In light of Biden’s new position as president, I think it’s about time to introduce or re-introduce you all to the “sole organ doctrine” and the related Curtiss-Wright (1936) Supreme Court case.
The “sole organ” doctrine and the Curtiss-Wright (1936) case fundamentally altered and expanded the power of the executive and has since established an entirely new form of executive power as it relates to the Constitution and the other branches of government.
I rely exclusively on the Constitution when assessing the government and government action. Trump and Biden’s actions as president fall largely within the confines of judicial precedent (NOT the Constitution) and are no different than the actions of many of their predecessors. So, read this less as a critique of specific presidents, and more as a critique of the way the Curtiss-Wright case forever transformed executive power in 1936.
Also, please appreciate the fact that there is a lot to unpack here; but once you understand these obscure topics, your outlook on executive power and potential power will be permanently altered. So, hunker down, grab yourself a coffee or cup of tea, and don’t be surprised if you need to read this post through a few times to understand—and you NEED to understand.
The Constitution and the Executive
It’s important to assess any government activity through the lens of the Constitution. So, before I dive into what the “sole organ” doctrine is, let’s review what the Constitution says about executive power.
The executive branch is supposed to execute the already existent law that has been written by the lawmaking or legislative branch of government. Hence, the executive does not make law but does enforce the law.
Article II of the Constitution says: “The executive power shall be vested in a President of the United States of America” and that the president “shall take care that the laws be faithfully executed”.
Even more relevant, Article II of the Constitution says that 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 States” and 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”.
Notice the words in bold. Treaties are supposed to be written and entered into with the advice AND consent of Congress, specifically the Senate. In other words, treaties are made—a form of lawmaking—by both the executive and legislative powers. This treaty making power is shared and not exclusive, allowing for a proper balance of powers.
From the founders perspective, states, while not entirely separate nations, still do operate as individual nations and should have a say in treaties or ambassadors or any other foreign relationships the country as a whole chooses to enter into. Hence, the requirement for the Senate (the branch whose members were originally voted on by the state legislatures until the passage 17th Amendment) to approve all treaties and ambassadors etc into which the president chooses to enter.
The following is a brief summary of Constitutional delegation of war and foreign affairs’ powers to the executive and legislative branches:
- The President and the Senate share the treaty power.
- The President receives ambassadors from other countries, but U.S. ambassadors must be approved by the Senate.
- Congress has the power to declare war, raise and support the military forces, make rules for their regulation, provide for calling up the militia to suppress insurrections and repel invasions, and decide the organization and disciplining of the militia.
- Congress has the power to lay and collect duties on foreign trade, regulate commerce with foreign nations, and establish a uniform rule of naturalization.
I’m honing in on the war and foreign affairs’ powers because they are relevant to the “sole organ” doctrine as well as the Curtiss-Wright (1936) case. In order to understand what these two concepts mean, you first need to understand what the Constitution says about them. So, the most important Constitutional concept for you to digest is this: a treaty is a law and cannot be made exclusively by the president. Treaty making is a shared power between Congress and the president. Beyond that, it should be rather obvious that Congress handles most other issues regarding foreign affairs and war—-with the help, sometimes, of the executive as the Commander and Chief.
It’s critical, as you read these Constitutional powers, to have a clear and solid foundation in political theory so that you know why each power is delegated as it is. Keep up with the posts I write for my Theory and the Framers section so that you can build a theoretical foundation for yourself. The framers had a legitimate and carefully thought out justification and reason for the ways they delegated power, and their justifications are essential to understanding American government.
Alright, we’ve made it this far! Let’s move on to the “sole organ” doctrine. This is when things start to get intriguing.
The “Sole Organ” Doctrine
The “sole organ” reference was first used on the floor of the house by then Representative John Marshall (who later became Chief Justice John Marshall) in 1800. He was attempting to defend the sitting President John Adams and said the following sentence: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations”.
If you’re like me, you’ve been scratching your head this whole time trying to figure out what on earth a “sole organ” is. Hopefully, this sentence puts the concept in context. Representative Marshall is saying that the president is the lone actor representing the United States government in foreign affairs and is the country’s only “representative with foreign nations”.
Does “sole organ” make sense now? It’s not overly complex once it’s been spelled out, but until now, the term has likely bounced around in your head relentlessly as you tried to figure it out.
So, context is essential here. The Marshall quote sounds like Representative Marshall is arguing for an independent and extra-constitutional presidency (if he was, it really wouldn’t matter, as debates on the House floor do not affect government in fundamental ways). He was not.
He was arguing for anything but that.
(I’m relying heavily on a fantastic article by Louis Fisher, entitled “The Law: Presidential Inherent Power: The ‘Sole Organ’ Doctrine” to help me explain this concept to you. If you want a more detailed, thorough, albeit complex, explanation, please do read it.)
Members of Congress were up in arms because President Adams had turned over to England someone charged with murder. Congress said that he should be impeached for using more power than he Constitutionally possessed and for encroaching on the judiciary’s power.
However, Representative Marshall argued that President Adams was not writing a new law by handing over this murderer to England; rather, Marshall said, Adams was implementing an already written law and simply carrying out his Constitutionally assigned duty. In other words, Marshall was not saying that the president was the “sole organ” charged with writing treaties, but rather he was the “sole organ” tasked with implementing the treaties (Fisher 2007).
Here’s the story. Congress, along with Adams, had written a treaty called the Jay Treaty. In Article 27 of the Jay Treaty, Congress and Adams wrote that the United States and Great Britain would “deliver up to each other ‘all persons’ charged with murder and forgery” (Fisher 140 2007). So, when Adams chose to turn over to England an individual charged with murder, he did so under the direction of Article 27 of an already existent Congressional law.
Representative Marshall was careful in his language to make clear that the president’s job was simply to execute the already existent law…but also emphasized that the president was the “sole organ” charged with doing so. Make sense?
Here’s the “sole organ” phrase in full context:
“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.
He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.
He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.
…Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the executive department to execute the contract by any means it possesses”.
(Fisher 141 2007)
Notice here that Marshall is not arguing for a president with power exclusive to him. In fact, Marshall emphasizes that Congress is the governing body that must “prescribe the mode”. It is then left to the president, as the sole organ, to execute whatever mode has been agreed upon. Marshall knew quite well the fear that the founders had of an executive with exclusive power, especially relating to foreign affairs and war (this is an entirely separate realm of information that I can venture into another time).
So, the point here being, the first use of this “sole organ” doctrine is in reference to the president acting as the “sole organ” when executing the law. There is nothing game-changing or power-expanding here, which should make you all the more curious.
Curtiss-Wright and the Chaco War
Fast forward a little over a hundred years to 1936. I’m going to set the stage.
The Chaco War in South America was causing concern in the United States government about possible escalation of conflict in South America. The Chaco War was a border war between Bolivia and Paraguay over a piece of land called the Chaco region. Numerous private arms dealers were selling guns, ammunition, airplanes and the like to both sides of the conflict and this was something that Congress began to find problematic. So, Congress passed a joint resolution (similar to a bill but typically used when handling a temporary issue) giving the president the power to, via the use of a presidential proclamation (similar to an executive order), prohibit the sale of arms by private arms dealers to the Chaco region. The president was given the power to decide when to prohibit the sale of arms if or when he felt it “may contribute to the reestablishment of peace” in the region (143).
Now, the stage is set. I’m not going to get into the Constitutional questions about whether or not Congress can give the president power to tell a private company who they can or cannot sell to overseas. Just note this and realize that it has also had enduring ramifications.
Franklin Roosevelt was the president at the time and he did issue a proclamation saying: “NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of America, acting under and by virtue of the authority conferred in me by the said joint resolution of Congress…”
Notice that he is careful to establish that the power he has to issue the proclamation was given to him by Congress (Remember, Congress is the only branch of government given the Constitution right to make law on our behalf because we directly elect them.)
Well, the Curtiss-Wright export corporation (a weapons manufacturer) was not so keen on this use of executive force and sold some weapons to the Chaco region anyway. When they were taken to court about it (at this point, the ban had been revoked by another presidential proclamation), Curtiss-Wright argued that the legislative branch had overstepped their Constitutional powers by giving to the president the legislative power to essentially dictate the law as it was prescribed to the Chaco region.
Guess what? Curtiss-Wright won. The district court agreed that the legislative branch had indeed unconstitutionally delegated their lawmaking powers to the president. According to Fisher, “The issue in Curtiss-Wright was whether Congress could delegate legislative power more broadly in international affairs than it could in domestic affairs.” (144).
Remember, delegated power cannot be delegated. This is a fundamental principle first established by John Locke. If we the people gave Congress, via the Constitution, the power to make law, Congress cannot give this already delegated power away to anyone else because it is not theirs to give away. Read my article on Congress for a better explanation.
The Curtiss-Wright (1936) Supreme Court Case
As you may have guessed, this Curtiss-Wright case made it to the Supreme Court. And this is where things get really messy, and interesting.
Justice Sutherland of the Supreme Court was a major influencing voice in the Court’s decision. He was known for a rather loose interpretation of executive power, especially as it relates to foreign affairs, and he also advocated for inherent governmental powers (powers that are neither expressed or implied—they are powers that exist simply because government exists). Pay attention here, because the idea of inherent governmental powers is dangerous, far more dangerous than the already risky implied powers. Sutherland believed that government possessed inherent and extra-constitutional powers “as applied to external affairs and presidential authority” (146). In other words, the executive’s powers when dealing with foreign nations are not derived from the Constitution but rather from the inherent nature of being the executive of a government. Can anyone say arbitrary power?
To give you an idea of what Sutherland believed about executive power, here are excerpts from his book, Constitutional Powers and World Affairs (1919) saying:
“‘Individual privilege and individual right, however dear or sacred, or however potent in normal times, must be surrendered by the citizen to strengthen the hand of the government lifted in the supreme gesture of war. Everything that he has, or is, or hopes to be—property, liberty, life—may be required’ (ibid., 98). Freedom of speech ‘may be curtailed or denied,’ along with freedom of the press (ibid.). Congress ‘has no power to directly interfere with, or curtail the war powers of the Commander-in-Chief’ (ibid., 109).
Statutes enacted during World War I invested President Wilson ‘with virtual dictatorship over an exceedingly wide range of subjects and activities’(ibid., 115). Sutherland spoke of the need to define the powers of external sovereignty as ‘unimpaired’ and ‘unquestioned’ (ibid., 171)” (146)
Do you get the picture? In other words, executive power, when it comes to any foreign affairs’ issue or issue of war, should be unquestioned, dictatorial and complete. Congress should not be able to check it, nor the people or the courts.
So, what do you think Sutherland did when given the opportunity to greatly expand executive power in this Curtiss-Wright case now sitting before him? He did just that.
According to Fisher (and based on Sutherland’s entirely ludicrous understanding of the founding, something I may explain later), Sutherland positioned himself to argue for expansive use of inherent presidential power (Fisher 2007).
You may be thinking now, well, where on earth does the “sole organ” doctrine fit into this whole crazy story?
Right here my friends, right here. Read Justice Sutherland’s argument in favor of the president’s inherent power in foreign affairs.
“It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an assertion 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—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. … congressional legislation which is to be made effective through negotiation and inquiry within the international field 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”
And there it is. The “sole organ” doctrine—-taken completely out of context and used to justify plenary (“plenary”=complete in every respect, absolute) and exclusive power by the president, apart from Congress (Remember, if the government is acting appropriately, the president would have nothing to do unless Congress made law or wrote a treaty for him to execute).
Take heed here. Sutherland has ventured far away from the initial question facing him at the start of the case, which was simply, can Congress delegate legislative power to the executive? Sutherland’s answer is not only can they, but the president already has these powers regardless of what Congress does. He possesses exclusive, independent and non-constitutional powers when handling foreign affairs without Congress delegating these powers. Get that?
Inherent power is Kinglike power. It is power that is unchecked, unconfined and undelegated because it is inherent.
Needless to say, the Court ruled in favor of the US government and against the Curtiss-Wright corporation, and in doing so, changed everything about presidential power. This case established a dangerous precedent and completely released the president from any legislative restrictions or from needing any legal justification for his power as long as it applied somehow to foreign affairs.
And in case you are wondering, the Curtiss-Wright (1936) case has been used over and over…and over again to justify an ever expanding amount of executive war power, treaty making power, and any power you now see presidents using when engaging in armed conflict overseas. The president’s power in this realm is virtually limitless as it is no longer tied to the Constitution because it is considered inherent in the nature of the presidency. He is now considered by the courts the “sole organ” when it comes to ALL issues of foreign affairs.
Many scholars and politicians have bemoaned the consequences of this ruling. One in particular said that the Sutherland doctrine, or the “sole organ” doctrine, “makes shambles out of the very idea of a constitutionally limited government. It destroys even the symbol”(ibid., 497) (150).
This next quote from the Fisher article summarizes the ramifications of this case beautifully: “Curtiss-Wright remains a frequent citation used by the judiciary to support not only broad delegations of legislative power to the executive branch, but also the existence of independent, implied, inherent, and extra-constitutional powers for the president” (151). Does this sound more like the powers of a US president or a tyrant?
As I said at the beginning of this write up, take your time and re-read this as many times as you need. Ask questions to clarify. I’m here for that. But do please read this carefully to make sure you digest all you can about this “sole organ” doctrine. Research it further. See how far it has allowed the executive’s power to grow. I can answer that question in another post but I think I’ve given you plenty here.
I hope this article is a wake-up call to everyone about just how much power and potential power the executive has. This is the power our current president wields. We have to be aware of these era-changing expansions of power (unconstitutionally done by the Court) if we are to try to limit government and fight for liberty.
The Liberty Belle
Fisher, Louis. 2007. “The Law: Presidential Inherent Power: The ‘Sole Organ’ Doctrine” Presidential Scholars Quarterly 37.