The Constitution Checks All Branches—Even in Foreign Affairs

Trump's refusal to facilitate the return of Kilmar Abrego García, reportedly justified by claims that the Supreme Court lacks the authority to override executive decisions in foreign affairs, rests on a flawed interpretation of constitutional law. While it is true that the executive branch wields significant influence over international relations, the notion that its authority is absolute or immune to judicial review contradicts well-established Supreme Court precedent.

The Constitution divides foreign policy powers across the branches: the president commands diplomacy and the military, Congress controls funding and ratifies treaties, and the judiciary interprets law, including laws that govern international obligations and individual rights in foreign policy contexts. Time and again, the Supreme Court has stepped in to review and, where necessary, limit executive action abroad.

Here are five landmark Supreme Court cases that show, in vivid detail, the judiciary’s constitutional role in foreign policy decisions. They disprove the idea that the president’s word is final in matters beyond U.S. borders.

1. United States v. Curtiss-Wright Export Corp. (1936)

The misunderstood “sole organ” doctrine and what the Court said

In this Depression-era case, Curtiss-Wright Export Corporation was indicted for violating an arms embargo President Franklin D. Roosevelt had issued against countries involved in the Chaco War. Congress had delegated power to the president to determine when and how to prohibit arms sales to the region.

Curtiss-Wright argued this delegation was unconstitutional, claiming that Congress had given away too much of its legislative power. The Supreme Court disagreed and upheld the statute, but not without introducing language that would become famously misinterpreted.

Justice George Sutherland wrote that the president is the “sole organ of the federal government in international relations,” a phrase often cited to support expansive executive powers. However, what’s often overlooked is that this comment was dictum, not binding, and based on a selectively quoted 1800 speech by John Marshall. More importantly, the Court did not rule that executive action was beyond judicial review.

🔗 Application to Kilmar Abrego García: The Trump team’s appeal to Curtiss-Wright to justify ignoring judicial involvement in foreign policy is misplaced. Even in Curtiss-Wright, the Court recognized congressional limits and implicitly acknowledged the judiciary’s interpretive role. Any executive decision preventing García’s return, particularly if it violates international law or statutory obligations, is not protected from constitutional scrutiny. This case serves as a precedent for the potential judicial review of García's situation.

2. Youngstown Sheet & Tube Co. v. Sawyer (1952)

Truman’s steel seizure and the framework that still governs executive power

When President Truman seized steel mills during the Korean War without congressional authorization, the Supreme Court struck the move down. In his landmark concurrence, Justice Robert Jackson outlined a three-part test to evaluate presidential power:

1. Strongest when authorized by Congress.
2. Uncertain when Congress is silent.
3. Weakest when acting against Congress’s will.

This framework has governed all subsequent disputes over executive authority.

🔗 Application to Kilmar Abrego García: If Trump’s refusal to allow García’s return contradicts any statutory or treaty-based obligations, such as asylum law, extradition agreements, or international human rights covenants, then that action would fall under the third category of the Jackson framework: executive power at its weakest. The Court’s ruling in Youngstown clarifies that the judiciary can and must review such actions.

3. Zivotofsky v. Kerry (2015)

The Court steps into foreign recognition policy and asserts its role

In Zivotofsky, the Supreme Court directly ruled on a foreign policy dispute between Congress and the executive branch over whether “Israel” could be listed as a birthplace on passports for Americans born in Jerusalem. The Court sided with the executive, affirming the president’s sole power of recognition.

More importantly, the Court rejected the idea that disputes in foreign affairs are “nonjusticiable.” It claimed the authority to determine where constitutional power lies, even in sensitive geopolitical matters.

🔗 Application to Kilmar Abrego García: The García case, involving potential diplomatic or international legal ramifications, falls within the same category of “foreign affairs” questions that Zivotofsky addressed. Hearing that case, the Court affirmed its role as the interpreter of constitutional authority, even in foreign policy. So, too, could the Court weigh in on whether the refusal to return García violates U.S. law or treaty obligations.

4. Boumediene v. Bush (2008)

Rights of foreign detainees and the reach of constitutional protections abroad

In Boumediene, the Court declared that detainees at Guantanamo Bay, non-citizens held outside U.S. sovereign territory, had the constitutional right to challenge their detention. The Bush administration argued that Guantanamo was beyond the Constitution’s reach. The Court disagreed.

It ruled that U.S. control over the base, combined with the severity of the liberty deprivation, meant that the Constitution applied, even overseas and in wartime.

🔗 Application to Kilmar Abrego García: If García is being held, denied return, or denied due process under the claim that he is outside U.S. jurisdiction or not entitled to judicial protection, Boumediene squarely refutes that logic. The Court has ruled that the Constitution follows U.S. control and responsibility, not just geography. His case deserves judicial oversight.

5. Hamdan v. Rumsfeld (2006)

Striking down executive-created war tribunals for violating international law

In Hamdan, the Bush administration tried to try detainees through military commissions that did not comply with U.S. military law or the Geneva Conventions. The Court struck these commissions down as illegal and a violation of domestic statutes and international norms.

The ruling emphasized that the president could not ignore legal procedures and treaty commitments unilaterally, even in war and foreign policy.

🔗 Application to Kilmar Abrego García: Any attempt by the Trump campaign or administration to circumvent U.S. or international legal obligations, deny asylum procedures, violate deportation agreements, or refuse repatriation would fall under the same scrutiny as the commissions in Hamdan. The judiciary has the authority to intervene when the executive ignores international law.

Conclusion: Courts Do and Must Review Foreign Policy

From steel mills to foreign birthplaces and battlefield detentions to international tribunals, the Supreme Court has consistently affirmed its jurisdiction over executive actions in foreign affairs. None of these decisions suggests the president is above review simply because a matter touches foreign soil or involves another nation. Instead, they confirm that checks and balances apply even when the stakes are global. This underscores the crucial role of the judiciary in maintaining the balance of power in foreign policy decisions.

The case of Kilmar Abrego García is not exceptional. If the government’s actions deny him rights guaranteed under U.S. or international law, the Supreme Court has every constitutional right, indeed, a duty to weigh in. The Trump campaign’s suggestion that foreign policy decisions are immune from judicial review is inaccurate and incompatible with our system of law and the historical role of the courts. This interpretation could set a dangerous precedent and undermine the principles of our legal system.

To deny the judiciary’s role in this matter would not just be a misreading of precedent. It would reject the constitutional order that upholds individual rights, even in the shadow of foreign policy.