The estate of James B. Comey, who died last month, has asked the Supreme Court to take on the question of whether it has the right to assert a claim of a “duty to consult” with a foreign government on foreign policy matters, according to an opinion filed in the Supreme Judicial Court in the Northern District of California.
According to the opinion, the estate is asking the Supreme court to declare the Foreign Relations Authorization Act (FRAA), which prohibits foreign governments from requesting information from the executive branch in the public interest, unconstitutional.
“The [Foreign Relations Authorization] Act is the ultimate check on the Executive Branch and has never been tested in the courts, and its unconstitutional and contrary to the Constitution,” reads the opinion by Justice William Alsup.
“The Government is free to disclose certain aspects of its foreign policy decisions and engage in consultations with foreign officials, but it cannot engage in foreign policy without first obtaining the express consent of Congress, the Senate, and the President.”
The Foreign Relations Act (FOA) is a law passed by Congress in 1946 that gives Congress the power to “provide for the defense and welfare of the United States against aggression by foreign powers.”
The FEA has been used by Congress to authorize the military to act in response to foreign aggression.
The Foreign Affairs Authorization Act, which was signed into law by President Franklin D. Roosevelt in 1946, was passed to provide the Congress with the authority to take action to protect the United Kingdom and other allies against aggression from other nations.
The court has never addressed the question whether the Foreign Affairs Act is constitutional.
However, it is unclear how much of the law applies to the estate of Comey, whose death came on the heels of an investigation into Russia’s meddling in the 2016 presidential election.
According to court documents filed in response, the Estate is asking that the Supreme Courts review the constitutionality of the Foreign Resources Management Act, commonly known as the “FRA,” and its interpretation in the context of the FRAA.
Under the FRA, the government is required to consult with foreign governments when making decisions in the national interest.
In the opinion filed Monday, the Court said that the FDA and the FARA are the only federal statutes that expressly permit the Executive to consult on foreign affairs.
“There is nothing in the FMA or in the statutes of the Executive branch authorizing a foreign country to ask the President for a declaration of war on the United Nations, to seek information from a foreign agency on foreign political and economic issues, or to request information from another foreign agency or to conduct covert activities in foreign nations, including a foreign diplomatic mission, without the explicit consent of the Congress, or without a finding that it would have a harmful effect on the national security,” reads one of the opinions filed by Justice Alsup, which includes arguments by former Justice Anthony Kennedy.
The estate of former FBI Director James Comey in Los Angeles on Sept. 21, 2017.
Photo by Mark Wilson/Getty ImagesThe court’s opinion notes that the Foreign Interests Disclosure Act of 1976, commonly referred to as the Glass-Steagall Act, requires disclosure of certain information to the public in order to avoid conflicts of interest and protect against corruption.
The Foreign Revenues Disclosure Act (FREDA), commonly known to some as the Investment Advisers Act, was signed by President Bill Clinton in 1996.
The FRAA and FREDA were passed in response in the aftermath of the financial crisis of 2008, when the Obama administration sought to increase transparency and reduce conflicts of interests, and they were enacted into law after the Great Recession.
According the court, the FHA is the only statute that specifically prohibits foreign nations from seeking information from foreign governments in the interest of the national defense, and this is what the Estate seeks to address.
The opinion by Alsup concludes by noting that Congress has never interpreted the FPA to be applicable to the death of Comey.
“While Congress has expressly limited the scope of the FFA to the interest in foreign affairs and foreign policy, the statute has never required that Congress exercise its authority to regulate foreign relations with the President to protect against the potential for foreign interference with U.S. national security interests,” the opinion reads.