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Sample Answers to Exam, Spring 1997
Question 1
The issues raised in this case highlight many of the age-old debates regarding foreign affairs powers and how they should be interpreted under our Constitution and case law precedent.
In the present scenario, there is a question whether the President (P) is acting beyond his for. affs. powers. While Curtis-Wright has been pointed to as supporting an unchecked executive dissention in the area of for. affs., (this view was also supported by Hamilton), there is an equally strong tide of opinion which purports that the Constitution supports more of a balanced institutional participation theory (Madison supported this view). No one theory seems to have enjoyed total support (indeed, Curtis was cited favorably as recently as 1982 in Toll v. Moreno), thus an analysis must consider varying possibilities.
First of all, the validity of the TIEA must be questioned. While the legislation was passed properly (2 houses passed, presented to P who vetoed and then 2/3 override of P's veto), this court may strike down the legislation if it finds there is controlling int'l law (IL) to the contrary (none indicated in facts except the UN Sec. Co. Resolution -- see below for discussion, so this must be investigated). Although it is generally regarded that Congress can override controlling IL under the later-in-time theory, the courts have also been compelled to construe US law whenever possible to be consistent with IL ("an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains.") Charming Betsy (although it has been argued that Charming has not been applied consistently). In US V. PLO, the court held that "only where a treaty is irreconcilable with a later enacted Statute and Congress(C) has clearly evinced an intent to supersede a treaty by enacting a statute does the later enacted statute take precedence." PLO. The R-3d supports this theory.
Here, it is possible to argue that the TIEA is contrary to the UN Sec. Co. Resolution requiring UN members to avoid any action that would recognize or entrench Israeli control of Jerusalem. The TIEA does not indicate clearly that it intended to violate this IL mandate, nor does it indicate any other IL it intends to supersede (note: question as to UN Sec. Co. Res. as treaty and thus supreme law of land under Art 6 of Constitution, see below for further discussion), thus court may construe the TIEA as inconsistent with IL.
There may also be a question about the validity of the appropriation provision in (b) of the TIEA. While Congress retains the power of the purse (Art 1 § 9, cl. 7), this power is not plenary and limitations on C generally apply to C's power of the purse -- in other words, C cannot use its appropriation power to get around other limits. Lovett (bill of attainder not allowed). These limits have been identified as flowing either from limitation on C directly (internal limits) and external sources flowing from the other branches of govt. (Note also that the appropriation power is placed in § 9 which is limitation on C's powers -- but others say the power of the purse actually flows indirectly from § 8).
Thus, C can decide whether to appropriate $ or not but cannot impose unconstitutional constraints on other branches -- if C can't order it directly it cannot use an appropriation to achieve that impermissible end.
As to cutting off funds for the operation of the US embassies and consulates listed in (b), the first question is whether C has violated an explicit limit on its Article 1 powers (not readily apparent); second is whether there are any limitation from outside (eg, Article 2).
Importantly, history seems to support C action such as this because conditions on grants of aid to foreign countries generally have been upheld as well as how the US should vote on certain UN resolutions, etc. (so C in essence is directing the exec. branch members on how to communicate at these int'l forums) -- such action has never been challenged. Thus this action could be upheld. Finally, many feel the power of the purse is exclusive to C, so in acting to continue the funding the P is acting against C disapproval (so even if concurrent powers, the P power is at its lowest ebb (Jackson concurring Steel Seizure more below).
As for the President acting against the clear dictate of the TIEA, numerous issues are raised. What exactly the "inherent" Presidential powers he relies on are open to interpretation.
The P can make a strong argument that he is acting pursuant to the UN Sec. Co. Res. which gives him authority to act in this manner (although the US abstained from the vote -- but at least they didn't veto the Resolution because this would undermine the P's argument a bit it seems).
Although the P will probably maintain that he already has inherent authority to act as he did (so the UN Res. is nothing special), the court should be aware that another argument has been made that UN Sec. Co. resolutions are different and they might allow the P to act although he couldn't in other situations. This argument has generally been made with regard to the P's unilateral commitment of troops pursuant to UN mandates, but the argument is analogous nonetheless.
First of all, in that C approved the UN charter it has given the P implicit authority to act pursuant to these UN mandates (although the implementing legis. of the Charter should be checked to make sure it's consistent with this argument -- may also get into question over Senate as treaty-maker and thus usurping C's power in this area -- long discussion of this not relevant here --). And second, under the US's IL obligation under the UN charter (which is a treaty and therefore Supreme Law of land, Art. 6), the P must faithfully execute that legal obligation since he is obligated to carry out the charter. (Note: a limit to this is a treaty cannot override the Constitution (see Reid) so must ensure that ignoring TIEA does not violate some constitutional mandate).
History here also supports the P as it did for C. The P's attitude toward the TIEA is very similar to that of preceding Ps toward the War Powers Resolution (WPR). Presidents have consistently claimed that any reports they have filed with C under § 4a of the WPR have been filed "consistent with" not "pursuant to" the Resolution. This is so because they do not want to give the implication that the Resolution is constitutional. Similar to the TIEA, the WPR was passed over President Nixon's veto. Thus, that the P here is acting against the TIEA because he has concerns about the constitutionality of it is not an unprecedated act by a P.
However, a strong argument can be made that because the P is acting against C disapproval his powers are at a low ebb. In Jackson's concurring opinion in the Steel Seizure case he set out 3 categories for when the P can act unilaterally -- 1. Where Congress approves of the action the P's authority is at its strongest, 2 in the zone of twilight (C silent), the actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than an abstract theories of law; and 3 where C disapproves the P's power is at its lowest ebb. Here we are clearly in category 3, but note that category 3 does not say the P has no power to act. Thus, another 3 categories must be considered, that is whether in this realm Congress alone has authority to act, whether the P & C have concurrent authority, or if the P has sole authority. If the P has sole authority it has been argued that congressional disapproval may be ineffective. Based on the foregoing arguments it appears that as to TIEA (a), the P may have sole authority based on the UN Sec. Co. argument outlined above -- or this could be concurrent authority, as to (b) there is strong evidence that this could be exclusive C authority and the P may not be allowed to counter.
If C had been silent on the issue it would be easier to make out a case for the P because case law shows that the P has power to act where C approval is implicit or it has acquiesced (eg, Dames & Moore, US v. Belmont).
As to the court's role in all this, again, a number of issues are raised. Namely, the political question doctrine, standing, and ripeness. All of these theories can actually give the court an out from hearing this case if it should so decide, but as Scalia asserted thru the holding in Kirkpatrick, perhaps the courts should stop taking a back seat in these controversies and reach the merits.
As to ripeness, it seems difficult for the court to decline the case on these grounds since the issue is clearly ripe -- C has voiced its opposition to the P's acts and the P is clearly acting against C's wishes (cf. Dellums v. Bush and Powell concurring in Goldwater).
Importantly, as to the political question doctrine (PQD) and standing, if the court chooses either of these routes, it might be well advised to choose standing because while PQD addresses what issues can be litigated (if it is a PQ no one can bring the action) standing deals with whether the right person is bringing the case. By deciding the case on standing, the broader question is left unanswered and the "right" plaintiff could still bring the action.
The court could rely on any of three views of the PQD: classical, functional, or prudential. Under the classical theory, the ct could claim that the decision is committed to one of the political branches of the govt. The court is actually not abstaining because it is deciding a legal question and as a legal matter the issue is constitutionally committed to the political branches. Commentators contend that the classical view is enjoying a revival lately. Under this theory, the court could decide, tho, who has been allocated the authority to make this decision (just not what the decision should be) -- eg, Durand or the Price Cases.
The functional approach addresses the court's competence to hear the case. These type of cases generally involve matters where the fact-finding is beyond the ability of the court (Crocket v. Reagan) or there are not manageable legal standards (no way of distinguishing the permissible from the impermissible) -- Sanchez-Espinoza discusses this idea. This approach is not advised here because neither of the two situations applies.
The final PQD view is the prudential. In this situation a court will not speak because if the court speaks it may lead to problems (e.g., it might embarrass the other branches, and don't want multifarious pronouncements by various branches on one question). Under this view, the court may know an action is outside legally allowable action, but it won't speak because it doesn't want to embarrass the other branches. Again, this view is not advised (see Scalia & Kirkpatrick at beginning). So if PQD is relied on it should be under the classical view.
Standing provides the best option for dismissing the case. There is a 3 part test for standing: 1. Plaintiff must have personally suffered an injury in fact; 2. It must be traceable to the D; and 3. It must be redressable by the remedies sought. Element #1 would be at issue here, but note that courts have held that Congress Members' have standing to challenge measures that affect their constitutionally prescribed lawmaking powers (note the Supreme Court is reviewing this issue now in Byrd v. Raines). It would have been preferable if both houses of Congress had brought this action, but the Senate as a party is preferable to individual members (because when Congress v. President looks more like a federalism case which this case can hear). Note: this view is opposite Bork's as expresses in his dissent to Barnes v. Kline where he states that the court should not hear these cases unless it is the last resort for individuals -- he feels standing should be used to limit the court's power.
I recommend hearing the case (assuming no contrary ruling from Supreme Court in Byrd!) and say it is a PQ based on classical view. Then the court should rule that as to TIEA (a) the decision is committed to the President and TIEA (b) to the Congress. Then the court plays a role, and each political branch is given authority --
Question 2
I think the WPR should be amended (c). I do not feel it should be left unchanged because serious constitutional questions are presented (eg, 5(C) -- legislative veto not allowed by Chadha) and currently Presidents in essence ignore the WPR (they act "consistent with" not "pursuant to" the WPR and they generally follow it out of good public spiritedness, not because it is legally required). I also do not feel it should be repealed, though, because it fosters inter-branch dialogue and joint decision making. Granted, as it stands now, it is hard to think of a case where the President wanted to use force and the WPR dissuaded him (in fact only one report filed as referred to 4(a)(1) thereby beginning the 60 day clock). Nonetheless, if amended correctly, even Presidents might be more amenable to its application because it would require Congress to be more "on the record" -- thus it would be harder for them to "parachute out" after they get on board (eg, Johnson discovered this in Vietnam) so the President is given some "cover."
Amending the WPR, however, requires a balancing between the need for secrecy and one voice in foreign affairs (especially where hostilities are concerned) and a need for commitment of troops to be handled through the most democratic means (ie, Congress who represents the people.). A number of suggestions have been made for amending the WPR in order to make it more effective:
1. Define hostilities more precisely. The courts as well as the political branches have long struggled over how to define this term and to decide whether war (and thus Congress' power to declare war) is only a sub-set of hostilities thus leaving certain engagements up to the President (eg, Bas v. Tingy). If a clearer distinction between war and hostilities (police actions possible) can be made, then the remainder of these recommended changes would be more useful. One way to distinguish a war is based on legal approach=declaration of war needed, otherwise not a war; but a factual-basis approach to the definition seems more workable: one should look to the scope of the war -- does it involve the whole country, what's the extent of the engagement (Bas expresses this by saying "imperfect wars" (hostilities) are limited to places, persons and things).
2. Define what consultation should involve and who should be involved. Currently the WPR is very ambiguous on this subject. While Bush consulted with the chair of the House For. Affs Committee with regards to US involvement in the Middle East (Desert Storm) -- was this really adequate? Not only more definition as to who needs to be consulted is needed (there is a preference for 2nd opinions or an outside take on the issue (the extreme example being the cameraman in the oval office offering advice)), but also when the consultation should occur. Currently the trigger for consultation is the same as for reporting, but it seems that the consultation should come sooner. Such a change is consistent with the widely accepted policy that the framers intended to make it difficult to engage in foreign entanglements (used for treaty-making as well) -- so making it difficult to go to war is achieved by involving more of the govt. institutions (again, this must be bounded by a concern for secrecy).
3. A system of prior restraints should be used: the WPR should specify in what cases the President can act unilaterally (eg, invasion of US (although framers guarded against this through saying "declare" war not "make" war), pursuant to UN peacekeeping Resolution, to rescue nationals, protect US vessels) and in all other cases it would be prohibited (apparently the Senate version of the WPR had enumerated like this, but the House version was adopted and it did not). Importantly, if the enumeration is too narrow, it will tie the hands of the President, but if it is too broad then there will be no change in essence. If done properly, action such as Panama would still be allowed but would perhaps be subject to consultation depending on the timing, for example. One premise for why enumerations is needed is because the President has too much initiative under the 60 day limit -- it is possible/likely that Congress will not step up to the plate after 60 days to take the troops out -- Again, congress needs to be on the hook more once engagement has begun.
4. Enforcement mechanisms -- currently there are no teeth to the WPR (other than § 5 which has serious constitutional questions (see beginning of discussion). One option would be to cut-off appropriations if troops are not withdrawn after 60 days (within reason -- this may be hard to implement in reality since Congress people's constituents' children will be off in these far away places and need to be protected). But Congress could incorporate such a mechanism into the WPR because of its power of the purse. Also, enhanced judicial review would be helpful. Of course, this would require the courts adjusting their ripeness theory applied in Dellums. But, a strong argument can be made that judicial involvement is warranted since it is a fundamental question about which branch has authority -- if the court determines Congress has the power, then the court is enforcing a legal right of Congress based on constitutional power. If the President initiates hostilities (especially in contravention to the above changes outlined under "prior restraints") then he will have exceeded his constitutional power.
A final point on amending the WPR. One view holds that it is not actually a problem in drafting that leads to the ineffectiveness of the WPR, but rather a lack of political will by Congress -- it doesn't really want to decide when hostilities should be cut-off (Somalia is the only time Congress passed an act saying troops will be out by a certain time). So, by enhancing consultation provisions and the other recommendation here, Congress will have to step up to the plate -- if they want to "reassert its Constitutional power" then it must be willing to engage and go on the record -- ie, no more parachuting out.
Question 3
I think Ackerman and Golore have a stronger argument than Tribe and Slaughter (although I found Slaughter's argument more convincing than Tribe --). I believe this mainly, though, because Tribe's argument especially was too formalistic and textually bound which is not realistic in today's foreign affairs arena.
First of all, I do not accept Tribe's argument that treaty-making is unique to certain types of int'l agreements such as Uruguay. He contends that there are Article 2 treaties and other international agreements, and the two are mutually exclusive. But the line between the two is difficult to define -- from a pragmatic standpoint, there's already enough grey area in the for. affs arena so clouding the issue even more by trying to draw an indistinguishable line is not convincing. Tribe also contends that the framers intentionally excluded the House of Reps. from Article 2 which was counter-balanced by saying 2/3 of Senate is need for advice and consent. But note: the Senate only gives advice and consent, ie, the President makes the ultimate decision whether to ratify a treaty or not -- so, this puts much power in the President's hands. If the President is willing to pursue a Congressional-Executive agreement, thereby involving more of the political branches and also a binding method, he should not be discouraged from so doing. Ackerman, on the other hand, argues that the Senate has no constitutional monopoly over international agreements -- there is no "only" language in the treaty provision so it provides one alternative that the President may use, in his judgment, if he feels it is appropriate. He also contends that all int'l agreements can be entered into by either Article 2 treaties or Article 1 -- they are equivalent. (But Ackerman would probably argue that sole Exec. Agreements are only valid with respect to a certain sub-set of int'l agreements (eg, sole E.A. could not be used to enter Uruguay).
Ackerman's argument seems more valid. Edwards v Carter says lawmakers have authority, but alienation of property (in that case the Panama Canal) is not exclusive to Article 1 and other authorities may address the issue. So likewise, if there is some basis in Article 1 then lawmakers should not be excluded (Article 1 gives express authority for regulating foreign commerce). And sometimes only the treaty-making authority will be appropriate (with implementing [legislation] from Congress if needed) -- Missouri v. Holland. so, in some places lawmakers can act and not treaty-makers (eg, revenue) and vice versa (Missouri), and other times, where they overlap, either can act.
Given that more treaties today are affecting domestic issues, it seems logical to have Congress more involved (especially since if implementing legislation is needed they will be involved at some point anyway). Also, if Congress can pass legislation to change or abrogate a treaty, why shouldn't they be involved in the treaty process when appropriate -- Moreover, the Senate's role has been diminishing over the years, especially now since obligatory ratification is no longer the rule internationally. Finally, congressional delegates are often in the treaty negotiating room trying to influence negotiations (Congress State Dept. negotiator). Thus, I feel Ackerman's argument more adequately reflects and addresses the contemporary reality of the US entering int'l agreements. It is also constitutionally sound and supported by case precedent.