Curtiss-Wright is Back: The President as the "Sole Organ of Foreign Affairs"

Why should an otherwise boring Supreme Court opinion Tuesday in Pasquantino v. U.S. on the applicability of federal “wire fraud” statute to activities involving avoidance of foreign tax laws (via SCOTUSBlog) affect our understanding of the President’s foreign relations powers?

Because Justice Thomas’ opinion for the Court casually cites the legendary United States v. Curtiss-Wright case for the proposition that the President is “sole organ of the federal government in the field of international relations”.

Although it may seem obvious, the Curtiss-Wright citation is actually quite controversial because it is often used to imply Presidential supremacy over all matters related to foreign affairs ranging from the interpretation of treaties and customary international law to, as we have seen recently, the intersection between state law and foreign policy.

As scholars have pointed out, the original source of the Curtiss-Wright “sole organ” language is John Marshall, but not when Marshall was Chief Justice and well after the Constitution was ratified. As such, it doesn’t actually reflect any evidence of the original intent of the Constitution’s framers. So by citing it as he does here, Justice Thomas is, to some degree, resurrected this broad view of Executive power, which hasn’t been cited in a majority opinion by the Court since the early 1980s.

In this case, Justice Thomas uses this citation to justify ignoring the traditional common law revenue rule that courts would adopt to avoid enforcing the foreign revenue laws. Because the executive branch has brought this prosecution, Justice Thomas argues, the Court can assume that “the Executive has assessed this prosecution’s impact on this Nation’s relationship with Canada, and concluded that it poses little danger of causing international friction.”

This seems right to me, but isn’t that always the case whenever a court considers a prosecution involving a foreign revenue law? Such a prosecution is always brought by some part of the executive branch. Does that automatically mean all foreign policy issues are solved?

In any case, Justice Thomas’ casual citation of the “sole organ” language suggests that there is still broad support on the Court for strong deference to the President for all matters involving foreign affairs. We’ve certainly seen this in deference to the President’s ability to preempt state law. We’ll see if this deference extends to, say Presidential orders implementing international court judgments (a la Medellin) or Presidential conduct of military commission trials (Hamdan v. Rumsfeld). I’m sure I’m reading too much into this, but the revival of Curtiss-Wright may be a clue of how these other cases will turn out.