Dames & Moore V. Regan: Congressional Power Over Foreign Affairs Held Hostage by Executive Agreement with Iran

Abstract:     
This article analyzes and discusses problematic issues of Presidential Authority in the foreign affairs arena in the aftermath of the Iranian Hostage Crisis of 1979-1981, and the United States Supreme Court decision in Dames & Moore v. Regan. It analyzes application of the International Emergency Economic Powers Act (IEEPA) and the Trading With the Enemy Act (TWEA) illuminating broad implications for the division of powers between political branches, and the problematic prospect of an "Imperial Presidency" in the absence or reticence of Congressional opposition to the President’s actions during national emergencies. It also examines the use of international executive agreements to settle claims of American Nationals against foreign governments and entities; the author considers and discusses possible sources of the power to conclude agreements, delegation and separation of powers problems arising in this context, in addition to public policy rationales for legitimizing such agreements. Last, the article identifies the legal, constitutional and political difficulties arising from the Dames & Moore decision while also distinguishing the pragmatic necessity for Executive flexibility in this area.

Number of Pages in PDF File: 39

Keywords: Iranian Hostage Crisis, Algerian Accords, Separation of Powers, Executive Agreements, Executive Power, Congressional Power, Foreign Affairs

Accepted Paper Series