For the first century and a half of U.S. constitutional history, the U.S. Supreme Court recognized that Congress holds both express and implied authority in matters of war and foreign commerce. If executive military initiatives collided with statutory policy, the Court routinely ruled in favor of the latter. Yet its landmark decision in United States v. Curtiss‐Wright (1936) reversed this trend — and by extension, constitutional intent. By misinterpreting a phrase lifted from a speech (and not a judicial decision) that justice John Marshall delivered more than a century earlier, the 1936 Court endorsed the theory that the president holds plenary and exclusive power in foreign affairs and military intervention.
This determination to elevate the president above Congress rests on a series of flawed premises, judicial errors, and constitutional misconceptions about the authority of the executive, especially in foreign affairs. This article details how these erroneous judgments have informed additional Court decisions, explaining how they continue to inflict substantial damage to our democratic principles, systems of foreign and domestic accountability, separation of powers, and constitutional government.