When the Supreme Court Blessed the Imperial Presidency
The story of how classical liberal Justice George Sutherland enabled executive overreach abroad.
In February 2018, Solicitor General Noel Francisco, an appointee of President Donald Trump, argued in support of Trump's 2017 executive order banning immigrants from certain largely majority-Muslim countries. The president enjoys "broad authority" to act in this area, the government insisted in its brief to the U.S. Supreme Court, "when he deems it in the Nation's interest." Among the legal authorities Francisco cited in support of this argument was a 1936 ruling on presidential power known as United States v. Curtiss-Wright Export Corporation.
The same ruling has come up under both of Trump's immediate predecessors as well. In 2007, for example, Solicitor General Paul Clement, an appointee of President George W. Bush, cited Curtiss-Wright while urging the U.S. Supreme Court to deny the writ of habeas corpus to enemy combatants held at the U.S naval base at Guantanamo Bay, Cuba. Three years later, Neal Katyal, the acting solicitor general under President Barack Obama, cited it in a brief to the Supreme Court claiming that the "sovereign" power to "expel or exclude aliens" is "largely immune from judicial control."
It's safe to assume that when the White House wants a free hand to operate in the name of foreign affairs, Curtiss-Wright will be invoked. In many ways, the ruling and its author are at the heart of the American presidency's most sweeping claims to unilateral authority.
The precedent involved a 1934 joint congressional resolution granting President Franklin Roosevelt wide discretionary power to stop U.S. firms from selling arms to Bolivia and Paraguay, which were then involved in a conflict known as the Chaco War. Roosevelt wielded this power via presidential proclamation.
Two years later, the Curtiss-Wright Export Corporation was indicted for selling arms to Bolivia. The company fought back, arguing that Roosevelt's proclamation was rooted in an unconstitutional delegation of legislative power to the executive branch. In other words, the argument went, if the federal government wants to prohibit the sale of arms to a particular country, then Congress must pass a statute to that effect. Lawmaking by presidential fiat is not constitutionally sufficient.
But the Supreme Court took a very different view of the matter. "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power," declared the majority opinion of Justice George Sutherland, but also with the "plenary and exclusive power of the President in the field of international relations—a power which does not require as a basis for its exercise an act of Congress." When that sort of executive power is at stake, Sutherland wrote, the president must be afforded "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."
Advocates of expansive presidential power have been trotting out Curtiss-Wright ever since. Indeed, it has proven to be one of the most influential rulings on executive authority in American legal history.
'Mischievous and Meddlesome Statutes'
On June 4, 1923, the U.S. Supreme Court struck down a state law that banned both public and private schools from educating young children in a foreign language. "The individual has certain fundamental rights which must be respected," the Court held in Meyer v. Nebraska. Among them are the rights of a foreign language instructor "to teach and the right of parents to engage him so to instruct their children." The U.S. Constitution, the Court insisted, protects the liberty of both "those born with English on the tongue" and "those who speak other languages."
It was a libertarian victory—but two members of the Court were not pleased. "I am unable to say the Constitution of the United States prevents the experiment being tried," wrote Justice Oliver Wendell Holmes Jr. in a dissenting opinion. That Holmes wanted to see the state law upheld came as little surprise. A thoroughgoing majoritarian, he believed that the courts owed significant deference to the acts of elected officials. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominant forces of the community, even if it will take us to hell."
The second dissent came from a more unexpected source. Justice George Sutherland was nobody's idea of a judicial pacifist. "If constitutional and orderly government is to endure," Sutherland once told the American Bar Association, "there is but one course for the courts to follow, and that is to set their faces steadily and unswervingly against any palpable violation of that great instrument, no matter how overwhelming in the particular instance may be the popular sentiment."
Sutherland practiced what he preached. During his 16 years on the bench (1922–1938), he often led the Supreme Court in ruling against what he called "the affliction of mischievous and meddlesome statutes." When Pennsylvania tried to stop the spread of corporate-owned chain drug stores by requiring that all pharmacies operating within state limits be owned exclusively by licensed pharmacists, Sutherland voided the law as a gross misuse of government authority. "A state undoubtedly may regulate the prescription, compounding of prescriptions, purchase and sale of medicines, by appropriate legislation," Sutherland observed in Liggett Co. v. Baldridge (1928). But restricting the "mere ownership of a drug store" to licensed pharmacists achieved no such legitimate public health or safety purpose.
He could be equally hawkish in First Amendment cases. In 1934, the Louisiana legislature passed a law requiring all newspapers, magazines, and periodicals with a circulation of 20,000 or more to pay an annual licensing tax of 2 percent on all gross receipts. Ostensibly justified as just another run-of-the-mill tax bill, the measure's true purpose was to suppress unwelcome political speech. It was enacted at the behest of Gov. Huey P. Long, who ordered his cronies in the legislature to use their vast taxing powers to harass and punish his enemies in the press.
Sutherland wrote the opinion that thwarted this attempt at state censorship. The Louisiana law is "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guarantees," he wrote in Grosjean v. American Press Co. (1936). "A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves."
Sutherland was also alert to government misconduct in the criminal justice realm. At issue in the 1932 case Powell v. Alabama was the fate of the so-called Scottsboro Boys, a group of African-American youths who had been falsely accused of raping two white women and then subjected to a rushed sham trial. "We hold that defendants were not accorded the right of counsel in any substantial sense," Sutherland wrote for the Court, reversing the convictions. "To decide otherwise, would simply be to ignore actualities."
Sutherland exhibited distinct libertarian tendencies in these cases. Yet he was prepared to uphold an equally suspect state action in Meyer v. Nebraska. What made him think it was acceptable for the government to prohibit parents from educating their young children in a foreign language?
'The Powers of War and the Rights of Peace'
The answer lies in the origins of the Nebraska law. It was passed in 1919, at the height of the anti-German hysteria that gripped the United States during World War I. Its target was the state's network of Lutheran parochial schools, where both teachers and students commonly spoke German. At the center of the case was a man named Robert Meyer, who ran afoul of the statute by teaching the Bible in German at a school run by the Zion Evangelical Lutheran Congregation. In short, Nebraska prohibited foreign language instruction as a sort of war measure, designed for the express purpose of repressing an internal "enemy" population.
Despite his libertarian leanings in other areas, Justice George Sutherland had no problem with the existence of a law like that. "When the powers of war and the rights of peace become irreconcilable, both cannot stand," he wrote in 1919, "and it requires no argument that in such case the rights of the individual, rather than the common welfare, must be sacrificed."
In effect, there were two faces to Sutherland's jurisprudence. On domestic matters, he was a strict Madisonian, favoring checks and balances, limited government, and judicial action on behalf of individual rights. But when it came to foreign affairs, he became an ardent Hamiltonian, championing the exercise of virtually unlimited war powers and related government authority. "The rules of [constitutional] construction which apply when the government undertakes to deal with internal matters," he declared, "may not apply, in the case of external affairs, in the same way, or to the same degree, or, conceivably, in some cases, may not apply at all."
During World War I, Sutherland observed, Congress "invested the President with virtual dictatorship over an exceedingly wide range of subjects and activities—a grant of power which no free people would tolerate under normal conditions, but which, under the great emergency of war, has properly received unhesitating popular approval."
One of the dictatorial powers was the Espionage Act of 1917, which made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of anti-war speech. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and up to 20 years in prison.
Among those imprisoned by the Woodrow Wilson administration for violating that law was the labor leader and Socialist Party stalwart Eugene Debs, who was convicted after delivering a mildly anti-war speech to a crowd at an afternoon picnic. The Supreme Court upheld Debs' conviction in 1919. "One purpose of [Debs'] speech, whether incidental or not does not matter, was to oppose not only war in general but this war," wrote Justice Holmes in Debs v. United States. "The opposition was so expressed that its natural and intended effect would be to obstruct recruiting."
Sutherland was not yet a member of the Court at that time, but there is little doubt that he would have sided with Holmes had he been on the bench. "Instead of going too far, the [Espionage] Act did not go far enough," Sutherland declared in 1919. "In time of war—when every disloyal word, every profane criticism of our aims, our motives, our uniform, our flag, may, by delaying preparations or reducing the fighting will of the people, contribute to the sacrifice of men upon the battlefields—an unbridled tongue may be as dangerous as a wicked hand."
I've been studying Sutherland for many years now, and I'm still taken aback that the great defender of the First Amendment in Grosjean v. American Press Co. could also voice such moist praise for this censorious law.
'This Vast External Realm'
The two faces of Sutherland's jurisprudence become even more distinct when you examine his judicial behavior during the administration of Franklin Roosevelt. In the contentious courtroom battles of the 1930s, Sutherland led the Supreme Court in both reducing and expanding the powers of the executive branch.
The reduction came first. In 1935, he dealt FDR a severe blow when he held, in Humphrey's Executor v. United States, that the president had exceeded the scope of his lawful authority by firing a member of the Federal Trade Commission for purely political reasons without first obtaining Senate approval. The FTC "cannot in any proper sense be characterized as an arm or an eye of the executive," Sutherland wrote. The agency "must be free from executive control."
Roosevelt was furious about the diminishment of what he saw as his absolute executive prerogative. "I really think the decision that made Roosevelt madder at the Court than any other decision was that damn little case of Humphrey's Executor," Robert H. Jackson, who was appointed to the Supreme Court by Roosevelt in 1941, later reported. "The President thought they went out of their way to spite him personally."
But FDR smiled wide a year later when Sutherland issued his far-reaching opinion in United States v. Curtiss-Wright Export Corp. "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution," Sutherland wrote, "is categorically true only in respect of our internal affairs." By contrast, he maintained, "the powers of external sovereignty" do "not depend upon the affirmative grants of the Constitution." According to Sutherland, "this vast external realm" involves the "plenary and exclusive power of the President as the sole organ of the federal government."
It's hard to imagine a more wholesale judicial endorsement of executive branch authority. Roosevelt, unsurprisingly, was thrilled by the ruling. His successors in the Oval Office have tended to feel the same way.
An Imperial Legacy
In 2013, a journalist from New York magazine asked Justice Antonin Scalia to predict how he will be remembered by future generations. "For all I know," Scalia replied, "50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who's regarded as: 'He was on the losing side of everything, an old fogey, the old view.'"
Sutherland is often remembered in this way, as a sort of judicial relic. And there is a reason for it. On the domestic front, his penchant for constitutional limitations largely fell out of favor in the late 1930s, when the Supreme Court reversed itself and began upholding the legality of numerous New Deal regulations. Sutherland was on the losing side of that fight.
Yet he must undoubtedly be counted on the winning side when it comes to foreign affairs. Not only has his broad vision of wartime government authority been embraced by virtually every president since FDR, but Sutherland's writings have become part of the legal foundation upon which the modern executive branch wields—or attempts to wield—many of its most consequential powers. His blessing of the imperial presidency has shaped the course of American law.