TO: Prof.

Emerson Baez
FROM: Rabelais Medina
DATE: November 3, 14
RE: Limitation of the United State Presidents Foreign Relations Powers
FACTS
Presidents Power to Foreign Relations
1. Constitutional Grant
The Presidents constitutional grants with regard to foreign
affairs are stated in the following provision excerpts: a) ARTICLE
II. Section 1. The executive Power shall be vested in a President
of the United States, b) ARTICLE II. Section 2. The President
shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into
the actual Service of the United c) States xxx He shall have
Power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present
concur and he shall nominate, and by and with the advice and
Consent of the Senate, shall appoint Ambassadors and other
public Ministers and Consuls and all other Officers of the United
States, whose Appointments are not herein otherwise provided
for d) ARTICLE II. Section 3. he shall receive Ambassadors and
other public Ministers he shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the
United States.
2. Initiation (President v Congress)
The president or the Congress can initiate foreign relations.
Constitutionally, foreign policy powers are divided between
president and the Congress, but the Congress, and the country
as a whole, often defers to the presidents wishes because the
office has come to represent the country as a whole when
dealing with the rest of the world.1 The President or the executive
branch can make foreign policy through: 1) responses to foreign
events, 2) proposals for legislation, 3) negotiation of international
agreements, 4) policy statements and 5) policy implementation.2
The Congress can make foreign policy through: 1) resolutions
and policy statements, 2) legislative directives, 3) legislative
pressure, 4) legislative restrictions/funding denials, 5) informal
advice and 6) congressional oversight.3
1 Genovese, M. et al (2005). The Presidency and the Law. New York, N.Y. PALGRAVE
MACMILLAN. p163. Print.
2 Grimmett, R. (1991). Foreign Policy Roles of the President and Congress. CONGRESSIONAL
RESEARCH SERVICE REPORTS (CRS) AND ISSUE BRIEFS
3 Ibid. 2.

3. Cases Involving the Presidents exercise of Foreign Relations

Powers.
a. United States v. Curtiss-Wright Export Corporation
In this case, the joint resolution of Congress giving the president the
power to halt arms shipment to warring countries Paraguay and Bolivia
was challenged on grounds of undue delegation of powers. The court
held that the resolution was valid because historical analysis shows
that the president is vested with the powers regarding foreign affairs.
The delegation is also valid since the Executive has the
instrumentalities to properly determine the state in which the United
States with regard to foreign relations. The court said [p]ractically
every volume of the United States Statutes contains one or more acts
or joint resolutions of Congress authorizing action by the President in
respect of subjects affecting foreign relations, which either leave the
exercise of the power to his unrestricted judgment, or provide a
standard far more general than that which has always been considered
requisite with regard to domestic affairs.4
b. United States v. Belmont
At the heart of this case is the issue of the validity of the agreement of
the United States and the Soviet Union in 1933. The type of agreement
entered into is an executive agreement, which does not require
Senates approval unlike treaties. The court upheld its validity
accelerating the use of executive agreements by presidents.5
c. U.S. v. Guy W. Capps, Inc.
When the executive officials of Canada and the United States entered
into an agreement to ban importation of potatoes into US, Guy Capps
protested it upon his prosecution for the offense of violating the
prohibition. The Federal courts struck down its validity on grounds that
it is not within the powers of the President to regulate foreign
commerce. The supreme court held that [t]he duty of the President to
see that the laws be executed is a duty that does not go beyond the
laws or require him to achieve more than Congress sees fit to leave
within his power. As stated, the regulation of imports from foreign
countries is a matter for Congress and, when Congress has acted, the
executive may not enforce different regulations by suing on contracts
made with reference thereto.6
d. Zemel v. Rusk
This case tackles the validity of the Executives denial of permission to
an American to travel to Cuba for the reason that the US and Cuba,
under the leadership of Fidel Castro, are in a state of hostility. The
American, invoking his rights under the First Amendment, assaulted
the State departments authority to deny such travels. It was also
4 United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 324.
5 Ibid. 1. P 167.
6 US v Guy W. Capps, Inc. 204 F.2d 655 (4th Cir. 1953)

assailed on the ground that it was not legislated by the Congress. [The
court upheld the validity on the grounds 1) that it was authorized by
past congressional enactments and 2) that the congress has implicitly
supported the action by the absence of any action]. 7 [B]ecause of the
changeable and explosive nature of contemporary international
relations, and the fact that the Executive is immediately privy to
information which cannot be swiftly presented to, evaluated by, and
acted upon by the legislature, Congressin giving the Executive
authority over matters of foreign affairsmust of necessity paint with
a brush broader than that it customarily wields in domestic areas. 8It
however said that [t]his does not mean that simply because a statute
deals with foreign relations, it can grant the Executive totally
unrestricted freedom of choice. However, the 1926 Act contains no
such grant. We have held, Kent v. Dulles, supra, and reaffirm today,
that the 1926 Act must take its content from history: it authorizes only
those passport refusals and restrictions which it could fairly be argued
were adopted by Congress in light of prior administrative practice.
Kent v. Dulles, supra, at 128. So limited, the Act does not constitute an
invalid delegation. . . .9
e. Goldwater v. Carter
The issue at bar in this case is whether or not the termination of a
treaty by the President requires the concurrence of the Senate. The
court was divided on the issue since the constitution is silent on the
matter. Their division however, in effect, technically validated President
Carters termination of the United States treaty with Taiwan. Justice
Powells contention on the matter states that [t]he Judicial Branch
should not decide issues affecting the allocation of power between the
President and Congress until the political branches reach a
constitutional impasse. Otherwise, we would encourage small groups
or even individual Members of Congress to seek judicial resolution of
issues before the normal political process has the opportunity to
resolve the conflict.10 Justice Bernnan dissented, stating that the
issues is not political in nature and that the previous jurisprudence
states that the Constitution commits to the President alone the power
to recognize, and withdraw recognition from, foreign regimes11.
f. Dames & Moore v. Regan
The Supreme Court held in this case that the Congress failure to act
tacitly on the matter authorized the executive agreements of the US
with Iran on the suspension of American financial claims against Iran. It
held, [t]o the contrary, we think both the legislative history and cases
7 Ibid. 1. p 172.
8 Ibid.
9 Zemel v Rusk, 381 U.S. 1 (1965)
10 Goldwater v. Carter 444 U.S. 996 (1979)
11 Ibid.

interpreting the TWEA fully sustain the broad authority of the

Executive when acting under this congressional grant of power.
Although Congress intended to limit the Presidents emergency power
in peacetime, we do not think the changes brought about by the
enactment of the IEEPA in any way affected the authority of the
President to take the specific actions taken here. 12 Additionally, the
Supreme Court quoted Justice Frankfurter in Youngstown, 343 U.S., at
610611, Past practice does not, by itself, create power, but longcontinued practice, known to and acquiesced in by Congress, would
raise a presumption that the [action] had been [taken] in pursuance of
its consent . . . . 13
g. Haig v. Agee
When former Central Intelligence Agency (CIA) personnel revealed the
identities of other CIA agents around the world, he was restricted to
travel to other countries. The court held the validity of the prohibition
banking on the reason that he is a threat to national security. The court
saidthat
the Court recognized congressional acquiescence in
Executive policies of refusing passports to applicants participating in
illegal conduct, trying to escape the toils of the law, promoting
passport frauds, or otherwise engaging in conduct which would violate
the laws of the United States. Agee also contends that the
statements of Executive policy are entitled to diminished weight
because many of them concern the powers of the Executive in
wartime. However, the statute provides no support for this argument.
History eloquently attests that grave problems of national security and
foreign
ISSUE
Scope and Limitations of powers of the president
DISCUSSION
As stated above, presidents power over foreign policy matters is
greater than that over domestic policy, a relationship often referred to
as the two presidencies.14
Reviewing the United States history and jurisprudence it can be
inferred that
the courts normally yield to presidential preferences in foreign policy,
even though there is good reason to believe that the Constitutions
founders, and the document itself, did not contemplate such a onesided arrangement.15 During the Colonial period, those powers were
possessed exclusively by and were entirely under the control of the
12 Dames & Moore v. Regan, 453 U.S. 654 (1981)
13 Ibid.
14 Ibid. 1.
15 Ibid. 1.

Crown. By the Declaration of Independence, the Representatives of

the United States of America declared the United (not the several)
Colonies to be free and independent states, and as such to have full
Power to levy War, conclude Peace, contract Alliances, establish
Commerce and to do all other Acts and Things which Independent
States may of right do.16 The Union existed before the Constitution,
which was ordained and established among other things to form a
more perfect Union. Prior to that event, it is clear that the Union,
declared by the Articles of Confederation to be perpetual, was the
sole possessor of external sovereignty, and in the Union it remained
without change, save in so far as the Constitution in express terms
qualified its exercise. The Framers Convention was called and exerted
its powers upon the irrefutable postulate that though the states were
several their people in respect of foreign affairs were one. . . 17. Thus
the state in its exercise of sovereignty has the power to exercise
foreign relations through its executive or congressional departments.
CONCLUSION
Scope and Limitations
As was illustrated in the above discussed cases, it can be inferred that
the powers of the President in the foreign affairs is valid in cases such
as but not limited to a) when there is a valid delegation of powers from
the congress to exercise foreign relations powers, b) on executive
agreements that does not need Senates approval, c) when there is an
absence of action to nullify said Executive action from the Congress, d)
upon the termination of a treaty, e) when history supports the actions
and f) when national security is at stake. However the Presidents
power is not to be construed as infinite. It cannot be exercised when
there is an encroachment on the powers of the other departments as
stated in the Constitution. The courts on a case-to-case basis will
decide these encroachments.

16 United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936)

17 Ibid. 7.