolution that had a NY branch. After the Revolution, the Russian government nationalized all insurance companies, making it owner of First Russian’s assets. NY refused to recognize the nationalization as legal.

31. U.S. v. Pink (1942) New York’s action "amounted in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system... No state can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively."

32. Crosby v. National Foreign Trade Council(2000) Massachusetts prohibited state agencies from purchasing with companies doing business in Burma (Myanmar) Congress had also passed legislation imposing trade sanctions on Burma, but with weaker sanctions on companies doing business there Supreme Court strikes down MA law as preempted by Congress in area properly controlled by federal government