Curtis Bradley (University of Chicago Law School) has posted Sovereign Power Constitutionalism (University of Chicago Law Review, forthcoming 2025) (69 pages ) on SSRN. Here is the abstract:
The constitutional text seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corporation. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article defends the Court’s suggestion that the federal government’s authority is informed by conceptions of nationhood. As will be shown, many areas of U.S. constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.
As the article says, inherent sovereign power is not necessarily inconsistent with originalism, depending on what the history might show. But I think it is inconsistent with the Constitution's text, and the Court's arguments in its favor are either not originalist or not persuasive (as summarized in this article: The Vesting Clauses and Foreign Affairs, part II.C). I also think that the extent of "missing" powers is somewhat exaggerated. Descriptively, though, the article is right that the Court has relied and — even in a more textualist and originalist time — continues to rely on inherent powers, and perhaps even more importantly that the political branches do.
Posted at 6:21 AM