Hastings Law Journal Volume 52 | Issue 2 Article 2 1-2001 Carter, Reagan, and Khomeini: Presidential Transitions and International Law Nancy Amoury Combs Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Nancy Amoury Combs, Carter, Reagan, and Khomeini: Presidential Transitions and International Law, 52 Hastings L.J. 303 (2001). Available at: https://repository.uchastings.edu/hastings_law_journal/vol52/iss2/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Articles Carter, Reagan, and Khomeini: Presidential Transitions and International Law by NANCY AMOURY COMBS* Introduction Marbury v. Madison is justifiably famous for establishing judicial review; however, the case also provides the first glimpse in American political history of the power struggle between a lame-duck President who hurriedly advances the goals of his administration during the waning hours of his presidency and an incoming President who is just as intent on reversing his predecessor's eleventh-hour deeds. After the Republicans swept the elections of 1800,2 President John Adams, along with the outgoing Federalists in the lame-duck Congress, enraged President-elect Thomas Jefferson by expanding the federal judiciary and packing it with loyal Federalists.3 After the * Legal Adviser, Iran-United States Claims Tribunal, The Hague, The Netherlands. J.D., University of California at Berkeley, Boalt Hall, 1994. I am grateful to George H. Aldrich, Warren Christopher, Bruce Combs, Heather Gerken, Thomas Ginsburg, Jack Goldsmith, Sam Hirsch, Roberts Owen, and Olivia Swaak-Goldman for their helpful comments. The opinions expressed and any resulting errors are those of the author. 1. 5 U.S. (1 Cranch) 137 (1803). 2. The Republican presidential candidate Thomas Jefferson defeated the incumbent, Federalist John Adams, and the Republicans won a majority of the seats in Congress. See GEORGE LEE HASKINS & HERBERT A. JOHNSON, 2 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-1815, at 138-39 (1981); JAMES ROGER SHARP, AMERICAN POLITICS IN THE EARLY REPUBLIC: THE NEW NATION IN CRISIS 243-49 (1993). 3. During the two weeks before incoming President Jefferson's inauguration, Adams and the lame-duck Congress enacted the Judiciary Act of 1801, Act of Feb. 13, 1801, ch. 4, [3031 HASTINGS LAW JOURNAL [Vol. 52 Inauguration, Jefferson and his Republican Congress set about to reverse course, 4 repealing the Judiciary Act of 1801, 5 which had created numerous new judgeships, and abolishing the 1802 Term of the Supreme Court 6 to prevent a constitutional challenge to that repeal.7 At the same time, they unsheathed impeachment as an even more potent weapon to rid the judiciary of Federalists. 8 The House impeached Federalist District Judge John Pickering in early 1802,9 and the Senate removed him.10 The House then turned its attention 2 Stat. 89, 90, 98 (repealed 1802), which created circuit courts and thereby created numerous new federal judgeships and minor magistrate positions, and the Organic Act for the District of Columbia, ch. 15, 2 Stat. 103 (1801); ch. 24, 2 Stat. 115 (1801) (supplement to the Act), which authorized the President to name justices of the peace for the District of Columbia. President Adams allegedly stayed up until midnight the night before Jefferson's inauguration signing commissions for these new judicial officials, who, as a result, were pejoratively known as "midnight judges." See HASKINS & JOHNSON, supra note 2, at 134-35; William H. Rehnquist, Thomas Jefferson and His Contemporaries, 9 J. LAW & POL. 595, 600 (1993). Adams signed and sealed the commissions of the petitioners in Marbury v. Madison, but the commissions were not delivered by the end of the day, and the newly inaugurated President Jefferson refused to deliver the commissions. 5 U.S. (1 Cranch) at 155. It was this refusal that gave rise to Marbury v. Madison. 4. As Jefferson wrote to a friend, the Federalists "have retired into the judiciary as a stronghold... and from that battery all the works of republicanism are to be beaten down and erased." Letter to John Dickinson, December 19, 1801, in 10 THE WRITINGS OF THOMAS JEFFERSON 302 (Memorial ed. 1903); see HASKINS & JOHNSON, supra note 2, at 108. 5. Act of Mar. 8, 1802, ch. 8, 2 Stat. 132. See also III ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL 57-92 (1919) (describing the lengthy Senate and House debates); HASKINS & JOHNSON, supra note 2, at 163-64 (noting that the repeal passed both Houses of Congress "on almost strictly partisan lines"); FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT: A STUDY IN THE FEDERAL JUDICIAL SYSTEM 24-30 (1928); David P. Currie, The Constitution in Congress: The Most Endangered Branch 1801-1805, 33 WAKE FOREST L. REV. 219, 222-33 (1998). 6. Act to Amend the Judicial System of the United States, Apr. 29, 1802, ch. 31, § 1, 2 Stat. 156. The Court eventually upheld the repeal in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). 7. See III BEVERIDGE, supra note 5, at 94-97; Currie, supra note 5, at 233-34. 8. See III BEVERIDGE, supra note 5, at 157-60. 9. See 12 ANNALS OF CONG. 641-42 (1803). 10. See 13 ANNALS OF CONG. 367-68 (1803). See generally III BEVERIDGE, supra note 5, at 164-67; Lynn W. Turner, The Impeachment of John Pickering, 54 AM. HIST. REV. 485 (1949). January 2001] CARTER, REAGAN, AND KHOMEINI to the Supreme Court, impeaching Associate Justice Samuel Chase,' but the Senate acquitted Chase on all eight articles of impeachment.12 Subsequent changes of administration have by and large proved less acrimonious; yet, during the many intervening years, it has been by no means rare for lame-duck officeholders to push through partisan laws and policies only to see them limited or eliminated by their successors.1 3 What has been rare, however, has been for this phenomenon to occur in the realm of foreign affairs. Political weakness typically characterizes an administration's final year in office, and by the time the election has passed and the President has become a lame duck,14 his ability to conduct foreign affairs in particular is at its lowest ebb.' 5 Consequently, lame-duck Presidents usually steer clear of significant or controversial international issues; or, at the least, they seek their successors' concurrence or 6 commitment as to the course to pursue.' 11. See 13 ANNALS OF CONG. 272 (1804); see also III BEVERIDGE, supra note 5, at 169-74. See generally WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 15- 134 (1992). Chase's impeachment was widely viewed as a precursor to that of Chief Justice John Marshall. III BEVERIDGE, supra note 5, at 160-63. 12. REHNQUIST, supra note 11, at 104-05; see also III BEVERIDGE, supra note 5, at 171,174-219. 13. As Alexander Hamilton said, "To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert ... ." LAURIN L. HENRY, PRESIDENTIAL TRANSITIONS 125 (1960). 14. Office holders who are serving their final terms in office are also known as "lame ducks," but for purposes of this article, the term "lame duck" describes an office holder's status during the period between the election and the inauguration of his successor. 15. FREDERICK C. MOSHER ET AL., PRESIDENTIAL TRANSITIONS AND FOREIGN AFFAIRS 132 (1987); HENRY, supra note 13, at 457. 16. For example, when the repayment of European war debts to the United States became a critical issue soon after the 1932 election, lame-duck President Hoover repeatedly sought consultations with President-elect Roosevelt. HENRY, supra note 13, at 284-310. Likewise, lame-duck President Truman sought President-elect Eisenhower's commitment to support Truman's position on the forced repatriation of prisoners in the ongoing Korean War armistice negotiations. It at 480-86. Lame-duck President Johnson and President-elect Nixon also consulted on pending Vietnam War issues. CARL M. BRAUER, PRESIDENTIAL TRANSITIONS: EISENHOWER THROUGH REAGAN 152-53 (1986); see also MOSHER ET AL., supra note 15, at 131-32. In December 1992, lame-duck President George Bush committed United States ground troops as part of a multinational force to ensure delivery of humanitarian aid to war-tom Somalia, see Michael R. Gordon, U.N. Backs a Somalia Force as Bush Vows a Swift Exit; Pentagon Sees Longer Stay, N.Y. TIMES, Dec. 4, 1992, at Al, an action that incoming President Bill Clinton approved and expanded, see John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. PA. L. REV. 1673,1673 (2000). HASTINGS LAW JOURNAL [Vol. 52 This Article examines one of those very rare instances in which a lame-duck President was able and chose, during the final hours of his Administration, to bind the United States to significant international commitments without the concurrence of the President-elect. The lame duck was Jimmy Carter; the President-elect was Ronald Reagan; and the issue was the most dramatic foreign policy controversy since the end of the Vietnam War. On November 4, 1979, militant Iranian students seized the United States Embassy in Tehran and held fifty-two American citizens hostage. Despite the Carter Administration's extraordinary diplomatic efforts, it was unable to secure the hostages' release until President Carter's last full day in office.