When the Supreme Court Blessed the Imperial Presidency: New at Reason

In February 2018, Solicitor General Noel Francisco, an appointee of President Donald Trump, argued in support of Trump’s 2017 executive order banning immigrants from certain largely majority-Muslim countries. The president enjoys “broad authority” to act in this area, the government insisted in its brief to the U.S. Supreme Court, “when he deems it in the Nation’s interest.” Among the legal authorities Francisco cited in support of this argument was a 1936 ruling on presidential power known as United States v. Curtiss-Wright Export Corporation.

The same ruling has come up under both of Trump’s immediate predecessors as well. In 2007, for example, Solicitor General Paul Clement, an appointee of President George W. Bush, cited Curtiss-Wright while urging the U.S. Supreme Court to deny the writ of habeas corpus to enemy combatants held at the U.S naval base at Guantanamo Bay, Cuba. Three years later, Neal Katyal, the acting solicitor general under President Barack Obama, cited it in a brief to the Supreme Court claiming that the “sovereign” power to “expel or exclude aliens” is “largely immune from judicial control.”

It’s safe to assume that when the White House wants a free hand to operate in the name of foreign affairs, Curtiss-Wright will be invoked. In many ways, the ruling and its author are at the heart of the American presidency’s most sweeping claims to unilateral authority, writes Damon Root.

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