George Sutherland and the Contextualization of Executive Power JORDAN T. CASH ABSTRACT Humphrey’s Executor v. United States (1935) and United States v. Curtiss-Wright Ex- port 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 constitu- tional 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. Among Supreme Court cases focusing on the presidency, two of the most prom- inent were written within a year of each other: Humphrey’s Executor v. United States (1935) and United States v. Curtiss-Wright Export Corp. (1936). The for- mer struck at the heart of the president’s administrative authority by limiting the president’s removal authority over independent agencies, while the latter asserted that the executive held “plenary and exclusive power” in foreign affairs. 1 Both Jordan T. Cash is a post-doctoral research specialist at the University of Virginia, PO Box 400787, Char- lottesville, VA 22904 (jtc4ka@virginia.edu). I would like to thank David Nichols, Nicholas Jacobs, Anthony Sparacino, Kal Munis, Richard Burke, Tyler Syck, and the editors and anonymous reviewers at American Political Thought for their comments and suggestions on previous versions of this article. American Political Thought: A Journal of Ideas, Institutions, and Culture, vol. 9 (Winter 2020). 2161-1580/2020/0901-0003$10.00. © 2020 by The Jack Miller Center. All rights reserved. 1. Humphrey’s Executor v. United States, 295 U.S. 602 (1935); United States v. Curtiss- Wright Export Corp., 299 U.S. 304, 320 (1936).