In United States v. Curtiss-Wright Export Corporation, the Supreme Court famously described the President as having “very delicate, plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations . . . .” Its description of the President as the “sole organ” of foreign affairs does not come from the text of the Constitution, but rather from a speech given by John Marshall in 1800. Yet somehow, and despite much debunking, this notion of the President as the “sole organ” of foreign affairs has become a firm fixture of our constitutional jurisprudence and is frequently invoked by courts and executive branch lawyers.
This symposium contribution looks back at nineteenth-century practice to see how heavily it embraced the account of the President as the “sole organ” of foreign affairs. Surprisingly, it shows that many actors in U.S. governmental practice were described as “organs” in relation to foreign affairs—not just the President, but also Cabinet Secretaries, Congress, and courts. These findings indicate constraints on exclusive presidential power and offer a cautionary tale in how constitutional complexity can be lost over time.