Louis Fisher


Constitutional Commentary








We treat judicial rulings, particularly those of the Supreme Court, as legitimate sources of constitutional authority. But what if a decision rests on a plain misconception, expressed not in the holding of the case but in influential dicta, because the Court failed to properly understand a historical precedent? No matter how frequently courts, the Justice Department, and scholars later cite the dicta, a misrepresentation is not a valid source of authority. The responsible step for the Supreme Court is to revisit the mistake and correct it. This article focuses on the "sole organ" doctrine that appeared in United States v. Curtiss-Wright (1936). For nearly eight decades the Court allowed the error to persist as a source of presidential authority in external affairs. As a result of the author's amicus brief filed with the Court on July 17, 2014, concerning the case of Zivotofsky v. Kerry, the Court was formally put on notice about the error. On June 8, 2015, the Court corrected the error while allowing other Curtiss-Wright errors to survive. The continuation of a judicial error for nearly eight decades demonstrates that the Court lacks a satisfactory system for removing erroneous dicta that improperly magnified presidential power and damaged the constitutional system of checks and balances.

Included in

Law Commons