Page 16 - NYLS Magazine • 2014 • Vol. 33, No. 2

At the 2014 Commencement Exercises, Edward A. Purcell Jr.,
the Joseph Solomon Distinguished Professor
of Law, received the Otto L. Walter Distinguished Writing Award for his article, “Understanding Curtiss-Wright,” published in Law and History Review (November 2013). This intriguing article examines a 1936 U.S. Supreme Court opinion remarkable at the time due to its endorsement of sweeping powers for the President in the conduct of foreign affairs. Members of the executive branch, as well as some judges and scholars, have cited
the case, U.S. v. Curtiss-Wright Export Corp., repeatedly in support of unchecked executive foreign affairs powers.
Professor Purcell argues, however, that its
precedential authority is insignificant. He concludes that the case’s constitutional significance “lies not in doctrine but in the light the case casts on the nature of Supreme Court decisionmaking and the dynamics of separated national powers.”
At issue in the case was a joint congressional resolution authorizing the President to issue a proclamation making it unlawful to sell arms to either Paraguay or Bolivia, which were at war with each other. President Franklin D. Roosevelt made the proclamation, and the federal government subsequently prosecuted
the Curtiss-Wright Corporation for violating it by selling 15 machine guns to Bolivia. But the trial court dismissed the indictment, deeming the resolution “an invalid delegation of legislative power.”
The Supreme Court heard the case on direct appeal and reversed. It could have
upheld the prosecution on the narrow basis the government argued for: that
the resolution was a valid delegation of power by Congress. Instead, the high court declared, 7–1, that the federal government had exclusive powers over foreign relations, that these powers exist independent of the Constitution “as necessary concomitants of nationality,” and most controversially that the President held “plenary and exclusive” foreign affairs powers that he could exercise independent of Congress. The Court cited little authority for its assertions, and the authority it did cite was thin and dubious at best. Why the Court would make such sweeping assertions about foreign affairs powers, especially
the claim that the executive held “plenary and exclusive power” in the area, has long puzzled scholars.
Professor Purcell said that he became interested in the case while working on a chapter in the 2012 book International Law in the Supreme Court. Examining the period 1901–45, he was struck by the fact that Curtiss-Wright was decided by
14 New York Law schooL magaziNe • 2014 • VOL. 33, NO. 2
Curtiss-Wright
Understanding