Discretion Over Foreign Relations

Executive Branch Discretion Over Foreign Relations in 2013

United States views on international law [1] in relation to Executive Branch Discretion Over Foreign Relations: Detroit International Bridge: Constitutionality of International Bridge Act

On August 30, 2013, the United States filed its brief in support of its motion to dismiss the third amended complaint brought by plaintiffs, Detroit International Bridge Company (“DIBC”) and Canadian Transit Company (“CTC”). Plaintiffs sued multiple federal defendants, including the Department of State, in U.S. District Court for the District of Colombia, alleging multiple claims based, inter alia, on the decisions to grant a Presidential Permit allowing a new bridge to be constructed across the Detroit River and to approve an agreement between Michigan and Canada pertaining to the new bridge. Plaintiffs alleged, inter alia, that the new bridge would compete with their existing bridge and prevent them from building an additional bridge span. DIBC et al. v. United States, No. 10-CV-476 (D.D.C.). See Chapter 11.F.2. regarding issuance of the permit. Excerpts from the U.S. brief appear below (with footnotes and citations to the record omitted). The brief is available at (Secretary of State website) state.gov/s/l/c8183.htm. The first excerpt is from the section in which the United States addresses plaintiffs' claim that the International Bridge Act, under which the permit for the new bridge was granted and the Michigan-Canada agreement approved, is unconstitutional. The second excerpt is from the brief's discussion of plaintiffs' claims under the Administrative Procedure Act (“APA”). Both excerpts discuss the discretion afforded the executive branch in matters affecting foreign relations.

Some Aspects of Executive Branch Discretion Over Foreign Relations

Factual Background Congress enacted the original “Act to authorize the construction and maintenance of a bridge across Detroit River within or near the city limits of Detroit, Michigan” on March 4, 1921 (the “1921 ATC Act”). 41 Stat. 1439. The statute gave the American Transit Company permission to build, operate and maintain a bridge in or near Detroit, Michigan. Before it could begin construction, however, ATC was required to obtain the “proper and requisite authority” for construction from the Canadian government. Id. Congress specifically reserved the right to “alter, amend, or repeal this Act.” Id. at Sec. 3. Two months later, on May 3, 1921, the Canadian Parliament passed an “Act to incorporate The Canadian Transit Company” (“CTC”). 11-12 George V. Ch. 57 (Can.) (the “1921 CTC Act”). The 1921 CTC Act established the CTC, and provided it with a wide range of authority to build a number of in this world legal Encyclopediastructure works including a bridge. Id. at Sec. 1-8. The 1921 CTC Act provided CTC the right to “construct, maintain, and operate a railway and general traffic bridge across the Detroit River from some convenient point, at or near Windsor, Ontario” to somewhere in Michigan. Id. at Sec. 8(a). The CTC Act granted the permission to build 20 miles of railway, lay gas pipes, water pipes, and electrical cables and imbued CTC with the powers of a Canadian railway company. Id. at 8(a-j). The 1921 CTC Act also prohibited actual construction without “an Act of the Congress of the United States or other competent authority…authorizing or approving” the bridge. Id. at Sec. 9. The remainder of the Act permitted a number of activities such as issuing bonds, borrowing money, mortgaging property, and giving equal rights of passage to other companies, among others. Id at Secs. 10-21. Over the course of the next several years, Congress passed three minor amendments to the 1921 ATC Act, extending the deadlines for ATC to begin and complete construction, and giving ATC the right to sell, assign, transfer, or mortgage its interests under the 1921 ATC Act. See “the 1924 ATC Amendment,” 43 Stat. 103; the “1925 ATC Amendment,” 43 Stat. 1128; and the “1926 ATC Amendment,” 44 Stat. 535 (together with the 1921 ATC Act collectively referred to as the “ATC Acts”). None of these statutes altered the original language of the authorization to “construct, maintain, and operate” a bridge in or near Detroit, Michigan. Each of them expressly reserved the United States' right to “alter, amend, or repeal” the law.

Developments

The bridge was opened in 1929, and came to be known as the Ambassador Bridge. In 1972, Congress passed the International Bridge Act (“IBA”), which provided advance Congressional consent to international bridges subject to approvals by various executive agencies. 33 U.S.C. § 535 et seq. Among the provisions of the IBA, Congress gave its consent for States to enter into agreements with the governments of Canada or Mexico for the construction, maintenance of operation of bridges. Id. at 535a. Congress conditioned the effectiveness of the agreements on the approval of the U.S. Secretary of State. Id. The IBA also recognized that the construction of international bridges implicated the President's authority over foreign affairs, and provided that a bridge could not be constructed without the President's approval. Id. at 535b. Plaintiffs allege that they now seek to build a new span of the Ambassador Bridge (the “New Span”) to upgrade the existing facility and decrease maintenance costs. At the same time, the State of Michigan is working with Canada to construct a new bridge between Windsor, Ontario and Detroit, Michigan (referred to alternatively as the Detroit River International Crossing (“DRIC”) or the New International Trade Crossing (“NITC”)). Through numerous causes of action, Plaintiffs allege that the Federal Defendants' actions with regard to the New Span and the NITC violate the United States Constitution, and the ATC Acts and CTC Acts, as well as the 1909 Boundary Waters Treaty between the United States and Canada. All of Plaintiffs' claims either lack jurisdiction or fail to state a valid claim for relief. They must be dismissed under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Details

Count One Fails To State A Valid Claim Of Unconstitutional Delegation Of Power Under the 1972 International Bridge Act The State Department's authority to approve the Crossing Agreement was properly granted by Congress in the 1972 International Bridge Act. Plaintiffs' claim that the IBA is an unconstitutional delegation is incorrect on its face, both as to their characterization of the grant of authority and as to their assertion that there is no intelligible principle to guide the Department's exercise of that authority. Count One should therefore be dismissed under rule 12(b)(6).

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The 1972 IBA does not delegate Congress' power under the foreign compacts clause Plaintiffs assert that the IBA unconstitutionally delegates to the State Department Congress's power under Article 1, § 10 of the U.S. Constitution to consent to agreements or compacts between states and foreign powers. This is demonstrably incorrect as a matter of statutory language and legislative history. In fact, Congress itself has exercised its Article 1, § 10 power by consenting in advance to such agreements or compacts relating to international bridges. 33 U.S.C. § 535a. At the same time, Congress conditions the effectiveness of any such agreement on its approval by the U.S. Secretary of State. Id. At the time of enactment, Congress made clear that it was separating Congress's consent to interstate compacts, on the one hand, and the conditioning of their effectiveness on approval by the U.S. Secretary of State, on the other. The House report accompanying the Act expressly discussed the two different decisions, noted the extensive discussion on the subject of constitutionality that had taken place in the hearing on the Act, and adverted to (and attached) a memorandum on the subject provided by the Legal Adviser of the Department of State. H.R. Rep. 92-1303, 92nd Cong., 2d Sess. 4 (1972). The report observed that advance consent to compacts was necessary to accomplish the purpose of the IBA: Since this proposed act is designed to eliminate the necessity of ad hoc congressional consideration of international bridges, it would be anomalous to grant consent…but then require ad hoc [congressional] approval of the agreements pursuant to which they were to be constructed.

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Id. The Legal Adviser's memorandum to Congress concluded that “Congress may, under the Constitution, grant consent in advance to compacts and agreements between states and their subdivisions and foreign governments, and . . . such consent may be conditioned on approval of the terms of such agreements by the Department of State.” Id. at 15. The report also made clear why Congress wished the Department of State to approve such compacts and agreements. The Legal Adviser's memorandum to Congress observed: In the past, bridge agreements…have not been reviewed by anyone at the federal level for possible impact on foreign policy. We believe such a review would be in the national interest, and further believe that the U.S. Secretary of State would be an appropriate person to conduct such a review.

Executive Branch Discretion Over Foreign Relations in 2013 (Continuation)

United States views on international law [1] in relation to Executive Branch Discretion Over Foreign Relations: Id. at 12. Accordingly, Plaintiffs' claim that the IBA is an unconstitutional delegation of power ignores the fact that Congress was well aware of the constitutional limits of its power, and specifically drafted the statute to avoid an impermissible delegation. Congress is the entity giving its consent to the agreements between the States and foreign nations. The agreement's effectiveness is conditional on the U.S. Secretary of State's approval after review for foreign policy concerns. The U.S. Secretary of State has not been delegated Congress' foreign compact clause power, and Plaintiffs cannot therefore state a valid claim under the non-delegation doctrine.

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Even if the non-delegation doctrine was applicable, Congress supplied an intelligible principle to guide the State Department's actions Plaintiffs' assertion that the IBA lacks an intelligible principle to guide the U.S. Secretary of State's decision-making when approving these agreements is simply incorrect on its face. There is no dispute that Congress may delegate its legislative power to the other branches as long has it has set forth “an intelligible principle to which the person or body authorized to act is directed to conform.” TOMAC v. Norton, 433 F.3d 852, 866 (D.C. Cir. 2006) (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001)). The statute here satisfies the constitutional requirements. The Supreme Court has summarized its jurisprudence on this point as follows: “[I]n the history of the Court we have found the requisite 'intelligible principle' lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring 'fair competition.'” Whitman, 531 U.S. at 474 (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)). …

Development

If findings of impermissible delegations are rare, they are rarer still when Congress delegates authority over matters of foreign affairs. The Supreme Court has explained that “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than that it customarily wields in the domestic area.” Zemel v. Rusk, 381 U.S. 1, 17 (1965); see also U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (noting that in foreign affairs Congress has long granted the Executive “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”). This is so because of the “changeable and explosive nature” of international affairs and because the Executive must be able to quickly react to information that cannot be easily relayed to and evaluated by Congress. Zemel, 381 U.S. at 17. Moreover, when transacting with foreign nations, the Executive must act with “caution and unity of design.” Curtiss-Wright, 299 U.S. at 319 (internal quotations and citations omitted). The Supreme Court has concluded that it is therefore unwise to require Congress to establish narrow standards when delegating authority over foreign affairs. Id. at 321-22. When looking for the broad general directive that will satisfy the intelligible principle test, the court need not be constrained to testing the statutory language in isolation. TOMAC, 433 F.3d. at 866 (citing Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946)). Rather, “the statutory language may derive content from the 'purpose of the Act, its factual background and the statutory context in which they appear.'” Id. (quoting Am. Power & Light Co., 329 U.S. at 104). The court must therefore consider the legislative history and factual circumstances surrounding the passage of the IBA in determining whether or not there is an intelligible principle guiding Section 535a of the IBA. See id.

Details

Here, there is a framework formed by the statute, the legislative history, Executive Order 11423, 33 Fed. Reg. 11741, as amended, and the long-recognized authority of the Executive branch in matters of foreign policy. 33 U.S.C. §§ 535a, 535b; see also Presidio Bridge Co. v. Sec'y of State, 486 F. Supp. 288, 296 (W.D. Tex. 1980) (examining the legislative history of the IBA and noting it is to be read in concert with Executive Order 11423). This framework provides the intelligible principle governing the State Department's review of the terms of any crossing agreement, including this one. Michigan Gambling Opposition, 525 F.3d at 381 (intelligible principle discerned after reviewing the purpose and structure of the challenged statute, which should not be read in isolation). Plaintiffs' proposed attempt to bring a sweeping constitutional challenge to the IBA does not withstand scrutiny.

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First, the statute itself is concerned only with international bridges crossing the borders between the United States and Mexico or Canada. 33 U.S.C. § 535. The agreements covered by the statute are agreements between States and the governments of Canada or Mexico. 33 U.S.C. § 535a. It is clear even from these bare facts that the thrust of Congressional concern in the statute centers on matters of foreign policy and international relations with bordering countries. In addition, the State Department's central role in United States foreign policy provides sufficient indication that Congress intended that the State Department's review of agreements between States and foreign countries was to focus on foreign policy interests of the United States. Finally, the legislative history of the 1972 IBA provides even more clarity as to the principle Congress articulated for the State Department to apply. As noted above, the Report from the House Committee on Foreign Affairs explains that the State Department was to review the agreements for “possible impact on foreign policy.” H.R. REP. NO. 92-1303, at 12 (1972). Moreover, the IBA was a coordinated effort between the Executive branch and the Legislative branch to create a uniform system for approval of international bridges. Presidio Bridge Co., 486 F. Supp. at 295-96 (“after four years of work in drafting a bill, the President issued an Executive Order anticipating its final passage…the bill…was passed by a Congress that was well aware of both the provisions of the order and the reason for its existence.”). Executive Order 11,423 was drafted in anticipation of the IBA, which would grant advance Congressional approval of international bridges. Presidio Bridge Co., 486 F. Supp. at 296 (“the two documents are compatible with, and companions to one another”); see also Executive Order 11423, 33 Fed. Reg. 11741. The Executive Order explains that “the proper conduct of foreign relations requires that executive permission be obtained for the construction and maintenance …of facilities connecting the United States with a foreign country.” 33 Fed. Reg. at 11741. Taken together, the statute, legislative history, and Executive Order confirm the principle guiding the State Department's approval of these agreements: they must be reviewed for impacts on U.S. foreign policy and foreign relations. This guidance would handily satisfy the intelligible principle requirement even if the delegation concerned authority over domestic affairs. Given that the delegated authority is a matter of foreign affairs, there is essentially no question that it survives constitutional scrutiny.

Resources

Notes

1. Executive Branch Discretion Over Foreign Relations in the Digest of United States Practice in International Law

Resources

Notes

1. Executive Branch Discretion Over Foreign Relations in Digest of United States Practice in International Law