George Sutherland and the Contextualization of Executive Power

Abstract

Humphrey’s Executor v. United States (1935) and United States v. Curtiss-Wright Export Corp. (1936) have long been considered landmark cases on presidential power. Yet despite being decided within 1 year of each other, they appear contradictory. Humphrey’s Executor limits presidential authority, while Curtiss-Wright expands it. This article argues that we can understand these seemingly inconsistent outcomes by examining the constitutional thought of the man who wrote both of them, Justice George Sutherland. Examining Sutherland’s thought throughout his career, we see that his conception of executive power was highly contextual. Based on his understanding of the origins of the Union and the Constitution, he drew a distinction between domestic and foreign policy. This has major implications for his views on executive power and presidential authority, allowing the president much more discretion in foreign affairs, while circumscribing the executive’s control of domestic administration, effectively enshrining the “two presidencies” thesis into constitutional law.