The “Sole Organ” Doctrine
The Law Library of Congress
2006-03236 August 2006
Studies on Presidential Power in Foreign Relations Study No. 1
The “Sole Organ” Doctrine
By Louis Fisher Specialist in Constitutional Law
The Law Library of Congress James Madison Memorial Building; 101 Independence Avenue, S.E.; Room LM 240; Washington, DC 20540-3200 Reception: (202) 707-5065 – FAX: (202) 315-3654 www.loc.gov/law/congress
LAW LIBRARY OF CONGRESS August 28, 2006
A Series of Studies on
Presidential Power In Foreign Relations: No. 1: The “Sole Organ” Doctrine
Louis Fisher 1 Specialist in Constitutional Law Executive Summary The Executive Branch relies in part on the “sole organ” doctrine to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall when he served in the House of Representatives in 1800: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 2 The Supreme Court, in United States v. Curtiss-Wright (1936), cited Marshall’s speech in arguing for inherent presidential powers in external relations. When read in context, however, Marshall’s speech does not support an independent, extra-constitutional or exclusive power of the President in foreign relations. The concept of an Executive having sole power over foreign relations borrows from other sources, including the British model of a royal prerogative. I. Executive Branch Position In offering a legal defense for President Harry Truman’s decision in 1950 to order U.S. troops to Korea, the State Department argued that the President “has authority to conduct the foreign relations of the United States.” 3 Citing United States v. Curtiss-Wright (1936), the department stated that the President is “charged with the duty of conducting the foreign relations of the United
2006-03236 August 2006
Studies on Presidential Power in Foreign Relations Study No. 1
The “Sole Organ” Doctrine
By Louis Fisher Specialist in Constitutional Law
The Law Library of Congress James Madison Memorial Building; 101 Independence Avenue, S.E.; Room LM 240; Washington, DC 20540-3200 Reception: (202) 707-5065 – FAX: (202) 315-3654 www.loc.gov/law/congress
LAW LIBRARY OF CONGRESS August 28, 2006
A Series of Studies on
Presidential Power In Foreign Relations: No. 1: The “Sole Organ” Doctrine
Louis Fisher 1 Specialist in Constitutional Law Executive Summary The Executive Branch relies in part on the “sole organ” doctrine to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall when he served in the House of Representatives in 1800: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 2 The Supreme Court, in United States v. Curtiss-Wright (1936), cited Marshall’s speech in arguing for inherent presidential powers in external relations. When read in context, however, Marshall’s speech does not support an independent, extra-constitutional or exclusive power of the President in foreign relations. The concept of an Executive having sole power over foreign relations borrows from other sources, including the British model of a royal prerogative. I. Executive Branch Position In offering a legal defense for President Harry Truman’s decision in 1950 to order U.S. troops to Korea, the State Department argued that the President “has authority to conduct the foreign relations of the United States.” 3 Citing United States v. Curtiss-Wright (1936), the department stated that the President is “charged with the duty of conducting the foreign relations of the United
Citations: United States v. Pink, 315 U.S. 203, 229 (1942). Curtiss-Wright was also cited in United States v. Belmont, 301 U.S. 324, 331-32 (1937). First Nat. City Bk. v. Banco Nacional de Cuba, 406 U.S. 759, 766 (1972) (citing Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)).