The problem of the control of foreign policy has been a perennial source of anguish for democracies. The idea of popular government hardly seems complete if it fails to embrace questions of war and peace. Yet the effective conduct of foreign affairs appears to demand, as Tocqueville argued long ago, not the qualities peculiar to a democracy but "on the contrary, the perfect use of almost all those in which it is deficient" Steadfastness in a course, efficiency in the execution of policy, patience, secrecy-are not these more likely to proceed from executives than from legislatures? But, if foreign policy becomes the property of the executive, what happens to democratic control? In our own times this issue has acquired special urgency, partly because of the Indochina War, with its aimless persistence and savagery, but more fundamentally, I think, because the invention of nuclear weapons has transformed the power to make war into the power to blow up the world. And for the United States the question of the control of foreign policy is, at least in its constitutional aspect, the question of the distribution of powers between the presidency and the Congress.
On December 21, 1936, in the days when the Nine Old Men of the Supreme Court were, it was supposed, hellbent on confining the power of Presidents, the Court, speaking through one of its most conservative justices, conferred rather greater power on Franklin D. Roosevelt than it had denied him when in the previous 18 months it had vetoed such New Deal experiments as the NRA and the AAA. The decision in the case of U.S. v. Curtiss-Wright Export Corp. et al came as a ringing affirmation of inherent and independent presidential authority in foreign affairs.
The case arose because Congress in 1934 had passed a joint resolution authorizing the President to stop the sale of arms to Bolivia and Paraguay, then fighting each other in the Chaco jungles, if, in the presidential judgment, such an embargo would help restore peace.
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