Logan Act - Constitutionality of The Act

Constitutionality of The Act

There has been little judicial discussion of the constitutionality of the Logan Act.

In United States v. Curtiss-Wright Export Corp. (1936), however, Justice Sutherland wrote in the majority opinion: "he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it." Sutherland also notes in his opinion the Senate Committee on Foreign Relations report to the Senate of February 15, 1816:

The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct, he is responsible to the Constitution.

The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question.

In a memorandum dated September 29, 2006, and entitled "MEMORANDUM FOR ALL MEMBERS AND OFFICERS, from the Committee on Standards of Official Conduct of the United States House of Representatives, regarding the subject of "Post-Employment and Related Restrictions for Members and Officers," members of the House who were leaving office were cautioned regarding activities that may implicate the Logan Act: 'Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: "Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the intent to influence the measures or conduct of any foreign government or of any officer or agent thereof in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.'"

The House memo goes on to state that the Logan Act "has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality. House Comm. on Standards of Official Conduct, Manual of Offenses and Procedures, Korean Influence Investigation, 95th Cong., 1st Sess. 18-19 (Comm. Print 1977). Members should be aware, however, that the law remains on the books."