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resulted from the encouragement, the actions of the private wrongdoer will be subjected to constitutional limitations."81
Analyzing other relevant cases, the authors proceed to discuss situations in which state action was found because the alleged wrongdoer and the government were involved in a “symbiotic relationship.” It would seem that in the hypothetical the CIA and THRUSH entered into a symbiotic relationship, in fact, an executive agreement implicating the United States government and rendering it liable to suit by foreign dissidents.
How do first amendment rights fare against executive agreements which would limit their exercise? The Court has never upheld an international agreement, treaty, or executive agreement whose execution it found to impinge upon constitutionally protected activities. 82
In Dames and Moore v. Regan,83 the Court expressly declined to address petitioners' contention that the suspension of claims, if authorized, would have constituted a taking of property in violation of the fifth amendment. 84 For that matter, the Court has never ruled that power to conclude executive agreements is inherent in the President, but has upheld agreements ancillary to specific plenary powers or statutory authority. In United States v. Pinkss and United States v. Belmont, 86 the agreements upheld related to a settlement of claims effected not pursuant to a power inhering in the presidency but incident to the President's exclusive power of recognition.87 In Dames and Moore,88 the President's authority flowed not from inherent power but from specific89 and implicit90 statutory grants.91
Summarizing the case law, Professor Henkin has written that “[a]lthough the First Amendment provides that 'Congress shall make no law'abridging freedom of speech, press, religion, assembly or petition, these are equally safe from infringement by treaty, Executive agreement or action, or Court order."92 Neither of the two foreign relations cases recently handed down, in which protected freedoms were at issue,contradicts that statement. 93
81. J. Nowak, R. ROTUNDA & J. YOUNG, HANDBOOK ON CONSTITUTIONAL Law 461 (1978).
82. See infra text accompanying note 111. 83. 453 U.S. 654 (1981). 84. Id. at 688–89. 85. 315 U.S. 203 (1942). 86. 301 U.S. 324 (1937). 87. See also Goldwater v. Carter, 444 U.S. 996, 1006 (1979) (Brennan, J., concurring). 88. Dames & Moore v. Regan, 453 U.S. 654 (1981). 89. Id. at 675. 90. Id. at 680.
91. “[T]he President's action in nullifying the attachments and ordering the transfer of assets,” the Court said, “was taken pursuant to specific congressional authorization (under the International Emergency Economic Powers Act, 50 U.S.C. $$ 1701- 06 (1976 & Supp. III 1979)].” Id. at 674.
92. L. HENKIN, supra note 68, at 254.
In Snepp v. United States, 94 the non-disclosure contract at issue was found to constitute a waiver of plaintiff's first amendment rights, thus making unnecessary an examination of constitutional issues. 95 Haig v. Agee, 96 on the other hand, appears to suggest that the power of Congress and the Executive acting jointly may suffice to override first amendment rights when activities abroad “are causing or are likely to cause serious damage to the national security or foreign policy of the United States."97 The Court upheld the statutory authority of the Secretary of State to revoke the respondent's passport. A close reading of the case, however, reveals that its rule is inapposite. Some courts have held that the freedom to travel internationally flows in part from the first amendment 98 and is grounded primarily on the due process clause of the fifth amendment,99 which admits greater governmental limitation. 100 As the Court said in Zemel v. Rusk, 101 the fact that a “liberty cannot be inhibited without due process of law does not mean it can under no circumstances be inhibited.”102 That the Court continued to view international travel as a “liberty” flowing principally from the due process clause is clear from its opinion in Agee: “the ‘right' of international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment. As such this ‘right,' the Court has held, can be regulated within the bounds of due process. "103
Whatever the source of the “right” to travel internationally, the Court has never found that the Executive has no inherent power to restrain that right. Chief Justice Warren, writing for the Court in Zemel, and Chief Justice Burger, writing for the Court in Agee, each reviewed relevant legislation and found that the passport revocations in question were authorized by statute. The Court noted in Agee that it had “no occasion in this case to determine the scope of the ‘very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations."" 104 Similarly, Justice Douglas in Kent v. Dulles 105 expressly “did not reach the question of constitutionality”106 but instead found that Congress had not authorized revocation under the circumstances of that case. 107 One remaining passport case, Aptheker v. Secretary of State, 108 also overturned the Executive’s revocation because of an absence of statutory authorization. 109
93. See infra notes 96 and 98. 94. 444 U.S. 507 (1980).
95. The entire first amendment issue is relegated to a footnote. Id. at 509 n. 3. For a critique of the Court's anemic reasoning, see Franck & Eisen, Balancing National Security and Free Speech, 14 N.Y.U. J. INT'L L. & POL. 339 (1982).
96. 453 U.S. 280 (1981). 97. Id. at 282.
98. In Aptheker v. Secretary of State, 378 U.S. 500, 516–17 (1964), the Court regarded freedom of travel as falling within the liberty guaranteed by the due process clause, but also as “a constitutional liberty closely related to rights of free speech and association."
99. N. DORSEN, P. BENDER, & B. NEUBORNE, 1 EMERSON, HABER & DORSEN'S POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES 894-95 (4th ed. 1976).
100. “No person shall ... be deprived of life, liberty, or property, without due process of law ..." U.S. CONST. amend. V.
101. 381 U.S. 1 (1964). 102. Id. at 14. 103. 453 U.S. 280, 307 (1981) (quoting Califano v. Aznavorian, 439 U.S. 170, 176 (1978)).
The Supreme Court's refusal to subordinate first amendment guarantees to the President's foreign affairs power is sensible. Restraints on free expression undermine governmental legitimacy because they make governmental policy less reflective of the popular will. In an era when the “marketplace of ideas” is increasingly electronic, this is particularly true of inhibitions affecting public assembly. Professor Emerson has stated:
The public assembly, in whatever form, is an indispensable feature of our system of freedom of expression because it does not depend upon the mass media of communication, which are controlled by the Establishment . . . . [lt] brings the speaker face to face with his audience; it provides a dramatic setting in which to communicate an idea .... [lt] is a cornerstone of the democratic process. 110
For reasons such as these the Court has declined to diminish first amendment protections when confronted by claims of presidential foreign affairs power. Prior restraints of speech were forcefully condemned in the one case in which the Supreme Court faced the issue squarely in a foreign relations context, New York Times Co. v. United States. 111
Such is the process, pursuant to a “fixed powers” mode of analysis, of assessing the validity of executive action under specific facts. The textual grant of power is identified, limitations (if any) found in the Constitution are applied, the resulting scope is determined through reference to judicial pronouncements and applied to the facts, and a conclusion is drawn. While the "fixed” analytical framework has the advantage of predictability, its weakness is that it accords statutory approval or disapproval an uncertain role; it assumes, within a given factual context, an unvarying reach of executive constitutional authority regardless of congressional enactments. Would the “sole organ” formula of Curtiss-Wright, for example, apply irrespective of action taken by Congress?
104. 453 U.S. at 289 n. 17 (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
105. 357 U.S. 116 (1958).
109. The Court held § 6 of the Subversive Activities Control Act of 1950, 50 U.S.C. $ 785 (1976), unconstitutional on its face, because it was overbroad and thus violated due process. Id. at 505.
110. Emerson, The Right to Protest, in THE RIGHTS OF AMERICANS 208–09 (N. Dorsen ed. 1970).
111. 403 U.S. 713 (1971).
C. Application to the CIA-THRUSH Agreement In the hypothetical described above, the CIA's symbiotic relationship with THRUSH would permit, if not encourage, the Tinarian secret police to violate the first amendment rights of Tinarian nationals and some United States citizens. Simply stated, the issue is whether the foreign relations power of the president should prevail over the rights guaranteed under the first amendment.
First, the symbiotic relationship between the CIA and THRUSH is sufficient to establish state action. Further, the foreign dissidents in the United States did face”a threat of specific future harm.” They were in danger of being “countered” upon their return home (or in the United States) as a direct result of surveillance in the United States. The resident aliens therefore have standing to seek the protection of the courts against unconstitutional executive action. One may reasonably conclude that in light of the present posture of the Supreme Court, the rights of resident aliens should prevail.
2. The “Fluctuating Powers” Test
a. Jackson's Steel Seizure analysis Justice Jackson wrote that government under the Constitution does not and cannot "conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. "112 “Presidential powers are not fixed but fluctuate . . . . “113 A situation involving the assertion of presidential power, he theorized, thus falls into one of three categories:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum .... 2. When the President acts in absence of either a Congressional
112. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952). 113. Id.
grant or denial of authority, he can only rely upon his own
The fluctuating powers analysis is not without flaws. It is, as Justice Jackson acknowledged, “somewhat over-simplified.”us Moreover, Justice Rehnquist is doubtless correct in the observation that “executive action in any particular instance falls, not neatly into one of three pigeonholes, but rather at some point along a spectrum."116
More important, the analysis does not avoid the principal weakness of the "fixed powers” approach: the “Auctuating powers” analysis requires an assignment of value to the executive power at issue, and another assignment of value to whatever legislative power that was exercised. The threshold question in each of the three categories necessarily remains the scope of the President's "own independent powers."117
A final defect in Jackson's analysis is that, while its structure does take account of statutory provisions that may affect executive power, at no stage does it provide for the consideration of constitutional provisions affecting the President's power, those specifically set forth in the Bill of Rights. While the fluctuating powers analysis provides a useful tool for weighing assertions of executive power against those of the legislative branch, its practical utility is limited when the situation is further complicated by express constitutional limitations.
One is not altogether convinced, therefore, by Justice Rehnquist's assertion that the Jackson approach “brings together as much combination of analysis and common sense as there is in this area."118 Nonetheless, its tripartite framework is helpful in considering congressional intent with respect to issues such as the CIA-THRUSH arrangement found in the hypothetical.
114. Id. at 635–38.
117. 343 U.S. at 637. In the dispute between the Senate Foreign Relations Committee and the Justice Department in 1979 concerning the treaty termination issue, the question of application of the Auctuating powers test involved essentially the scope of presidential power. See S. REP. No. 7, 96th Cong., Ist Sess. 19 (1979); S. REP. No. 119, 96th Cong., 1st Sess. 6 (1979); cf. letter from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel, to Frank Church, Chairman, Senate Foreign Relations Committee (undated), reprinted in Treaty Termination: Hearings on S. Res. 15 Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. (1979).
118. 453 U.S. at 661.