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United States v. Curtiss-Wright Export Corp., 299 U.S. 304; 57 S. Ct. 216; 81 L. Ed. 255 (1936)

United States v. Curtiss-Wright Export Corp., 299 U.S. 304; 57 S. Ct. 216; 81 L. Ed. 255 (1936)

Facts—Curtiss-Wright Export Corp. sold armaments to Bolivia, a country then engaged in armed conflict in the Chaco region in South America the company was charged with violating the joint resolution of Congress empowering the president to forbid the sale of any articles of war to countries engaged in armed conflict if this prohibition of sale would promote peace between the combatants. The president issued such a proclamation and made violation of it punishable as a crime.

Question—Is this joint resolution of Congress an illegal delegation of legislative power to the president?


Reasons—J. Sutherland (7–1). “It is important to bear in mind that we are here dealing not alone with an authority vested in the president by an exertion 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. It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, 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. . . .

“Practically 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. . . . A legislative practice such as we have here, evidenced not by only occasional instances, but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined. . . .”

Note—Curtiss-Wright is often linked to Missouri v. Holland, 252 U.S. 416 (1920) in terms of foreign policy and treaty powers. A good deal of Curtiss[1]Wright is expansive and dicta, but, except for the inherent power doctrine, more clearly noted in In re Neagle, 135 U.S. 1 (1890) and modified in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Court has not repudiated its language. The War Powers Act of 1973 is still another attempt to contain Curtiss-Wright. Article 1, Section 8 clearly sets out Congress’s delegated powers. Congress can use or not use its powers but cannot violate the axiom delegata potestas non potest delegari—delegated power cannot be redelegated. But a delegated power is possible in which Congress sets up the objective and then authorizes an administration or commission to carry it out and allows an administrator to determine and act when certain conditions exist.

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