Dames & Moore V. Regan - Iran hostage settlement

• Rehnquist 1979. Overview. Congress may sometimes be found to have impliedly acquiesced in the President’s exercise of power in a certain area. Where such acquiescence exists, this fact may be enough to tip the balance in favor of a finding that the President acted within the scope of his constitutional authority. SCt relied on such a theory in of implied congressional acquiescence in upholding President Carter’s power to take certain actions for the purpose of obtaining the release of American hostages from Iran.

• Facts. As part of the settlement of the Iranian hostage situation, President Carter took a number of actions affecting the claims of American creditors against Iran. The action which posed the most difficult constitutional issue was his suspension of all contractual claims against Iran then pending in American courts; such claims were to be later arbitrated by an international tribunal.

• Suspension upheld. SCt upheld agreement with Iran that provided that all legal proceedings in U.S. involving claims against Iran would be transferred to Iran-United States Claims Tribunal. SCt found that the claims suspension was within the President’s constitutional authority. While Congress had never explicitly delegated to the President the power to suspend such claims, it had implicitly authorized that practice by a long history of acquiescing in similar presidential conduct. (For instance, Congress had implicitly approved the use of executive agreements between the President and foreign powers to settle all claims.)

• Limited scope. SCt Carefully stressed the limited scope of its holding. It was not holding that the President has constitutional authority to settle or suspend all claims; the SCt was simply deciding that where such settlement or suspension is a “necessary incident to the resolution of a major foreign policy dispute,” and Congress has acquiesced in that type of presidential action, the action will be deemed within the President’s constitutional authority.

• Not dispositive. In any event, the fact that Congress has impliedly consented to Presidential action will almost certainly not by itself bring the action within the scope of his constitutional authority; it will merely be a factor in the analysis of close cases. In Dames & Moore, the President’s general executive authority in foreign policy matters (and perhaps his Commander-in-Chief powers) were probably also part of the equation.

• How can we distinguish this case from Youngstown?

• Rehnquist distinction. (a) IEEPA, while it does not specifically authorize what president did, indicates “congressional acceptance for a broad scope for executive action in circumstances such as those presented in this case.” Thus, Congressional silence seems to reflect mood supporting the president. (b) In Youngstown, Congressional silence is read to have opposite implication.

• Koppelman distinction (more salient). (a) Dames & Moore was decided at beginning of term of politically popular president (whose popularity was partially derived from role in ending Iran hostage crisis.) (b) Youngstown was decided toward end of term of politically weakened president.

• Note also, in this context, that Lincoln’s Emancipation Proclamation freed all slaves w/o compensation for slaveholders, in those parts of U.S. which were in rebellion. Justifications provided by Lincoln:

• Military Necessity. President has right to take any measure which may best subdue enemy.

• Duty to preserve Union. Any act which would normally be unconstitutional became constitutional if it was indispensable to preserving USC through preserving union.

• These cases show tension between constitutional legality vs. imperative of politics (e.g. formalism vs. realism).

• Government must have capacity to respond to emergency, and president more than any other branch, can respond instantly to needs of moment.

• If this is so, then how can law possibly specify in advance what limits are of presidential power?

• Can it be unconstitutional for president to do what is necessary to save the country?

1. If yes, then doesn’t president have responsibility, under some circumstances, to disobey USC?

2. Jefferson may have endorsed this view in defense of Louisiana Purchase. Military Necessity must overcome any constitutional obstacles.

3. What, then, is left of constitutional law?