Roger Hertog Program on Law and National Security
Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently of the Constitution and was inherent in the United States’ existence as a sovereign, independent nation. Specifically, the Court, at the height of its pre-1937 scrutiny of federal authority, held that a joint resolution delegating to the President authority to criminalize foreign arms sales did not violate the non-delegation doctrine. This was true, Justice Sutherland wrote for the Court, because:
[t]he broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.
The foreign affairs powers existed prior to and independent of the Constitution, as essential sovereign powers:
[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.
Sarah H. Cleveland,
Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs,
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1027