ArtI.S1.1.3.1 Foreign Affairs

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation.1 There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs.2 Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President’s authority over military justice.3 Whether or not the President is the sole organ of the nation in its foreign relations, as asserted in Curtiss-Wright,4 a lesser standard of delegation is applied in areas of power shared by the President and Congress.

Footnotes

  1.  Jump to essay-1299 U.S. 304, 319–29 (1936).
  2.  Jump to essay-2299 U.S. at 319–22. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291–92 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dispose of seized enemy property).
  3.  Jump to essay-3Loving v. United States, 517 U.S. 748, 772–73 (1996).
  4.  Jump to essay-4299 U.S. at 319.