Of all the issues confronting the members of the Philadelphia Convention, the nature of the Presidency ranks among the most important and the resolution of the question one of the most significant steps taken.\1\

The immediate source of Article II was the New York Constitution, in which the governor was elective by the people and thus independent of the legislature. Hisis term of office was three years, and he was indefinitely re-eligible. His decisions, except with regard to appointments and vetoes, were unencumbered with a council. He was in charge of the militia, possessed the pardoning power, and was charged to take care that the laws were faithfully executed.\2\

But when the Constitutional Convention assembled, and almost to its closing days, there was no assurance that the executive branch of the national government would not be headed by plural administrators, would not be unalterably tied to the legislature, and would not be devoid of many of the powers normally associated with an executive.

NOTES:

\2\Hamilton observed the similarities and differences between the President and the New York Governor in The Federalist, No. 69 (J. Cooke ed. 1961), 462-470. On the text, see New York Constitution of 1777, Articles XVII-XIX, in 5 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. (Washington: 1909), 2632-2633.

Debate in the Convention proceeded against a background of many things, but most certainly uppermost in the delegates' minds was the experience of the states and of the national government under the Articles of Confederation. Reacting to the exercise of powers by the royal governors, the framers of the state constitutions had generally created weak executives and strong legislatures, though not in all instances. The Articles of Confederation vested all national powers in a unicameral legislature, the Confederation Congress. Experience had demonstrated that harm was to be feared as much from an unfettered legislature as from an uncurbed executive and that many advantages of a reasonably strong executive could not be conferred on the legislative body.\3\

NOTE:

Nonetheless, the Virginia Plan, which formed the basis of discussion, offered in somewhat vague language a weak executive. Selection was to be by the legislature, and that body was to determine the major part of executive competency. The executive's salary was, however, to be fixed and not subject to change by the legislative branch during the term of the executive, and he was ineligible for re-election so that he need not defer overly to the legislature. A Council of Revision was provided of which the executive was a part with power to negative (veto) national and state legislation. The executive power was said to be the power to 'execute the national laws'' and to "enjoy the Executive rights vested in Congress by the Confederation.'' The Plan did not provide for a single or plural executive, leaving that issue open.\4\

NOTE:

When the executive portion of the Virginia Plan was taken up on June 1, James Wilson immediately moved that the executive should consist of a single person.\5\ In the course of his remarks, Wilson demonstrated his belief in a strong executive, advocating election by the people, which would free the executive of dependence on the national legislature and on the states, proposing indefinite re-eligibility, and preferring an absolute negative, though in concurrence with a Council of Revision.\6\ The vote on Wilson's motion was put over until the questions of method of selection, term, mode of removal, and powers to be conferred had been considered; subsequently, the motion carried,\7\ and the possibility of the development of a strong President was made real.

NOTES:

\6\Ibid., 65, 66, 68, 69, 70, 71, 73.

\7\Ibid., 93.

Only slightly less important was the decision finally arrived at not to provide for an executive council, which would participate not only in the executive's exercise of the veto power but also in the exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the Convention ultimately rejected the proposal and adopted language vesting in the U.S. Senate the power to "advise and consent'' with regard to these matters.\8\

NOTE:

Finally, the designation of the executive as the "President of the United States'' was made in a tentative draft reported by the Committee on Detail\9\ and accepted by the Convention without discussion.\10\ The same clause had provided that the President's title was to be "His Excellency,''\11\ and, while this language was also accepted without discussion,\12\ it was subsequently omitted by the Committee on Style and Arrangement,\13\ with no statement of the reason and no comment in the Convention.

NOTES:

\10\Ibid., 401.

\11\Ibid., 185.

\12\Ibid., 401.

\13\Ibid., 597.

The most obvious meaning of the language of Article II, Sec. 1, is to confirm that the executive power is vested in a single person, but, almost from the beginning, it has been contended that the words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much larger debate about the nature of the Presidency. With Justice Jackson, we "may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for the Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.''\14\ At the least, it is no doubt true that the "loose and general expressions'' by which the powers and duties of the executive branch are denominated\15\ place the President in a position in which he, as Professor Woodrow Wilson noted, "has the right, in law and conscience, to be as big a man as he can'' and in which "only his capacity will set the limit.''\16\

NOTES:

\15\A. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, Va.: 1840), 116.

\16\W. Wilson, Constitutional Government in the United States (New York: 1908), 202, 205.

Alexander Hamilton and James Madison. -- In Hamilton's defense of President Washington's issuance of a neutrality proclamation upon the outbreak of war between France and Great Britain may be found not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II.\17\ Said Hamilton: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties."

NOTE:

Hamilton continued: "The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, `All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, `The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.''\18\

NOTE:

Madison's reply to Hamilton, in five closely reasoned articles,\19\ was almost exclusively directed to Hamilton's development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison's principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation's neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. "Were it once established that the powers of war and treaty are in their nature executive; that, so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.''\20\ The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III.\21\

NOTES:

\20\Id., 621. In the congressional debates on the President's power to remove executive officeholders, cf. C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6, Madison had urged contentions quite similar to Hamilton's, finding in the first section of Article II and in the obligation to execute the laws a vesting of executive powers sufficient to contain the power solely on his behalf to remove subordinates. 1 Annals of Congress 496-497. Madison's language here was to be heavily relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52, 115-126 (1926), but compare, Corwin, The President's Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467, 1474-1483, 1485-1486.

\21\Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992), with Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. Rev. 1346 (1994), and responses by Calabresi, Rhodes and Froomkin, in id., 1377, 1406, 1420.

The Myers Case. -- However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States\22\ to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the "Decision of 1789'' in holding the removal power to be constitutionally vested in the President.\23\ But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President.\24\ Myers remains the fountainhead of the latitudinarian constructionists of presidential power, but its dicta, with regard to the removal power, were first circumscribed in Humphrey's Executor v. United States,\25\ and then considerably altered in Morrison v. Olson;\26\ with regard to the President's "inherent'' powers, the Myers dicta were called into considerable question by Youngstown Sheet & Tube Company v. Sawyer.\27\

NOTES:

\23\C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6.

\24\Myers v. United States, 272 U.S. 52, 163-164 (1926). Professor Taft had held different views. ``The true view of the executive functions is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary in its exercise. Such specific grant must be either in the federal constitution or in an act of congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. . . .'' W. Taft, Our Chief Magistrate and His Powers (New York: 1916), 139-140.

\25\295 U.S. 602 (1935).

\26\487 U.S. 654, 685-693 (1988).

\27\343 U.S. 579 (1952).

The Curtiss-Wright Case. -- Further Court support of the Hamiltonian view was advanced in United States v. Curtiss-Wright Export Corporation,\28\ in which Justice Sutherland posited the doctrine that the power of the national government in foreign relations is not one of enumerated but of inherent powers;\29\ this doctrine was then combined with Hamilton's contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were at all relevant in foreign affairs. "The broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers--as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as were thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. . . . That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. . . ."

NOTES:

\29\Id., 315-316, 318.

Justice Southerland continued:

"As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. . . .

"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality. . . .

"Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation . . . .''\30\

NOTE:

Scholarly criticism of Justice Sutherland's reasoning has demonstrated that his essential postulate, the passing of sovereignty in external affairs directly from the British Crown to the colonies as a collective unit, is in error.\31\ Dicta in later cases controvert the conclusions drawn in Curtiss-Wright about the foreign relations power being inherent, rather than subject to the limitations of the delegated powers doctrine.\32\ The holding in Kent v. Dulles\33\ that delegation to the Executive of discretion in the issuance of passports must be measured by the usual standards applied in domestic delegations appeared to circumscribe Justice Sutherland's more expansive view, but the subsequent limitation of that decision, though formally reasoned within its analytical framework, coupled with language addressed to the President's authority in foreign affairs, leaves clouded the vitality of that decision.\34\ The case nonetheless remains with Myers v. United States the source and support of those contending for broad inherent executive powers.\35\

NOTES:

\32\E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Stone); Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion, per Justice Black).

\33\357 U.S. 116, 129 (1958).

\34\Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id., 291, 293-294 & n. 24, 307-308. But see Dames & Moore v. Regan, 453 U.S. 654, 659-662 (1981), qualified by id., 678. Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director's dismissal of employee, over dissent relying in part on Curtiss-Wright as interpretive force counseling denial of judicial review), with Department of the Navy v. Egan, 484 U.s. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President's inherent power to protect information without any explicit legislative grant).

\35\That the opinion ``remains authoritative doctrine'' is stated in L. Henkin, Foreign Affairs and the Constitution (1972), 25-26. It is utilized as an interpretive precedent in American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), see, e.g., Sec. Sec. 1, 204, 339. It will be noted, however, that the Restatement is circumspect about the reach of the opinion in controversies between presidential and congressional powers.

The Youngstown Case. -- The only recent case in which the "inherent'' powers of the President or the issue of what executive powers are vested by the first section of Article II has been extensively considered\36\ is Youngstown Sheet & Tube Company v. Sawyer,\37\ and the multiple opinions there produced make difficult an evaluation of the matter. During the Korean War, President Truman seized the steel industry then in the throes of a strike. No statute authorized the seizure, and the Solicitor General defended the action as an exercise of the President's executive powers which were conveyed by the first section of Article II, by the obligation to enforce the laws, and by the vesting of the function of commander-in-chief. Six-to-three the Court rejected this argument and held the seizure void. But the doctrinal problem is complicated by the fact that Congress had expressly rejected seizure proposals in considering labor legislation and had authorized procedures not followed by the President which did not include seizure. Thus, four of the majority Justices\38\ appear to have been decisively influenced by the fact that Congress had denied the power claimed and this in an area in which the Constitution vested the power to decide at least concurrently if not exclusively in Congress. Three and perhaps four Justices\39\ appear to have rejected the Government's argument on the merits while three\40\ accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss-Wright.\41\

NOTES:

\37\343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953). A case similar to Youngstown was AFL-CIO v. Kahn, 618 F.2d 784 (D.C.Cir.) (en banc), cert. den., 443 U.S. 915 (1979), sustaining a presidential order denying government contracts to companies failing to comply with certain voluntary wage and price guidelines on the basis of statutory interpretation of certain congressional delegations.

\38\343 U.S. 593, 597-602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black's opinion as well), 634, 635-640 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).

\39\Id., 582 (Justice Black delivering the opinion of the Court), 629 (Justice Douglas concurring, but note his use of the Fifth Amendment just compensation argument), 634 (Justice Jackson concurring), 655 (Justice Burton concurring).

\40\Ibid., 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).

\41\Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Note that in Dames & Moore v. Regan, 453 U.S. 654, 659-662, 668-669 (1981), the Court turned to Youngstown as embodying ``much relevant analysis'' on an issue of presidential power.

The Practice in the Presidential Office. -- However contested the theory of expansive presidential powers, the practice in fact has been one of expansion of those powers, an expansion that a number of ``weak'' Presidents and the temporary ascendancy of Congress in the wake of the Civil War has not stemmed. Perhaps the point of no return in this area was reached in 1801 when the Jefferson-Madison "strict constructionists'' came to power and, instead of diminishing executive power and federal power in general, acted rather to enlarge both, notably by the latitudinarian construction of implied federal powers to justify the Louisiana Purchase.\42\ After a brief lapse into Cabinet government, the executive in the hands of Andrew Jackson stamped upon the presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, "the oldest political institution of the race, the elective Kingship.''\43\ While the modern theory of presidential power was conceived primarily by Alexander Hamilton, the modern conception of the presidential office was the contribution primarily of Andrew Jackson.\44\

NOTES:

\43\H. Ford, The Rise and Growth of American Politics (New York: 1898), 293.

\44\E. Corwin, The President--Office and Powers 1787-1957 (New York: 4th ed. 1957), ch. 1.

In recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly to permit Congress a greater degree of discretion.\45\ In striking down the congressional veto as circumventing Article I's bicameralism and presentment requirements attending exercise of legislative power, the Court also suggested in INS v. Chadha\46\ that the particular provision in question, involving veto of the Attorney General's decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws.\47\ And in Bowsher v. Synar,\48\ the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated by Chief Justice Burger's opinion of the Court in Chadha, that "the powers delegated to the three Branches are functionally identifiable,'' distinct, and definable.\49\ In a "standing-to-sue'' case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the federal government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the "take care'' clause and to delegate the power to the judiciary.\50\ On the other hand, the Court in the independent counsel case, while acknowledging that the contested statute did restrict to some degree a constitutionally delegated function, law enforcement, upheld the law upon a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President's constitutionally assigned functions.\51\

NOTES:

\46\462 U.S. 919 (1983).

\47\Although Chief Justice Burger's opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General's application of delegated power to a particular individual. ``Disagreement with the Attorney General's decision on Chadha's deportation . . . involves determinations of policy that Congress can implement in only one way. . . . Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.'' Id., 954-55. The Court's uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, inc., 501 U.S. 252 (1991).

\48\478 U.S. 714 (1986).

\49\Ibid., 462 U.S., 951.

\50\Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2144-2146 (1992). Evidently, however, while Justices Kennedy and Souter joined this part of the opinion, id., 2146 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia's doctrinal position, leaving the position, if that be true, supported in full only by a plurality.

\51\Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390-91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.

At issue in Synar were the responsibilities vested in the Comptroller General by the "Gramm-Rudman-Hollings'' Deficit Control Act,\52\ which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller's report. The Court viewed these functions of the Comptroller "as plainly entailing execution of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of 'execution' of the law,'' especially where "exercise [of] judgment'' is called for, and where the President is required to implement the interpretation.\53\ Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. "By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.''\54\

NOTES:

\53\Ibid., 478 U.S., 732-733.

\54\Ibid., 734.

The Court in Chadha and Synar ignored or rejected assertions that its formalistic approach to separation of powers may bring into question the validity of delegations of legislative authority to the modern administrative state, sometimes called the "fourth branch.'' As Justice White asserted in dissent in Chadha, "by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments. . . . There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.''\55\ Moreover, Justice White noted, "rules and adjudications by the agencies meet the Court's own definition of legislative action.''\56\ Justice Stevens, concurring in Synar, sounded the same chord in suggesting that the Court's holding should not depend on classification of "chameleon-like'' powers as executive, legislative, or judicial.\57\ The Court answered these assertions on two levels: that the bicameral protection "is not necessary'' when legislative power has been delegated to another branch confined to implementing statutory standards set by Congress, and that "the Constitution does not so require.''\58\ In the same context, the Court acknowledged without disapproval that it had described some agency action as resembling lawmaking.\59\ Thus Chadha may not be read as requiring that all "legislative power,'' as the Court defined it, must be exercised by Congress, and Synar may not be read as requiring that all "executive power'' as the Court defined it must be exercised by the executive. A more limited reading is that when Congress elects to exercise legislative power itself rather than delegate it, it must follow the prescribed bicameralism and presentment procedures, and when Congress elects to delegate legislative power or assign executive functions to the executive branch, it may not control exercise of those functions by itself exercising removal (or appointment) powers.

NOTES:

\56\Ibid., 462 U.S., 989.

\57\Ibid., 478 U.S., 736, 750.

\58\Ibid., 462 U.S., 953 n.16.

\59\Ibid.

A more flexible approach was followed in the independent counsel case. Here, there was no doubt that the statute limited the President's law enforcement powers. Upon a determination by the Attorney General that reasonable grounds exist for investigation or prosecution of certain high ranking government officials, he must notify a special, Article III court which appoints a special counsel. The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute.\60\ The independent counsel was assuredly more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court undertook a careful assessment of the degree to which executive power was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. Also considered by the Court was the issue whether in enacting the statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive.\61\

NOTES:

\61\Ibid., 487 U.S., 693-96. See also Mistretta v. United States, 488 U.S. 361, 380-84, 390-91, 408-11 (1989).

Formerly, the term of four years during which the President "shall hold office'' was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance that under the act of September 13, 1788, of "the Old Congress [the Confederation Congress],'' the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the Constitution. Although, as a matter of fact, Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment, by which the terms of President and Vice-President end at noon on the 20th of January.\62\

NOTE:

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940, the idea that no President should hold office for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term.'' The voters' departure from the tradition in electing President Franklin D. Roosevelt to third and fourth terms led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to embody the tradition in the constitutional document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth state, which was Minnesota.\63\

NOTE:

Article II, Section 1, Clauses 2, 3, and 4. -- Election of the President

Clause 2. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Clause 3. The Electors shall meet in their respective States and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and cetify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Clause 4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The Electoral College was one of the compromises by which the delegates were able to agree on the document finally produced. "This subject,'' said James Wilson, referring to the issue of the manner in which the President was to be selected, "has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.''\64\ Adoption of the Electoral College plan came late in the Convention, which had previously adopted on four occasions provisions for election of the executive by the Congress and had twice defeated proposals for election by the people directly.\65\ Itself the product of compromise, the electoral college probably did not work as any member of the Convention could have foreseen, because the development of political parties and nomination of presidential candidates through them and designation of electors by the parties soon reduced the concept of the elector as an independent force to the vanishing point in practice if not in theory.\66\ But the college remains despite numerous efforts to adopt another method, a relic perhaps but still a significant one. Clause 3 has, of course, been superseded by the Twelfth Amendment.

NOTES:

\65\1 id., 21, 68-69, 80-81, 175-176, 230, 244; 2 id., 29-32, 57-59, 63-64, 95, 99-106, 108-115, 118-121, 196-197, 401-404, 497, 499- 502, 511-515, 522-529.

\66\See J. Ceaser, Presidential Selection: Theory and Development (Princeton: 1979); N. Pierce, The People's President: The Electoral College in American History and the Direct-Vote Alternative (New York: 1968). The second presidential election, in 1792, saw the first party influence on the electors, with the Federalists and the Jeffersonians organizing to control the selection of the Vice-President. Justice Jackson once noted: ``As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.'' Ray v. Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do actually elect the President and Vice President.

"Appoint''. -- The word ``appoint'' is used in Clause 2 "as conveying the broadest power of determination.''\67\ This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable.''\68\

NOTES:

\68\Ibid., 28-29.

State Discretion in Choosing Electors. -- Although Clause 2 seemingly vests complete discretion in the States, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector.\69\ Its power to protect the choice of electors from fraud or corruption was sustained.\70\ "If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.''\71\

NOTES:

\70\Burroughs and Cannon v. United States, 290 U.S. 534 (1934).

\71\Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).

More recently, substantial curbs on state discretion have been instituted by both the Supreme Court and the Congress. In Williams v. Rhodes,\72\ the Supreme Court struck down a complex state system which effectively limited access to the ballot to the electors of the two major parties. In the Court's view, the system violated the equal protection clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny.\73\ Then, in Oregon v. Mitchell,\74\ the Court upheld the power of Congress to reduce the voting age in presidential elections\75\ and to set a thirty-day durational residency period as a qualification for voting in presidential elections.\76\ Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,\77\ is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment\78\ may override state practices which violate that Amendment and substitute standards of its own.

NOTES:

\73\``There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. [citing the Fifteenth, Nineteenth, and Twenty-fourth Amendments]. . . . Obviously we must reject the notion that Art. II, Sec. 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.'' Id., 29.

\74\400 U.S. 112 (1970).

\75\The Court divided five-to-four on this issue. Of the majority, four relied on Congress' power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. Id., 119-124 (Justice Black announcing opinion of the Court).

\76\The Court divided eight-to-one on this issue. Of the majority, seven relied on Congress' power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.

\77\393 U.S. 23 (1968).

\78\Cf. Fourteenth Amendment, Sec. 5.

Constitutional Status of Electors. -- Dealing with the question of the constitutional status of the electors, the Court said in 1890: ``The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. . . . In accord with the provisions of the Constitution, Congress has determined the times as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them.''\79\ The truth of the matter is that the electors are not "officers'' at all, by the usual tests of office.\80\ They have neither tenure nor salary, and having performed their single function they cease to exist as electors.

NOTES:

\80\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868).

This function is, moreover, "a federal function,''\81\ their capacity to perform which results from no power that was originally resident in the States, but which springs directly from the Constitution of the United States.\82\

NOTES:

\82\Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934).

In the face of the proposition that electors are state officers, the Court has upheld the power of Congress to act to protect the integrity of the process by which they are chosen.\83\ But in Ray v. Blair,\84\ the Court reasserted the conception of electors as state officers with some significant consequences.

NOTES:

\84\343 U.S. 214 (1952).

Electors as Free Agents. -- "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the nation's highest offices.''\85\ Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be men of "superior discernment, virtue, and information,'' who would select the President "according to their own will'' and without reference to the immediate wishes of the people. "That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community.''\86\

NOTES:

\86\S. Rept. No. 22, 19th Congress, 1st sess. (1826), 4.

Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so.\87\ A recent instance occurred when a 1968 Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the State, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.\88\

NOTES:

\88\115 Cong. Rec. 9-11, 145-171, 197-246 (1969).

The power of either Congress\89\ or of the States to enact legislation binding electors to vote for the candidate of the party on the ticket of which they run has been the subject of much argument.\90\ It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair,\91\ the Court upheld, against a challenge of invalidity under the Twelfth Amendment, a rule of the Democratic Party of Alabama, acting under delegated power of the legislature, which required each candidate for the office of presidential elector to take a pledge to support the nominees of the party's convention for President and Vice President. The state court had determined that the Twelfth Amendment, following language of Clause 3, required that electors be absolutely free to vote for anyone of their choice. Said Justice Reed for the Court:

NOTES:

\90\At least thirteen States do have statutes binding their electors, but none has been tested in the courts.

\91\343 U.S. 214 (1952).

"It is true that the Twelfth Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that, in the early elections, candidates for electors -- contemporaries of the Founders -- would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.

"However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state offers him opportunity to become a candidate for elector on his own terms, although he must file his declaration before the primary. Ala. Code, Tit. 17, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice.

"We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.''\92\ Justice Jackson, with Justice Douglas, dissented: ``It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as `due process of law,' `equal protection,' or `commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.''\93\

NOTES:

\93\Ibid., 232-233.

Clause 5. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been Fourteen Years a Resident within the United States.

All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Independence. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is "a natural born citizen'' in the sense of the clause. Such a child is a citizen as a consequence of statute.\94\ Whatever the term 'natural born'' means, it no doubt does not include a person who is 'naturalized.'' Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that "[a]ll persons born or naturalized in the United States'' are citizens.\95\ Significantly, however, Congress, in which a number of framers of the Constitution sat, provided in the Naturalization act of 1790 that "the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens. . . .''\96\ This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the Crown.\97\ There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.\98\ Whether the Supreme Court would decide the issue should it ever arise in a "case or controversy'' as well as how it might decide it can only be speculated about.

NOTES:

\95\Reliance on the provision of an Amendment adopted subsequent to the constitutional provision being interpreted is not precluded by but is strongly militated against by the language in Freytag v. CIR, 501 U.S. 868, 886-887 (1991), in which the Court declined to be bound by the language of the 25th Amendment in determining the meaning of ``Heads of Departments'' in the appointments clause. See also id., 917 (Justice Scalia concurring). If the Fourteenth Amendment is relevant and the language is exclusive, that is, if it describes the only means by which persons can become citizens, then, anyone born outside the United States would have to be considered naturalized in order to be a citizen, and a child born abroad of American parents is to be considered ``naturalized'' by being statutorily made a citizen at birth. Although dictum in certain cases supports this exclusive interpretation of the Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702- 703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent case in its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).

\96\Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See Weedin v. Chin Bow, 274 U.S. 657, 661-666 (1927); United States v. Wong Kim Ark, 169 U.S. 649, 672-675 (1898). With minor variations, this language remained law in subsequent reenactments until an 1802 Act, which omitted the italicized words for reasons not discernable. See Act of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring of American-citizen fathers, but omitting the italicized phrase).

\97\25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4 Geo. 2, ch. 21 (1731).

\98\See, e.g., Gordon,Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

Clause 6. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President declaring what Officer shall then act as President, and such Officer shall act accordingly until the Disability be removed, or a President shall be elected.

When the President is disabled or is removed or has died, to what does the Vice President succeed: to the "powers and duties of the said office,'' or to the office itself? There appears to be a reasonable amount of evidence from the proceedings of the Constitutional Convention from which to conclude that the framers intended the Vice President to remain Vice President and to exercise the powers of the President until, in the words of the final clause, "a President shall be elected.'' Nonetheless, when President Harrison died in 1841, Vice President Tyler, after initial hesitation, took the position that he was automatically President,\99\ a precedent which has been followed subsequently and which is now permanently settled by Section 1 of the Twenty-fifth Amendment. That Amendment as well settles a number of other pressing questions with regard to presidential inability and succession.

NOTE:

Article II, Section 1, Clauses 7 and 8. -- Compensation and Oath of Office

Clause 7. The President shall, at stated Times, receive for his Services, a Compensation which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Clause 7 may be advantageously considered in the light of the rulings and learning arising out of parallel provision regarding judicial salaries.\100\

NOTE:

Clause 8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

What is the time relationship between a President's assumption of office and his taking the oath? Apparently, the former comes first, this answer appearing to be the assumption of the language of the clause. The Second Congress assumed that President Washington took office on March 4, 1789,\101\ although he did not take the oath until the following April 30.

NOTE:

That the oath the President is required to take might be considered to add anything to the powers of the President, because of his obligation to "preserve, protect and defend the Constitution,'' might appear to be rather a fanciful idea. But, in President Jackson's message announcing his veto of the act renewing the Bank of the United States, there is language which suggests that the President has the right to refuse to enforce both statutes and judicial decisions on his own independent decision that they were unwarranted by the Constitution.\102\ The idea next turned up in a message by President Lincoln justifying his suspension of the writ of habeas corpus without obtaining congressional authorization.\103\ And counsel to President Johnson during his impeachment trial adverted to the theory but only in passing.\104\ Beyond these isolated instances, it does not appear to be seriously contended that the oath adds anything to the President's powers.

NOTES:

\103\6 J. Richardson, op. cit., n.42, 25.

\104\2 Trial of Andrew Johnson (Washington: 1868), 200, 293, 296.

Article II, Section 2. Powers and Duties of the President

Section 2, Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Surprisingly, little discussion of the Commander-in-Chief clause is found in the Constitutional Convention or in the ratifying debates. From the evidence available, it appears that the framers vested the duty in the President because experience in the Continental Congress had disclosed the inexpediency of vesting command in a group and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.\105\ But the principal concern here is the nature of the power granted by the clause.

NOTE:

The Limited View. -- The purely military aspects of the Commander- in-Chiefship were those that were originally stressed. Hamilton said the office "would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy.''\106\ Story wrote in his Commentaries: "The propriety of admitting the President to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the President might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.''\107\ In 1850, Chief Justice Taney, for the Court, said: "His duty and his power are purely military. As commander-in- chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."

NOTES:

\107\3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1486.

Justice Taney continued:

". . . But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.''\108\ Even after the Civil War, a powerful minority of the Court described the role of President as Commander-in- Chief simply as ``the command of the forces and the conduct of campaigns.''\109\

NOTES:

\109\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866).

The Prize Cases. -- The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.\110\ In his famous message to Congress of July 4, 1861,\111\ Lincoln advanced the claim that the "war power'' was his for the purpose of suppressing rebellion, and in the Prize Cases\112\ of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.\113\ The argument was advanced that a blockade to be valid must be an incident of a "public war'' validly declared, and that only Congress could, by virtue of its power "to declare war,'' constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers of the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.'"

NOTES:

\111\7 J. Richardson, op. cit., n.42, 3221, 3232.

\112\2 Bl. (67 U.S.) 635 (1863).

\113\7 J. Richardson, op. cit., n.42, 3215, 3216, 3481.

Justice Grier went on to say:

"The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized `a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.

"This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

". . . Whether the President in fulfilling his duties, as Commander-in-Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.''\114\

NOTE:

Impact of the Prize Cases on World Wars I and II. -- In brief, the powers claimable for the President under the Commander-in-Chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war.\115\ And since Lincoln performed various acts, especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the constitutional provinces of Congress, it seems to have been assumed during World Wars I and II that the Commander-in-Chiefship carried with it the power to exercise like powers practically at discretion, not merely in wartime, but even at a time when war became a strong possibility. No attention was given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,\116\ with the exception of his suspension of the habeas corpus privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.\117\ Nor was this the only respect in which war or the approach of war was deemed to operate to enlarge the scope of power claimable by the President as Commander-in-Chief in wartime.\118\

NOTES:

\116\12 Stat. 326 (1861).

\117\J. Randall, Constitutional Problems under Lincoln (Urbana: rev. ed. 1951), 118-139.

\118\E.g., Attorney General Biddle's justification of seizure of a plant during World War II: ``As Chief Executive and as Commander-in- Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purpose of carrying on the war. . . . In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reasonable steps to prevent nation- wide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander- in-Chief of the Army and Navy the power to take steps to protect the nation's war effort.'' 40 Ops. Atty. Gen. 312, 319-320 (1944). Prior to the actual beginning of hostilities, Attorney General Jackson asserted the same justification upon seizure of an aviation plant. E. Corwin, Total War and the Constitution (New York: 1946), 47-48.

In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,\119\ President Franklin Delano Roosevelt formulated his conception of his powers as "Commander in Chief in wartime.''

NOTE:

President Roosevelt's formulation is as follows:

"I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

"In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

"At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.

"The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

"I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .

"The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

"When the war is won, the powers under which I act automatically revert to the people -- to whom they belong.''\120\

NOTE:

Presidential War Agencies. -- While congressional compliance with the President's demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus, in exercising both the powers which he claimed as Commander-in-Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies.\121\

NOTE:

Constitutional Status of Presidential Agencies. -- The question of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision of the United States Court of Appeals of the District of Columbia in Employers Group v. National War Labor Board,\122\ which was a suit to annul and enjoin a ``directive order'' of the War Labor Board. The Court refused the injunction on the ground that, at the time when the directive was issued, any action of the Board was "informatory,'' "at most advisory.'' In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock- out agreement and . . . to carry out the directives of the tribunal created under that agreement by the Commander in Chief.''\123\ Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, the War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies as in all respects offices.\124\

NOTES:

\123\Ibid., 149.

\124\E. Corwin, op. cit., n.42, 244, 245, 459.

Evacuation of the West Coast Japanese. -- On February 19, 1942, President Roosevelt issued an executive order, "by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,'' providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which "any person'' could be excluded or removed and to set up facilities for such persons elsewhere.\125\ Pursuant to this order, more than 112,000 residents of the Western states, all of Japanese descent and more than two out of every three of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later into "relocation centers'' in several states.

NOTE:

It was apparently the original intention of the Prrosevelt administration to rest its measures concerning this matter on the general principle of military necessity and the power of the Commander-in-Chief in wartime. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,\126\ by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the Act. The question at issue, said Chief Justice Stone for the Court, "is not one of congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional . . . [power] to impose the curfew restriction here complained of.''\127\ This question was answered in the affirmative, as was the similar question later raised by an exclusion order.\128\

NOTES:

\127\Hirabayashi v. United States, 320 U.S. 81, 91-92 (1943).

\128\Korematsu v. United States, 323 U.S. 214 (1944).

Long afterward, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu's conviction [Korematsu v. United States, 584 F.Supp. 1406 (N.D.Calif. 1984)], and in 1986, a federal court vacated Hirabayashi's conviction for failing to register for evacuation, but let stand the conviction for curfew violations [Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash. 1986)]. Other cases were pending, but Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging "the fundamental injustice of the evacuation, relocation and internment,'' and apologizing on behalf of the people of the United States. [P. L. 100- 383, 102 Stat. 903, 50 U.S.C. App. Sec. 1989 et seq.] Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000.

Presidential Government of Labor Regulations. -- The most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, President Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill.\129\ Attorney General Jackson justified the seizure as growing out of the "duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,'' as well as "to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain.''\130\ Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. "Whereas,'' the order read in part, "by reason of the state of war declared to exist by joint resolutions of Congress, . . . the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board. . . .''\131\ In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,\132\ which, however, still left ample basis for presidential activity of a legislative character.\133\

NOTES:

\130\E. Corwin, Total War and the Constitution (New York: 1946), 47-48.

\131\7 Fed. Reg. 237 (1942).

\132\57 Stat. 163 (1943).

\133\See Vanderbilt, War Powers and their Administration, 1945 Annual Survey of American Law (N.Y. Univ.), 254, 271-273.

Sanctions Implementing Presidential Directives. -- To implement his directives as Commander-in-Chief in wartime, and especially those which he issued in governing labor disputes, President Roosevelt often resorted to "sanctions,'' which may be described as penalties lacking statutory authorization. Ultimately, the President sought to put sanctions in this field on a systematic basis. The order empowered the Director of Economic Stabilization, on receiving a report from the National War Labor Board that someone was not complying with its orders, to issue "directives'' to the appropriate department or agency requiring that privileges, benefits, rights, or preferences enjoyed by the noncomplying party be withdrawn.\134\

NOTE:

Sanctions were also occasionally employed by statutory agencies, such as OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942.\135\ In the case of Steuart & Bro. v. Bowles,\136\ the Supreme Court had the opportunity to regularize this type of executive emergency legislation. Here, a retail dealer in fuel oil was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to enjoin it.

NOTES:

\136\322 U.S. 398 (1944).

The court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: "Without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. . . . But middlemen--wholesalers and retailers--bent on defying the rationing system could raise havoc with it. . . . These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. . . . Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. . . . From the point of view of the factory owner from whom the materials were diverted the action would be harsh. . . . But in time of war the national interest cannot wait on individual claims to preference. Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil.''\137\ Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.\138\

NOTES:

\138\E. Corwin, op. cit., n.44, 249-250.

The Postwar Period. -- The end of active hostilities did not terminate either the emergency or the federal-governmental response to it. President Truman proclaimed the termination of hostilities on December 31, 1946,\139\ and Congress enacted a joint resolution which repealed a great variety of wartime statutes and set termination dates for others in July, 1947.\140\ Signing the resolution, the President said that the emergencies declared in 1939 and 1940 continued to exist and that it was ``not possible at this time to provide for terminating all war and emergency powers.''\141\ The hot war was giving way to the Cold War.

NOTES:

\140\S.J. Res. 123, 61 Stat. 449 (1947).

\141\Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).

Congress thereafter enacted a new Housing and Rent Act to continue the controls begun in 1942 \142\ and continued the draft.\143\ With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again\144\ and by executive order the President created agencies to exercise the power.\145\ The Court continued to assume the existence of a state of wartime emergency prior to Korea but with misgivings. In Woods v. Cloyd W. Miller Company,\146\ the Court held constitutional the new rent control law on the ground that cessation of hostilities did not conclude the Government's powers but that the power continued to remedy the evil arising out of the emergency. Yet for the Court, Justice Douglas noted: ``We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today's decision.''\147\ Justice Jackson, while concurring, noted that he found the war power "the most dangerous one to free government in the whole catalogue of powers'' and cautioned that its exercise should ``be scrutinized with care.''\148\ And in Ludecke v. Watkins,\149\ four Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was fiction and not to be utilized.

NOTES:

\143\62 Stat. 604 (1948).

\144\Defense Production Act of 1950, 64 Stat. 798.

\145\E.O. 10161, 15 Fed. Reg. 6105 (1950).

\146\333 U.S. 138 (1948).

\147\Ibid., 143-144.

\148\Ibid., 146-147.

\149\335 U.S. 160 (1948).

But the postwar was a time of reaction against the wartime exercise of power by President Roosevelt, and President Truman was not permitted the same liberties. The Twenty-second Amendment writing into permanent law the two-term custom, the "Great Debate'' about our participation in NATO, the attempt to limit the treaty-making power, and other actions, bespoke the reaction.\150\ The Supreme Court signalized this reaction when it struck down the President's action in seizing the steel industry while it was struck during the Korean War.\151\

NOTES:

\151\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Nonetheless, the long period of the Cold War and of active hostilities in Korea and Indochina, in addition to the issue of the use of troops in the absence of congressional authorization, further created conditions for consolidation of powers in the President. In particular, a string of declarations of national emergencies, most under, in whole or partially, the Trading with the Enemy Act,\152\ undergirded the exercise of much presidential power. In the storm of response to the Vietnamese conflict, here, too, Congress reasserted legislative power to curtail what it viewed as excessive executive power, repealing the Trading with the Enemy Act and enacting in its place the International Emergency Economic Powers Act (IEEPA),\153\ which did not alter most of the range of powers delegated to the President but which did change the scope of the power delegated to declare national emergencies.\154\ Congress also passed the National Emergencies Act, prescribing procedures for the declaration of national emergencies, for their termination, and for presidential reporting to Congress in connection with national emergencies. To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would continue in effect.\155\ Whether the balance of power between President and Congress shifted at all is not really a debatable question.

NOTES:

\153\91 Stat. 1626, 50 U.S.C. Sec. Sec. 1701-1706.

\154\Congress authorized the declaration of a national emergency based only on ``any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States. 50 U.S.C. Sec. 1701.

\155\P. L. 94-412, 90 Stat. 1255 (1976).

Reaction after World War II did not persist, soon running its course, and the necessities, real and only perceived as such, of the United States role as world power and chief guarantor of the peace operated to expand the powers of the President and to diminish congressional powers in the foreign relations arena. President Harry S. Truman did not seek congressional authorization before sending troops to Korea and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, among them, as well as most notably into Indochina.\156\ Eventually, public opposition precipitated another constitutional debate over whether the President had the authority to commit troops to foreign combat without the approval of Congress, a debate which went on inconclusively between Congress and Executive\157\ and one which the courts were content generally to consign to the exclusive consideration of the legislative and executive two branches of the government. The substance of the debate concerns many facets of the President's powers and responsibilities -- from his obligation to protect the lives and property of United States citizens abroad, to execute the treaty obligations of the Nation, to further the national security interests of the Nation, and to deal with aggression and threats of aggression as they confront him. Defying neat summarization, the considerations nevertheless merit at least an historical survey and an attempted categorization of the arguments.

NOTES:

\157\See under Article I, Sec. 8, cls. 11-14.

The Historic Use of Force Abroad. -- In 1912, the U.S. Department of State published a memorandum prepared by its Solicitor, a memorandum which set out to justify the "Right to Protect Citizens in Foreign Countries by Landing Forces.''\158\ In addition to the justification, the memorandum summarized 47 instances in which force had been used, in most of them without any congressional authorization. Twice revised and reissued, the memorandum was joined by a 1928 independent study and a 1945 work by a former government official in supporting conclusions which drifted away from the original justification of the use of United States forces abroad to the use of such forces at the discretion of the President and free from control by Congress.\159\

NOTES:

\159\Ibid., (Washington: 1929; 1934); M. Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (Baltimore: 1928); J. Rogers, World Policing and the Constitution (Boston: 1945). The burden of the last cited volume was to establish that the President was empowered to participate in United Nations peacekeeping actions without having to seek congressional authorization on each occasion; it may be said to be one of the earliest, if not the earliest, propounding of the doctrine of inherent presidential powers to use troops abroad outside the narrow compass traditionally accorded those powers.

New lists and revised arguments were published to support the actions of President Truman in sending troops to Korea and Presidents John F. Kennedy and Lyndon B. Johnson in sending troops first to Vietnam and then to Indochina generally,\160\ and new lists have been propounded.\161\ The great majority of the instances cited involved fights with pirates, landings of small naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small bodies of troops to chase bandits across the Mexican border, and the like, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislation authorization. Some instances, President Polk's use of troops to precipitate war with Mexico in 1846, President Grant's attempt to annex the Dominican Republic, President William McKinley's dispatch of troops into China during the Boxer Rebellion, involved considerable exercises of presidential power, but, in general purposes, were limited and congressional authority was sought for the use of troops against a sovereign state or in such a way as to constitute war. The early years of this century saw the expansion in the Caribbean and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military force of the United States without congressional authorization.\162\

NOTES:

\161\War Powers Legislation, Hearings before the Senate Foreign Relations Committee, 92d Congress, 1st sess. (1971), 347, 354-355, 359- 379 (Senator Goldwater); Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53 (1972). The most complete list as of the time prepared is Collier, Instances of Use of United States Armed Forces Abroad, 1798- 1989, Cong. Res. Serv. (1989), which was cited for its numerical total in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to reconstruct the process of development and continuation of the listings, see F. Wormuth & E. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (New York: 2d ed. 1989), 142-145.

\162\Of course, considerable debate continues with respect to the meaning of the historical record. For reflections of the narrow reading, see National Commitments Resolution, Report of the Senate Committee on Foreign Relations, S. Rept. No. 91-129, 1st sess. (1969); J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: 1993). On the broader reading and finding great presidential power, see A. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (New York: 1976); Emerson, Making War Without a Declaration, 17 J. Legis. 23 (1990).

The pre-war actions of Presidents Woodrow Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact until the "Great Debate'' over the commitment of troops by the United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the United Nations charter, and the debate over Article 5 of the North Atlantic Treaty of 1949, declaring that ``armed attack'' against one signatory was to be considered as "an attack'' against all signatories, provided for the occasion of the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion.\163\ Thus, Secretary of State Acheson told Congress: "Not only has the President the authority to use the armed forces in carrying out the broad foreign policy of the United States implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.''\164\

NOTES:

\164\Assignment of Ground Forces of the United States to Duty in the European Area, Hearings before the Senate Foreign Relations and Armed Services Committees, 82d Congress, 1st sess. (1951), 92.

The Theory of Presidential Power. -- The fullest expression of the presidential power proponents has been in defense of the course followed in Indochina. Thus, the Legal Adviser of the State Department, in a widely circulated document, contended:

"Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States. . . .

"In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation's security. In the SEATO treaty, for example, it is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States.

"Under our Constitution, it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.''\165\

NOTE:

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander-in-Chief he was empowered to direct the armed forces for any purpose specified by Congress.\166\ Though Congress asserted itself in some respects, it never really managed to confront the President's power with any sort of effective limitation, until recently.

NOTE:

The Power of Congress to Control the President's Discretion. -- Over the President's veto, Congress enacted the War Powers Resolution,\167\ designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President's powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set. The Resolution states that the President's power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.\168\ In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.\169\ The President is required to terminate the use of troops in the reported situation within 60 days of reporting, unless Congress (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President's certification to Congress of unavoidable military necessity respecting the safety of the troops.\170\ Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.\171\ The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.\172\

NOTES:

\168\87 Stat. 554, 2(c), 50 U.S.C. Sec. 1541(c).

\169\Id., Sec. 1543(a).

\170\Id., Sec. 1544(b).

\171\Id., Sec. 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.

\172\Id., 50 U.S.C. Sec. 1547(a).

Aside from its use as a rhetorical device, the Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so ``consistent[ly] with'' the reporting section but not pursuant to the provision.\173\ Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending he had the power to act unilaterally.\174\ Congress after intensive debate voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U. N. resolution and purporting to bring the act within the context of the War Powers Resolution.\175\

NOTES:

\174\See Hearings on Crisis in the Persian Gulf Region: U. S. Policy Options and Implications, Senate Committee on Armed Services, 101st Cong., 2d sess. (1990), 701 (Secretary Chaney) (President did not require ``any additional authorization from the Congress'' before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the requested action, stated: ``I don't think I need it. . . . I feel that I have the authority to fully implement the United Nations resolutions.'' 27 Wkly. Comp. Pres. Doc. 25 (Jan. 8, 1991).

\175\P. L. 102-1, 105 Stat. 3.

Although there is recurrent talk within Congress and without with regard to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.\176\

NOTE:

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki.\177\ As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme commander. ``He may invade the hostile country, and subject it to the sovereignty and authority of the United States.''\178\ In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.\179\ He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.\180\ He may, at least with the assent of Congress, authorize intercourse with the enemy.\181\ He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render ``just compensation.''\182\ By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.\183\ He may not, however, affect a permanent acquisition of territory,\184\ though he may govern recently acquired territory until Congress sets up a more permanent regime.\185\

NOTES:

\178\Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).

\179\Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

\180\Totten v. United States, 92 U.S. 105 (1876).

\181\Hamilton v. Dillin, 21 Wall. (88 U.S.) 73 (1875); Haver v. Yaker, 9 Wall. (76 U.S.) 32 (1869).

\182\Mitchell v. Harmony, 13 How. (54 U.S.) 115 (1852); United States v. Russell, 13 Wall. (80 U.S.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).

\183\Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson's Fourteen Points, which were incorporated in the Armistice of November 11, 1918.

\184\Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).

\185\Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230-231 (1901).

He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts-martial.\186\ Indeed, until 1830, courts-martial were convened solely on his authority as Commander-in- Chief.\187\ Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.\188\ Similarly, the power of Congress to ``make rules for the government and regulation of the land and naval forces'' (Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from promulgating in April, 1863, a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.\189\ One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in ``the President alone.''\190\ Also, the President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal ``in pursuance of the sentence of a general court-martial or in mitigation thereof.''\191\ But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.\192\ The President's power of dismissal in time of war Congress has never attempted to limit.

NOTES:

\187\15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary view is stated by Attorney General Wirt.

\188\Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

\189\General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; April 24, 1863.

\190\See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).

\191\10 U.S.C. Sec. 804.

\192\Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).

The Commander-in-Chief a Civilian Officer. -- Is the Commander-in- Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. An opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: ``The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President's duties as Commander in Chief represents only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter's office is a civil office. [Article II, section 1 of the Constitution; vol. 91, Cong. Rec. 4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that `The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' . . . The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:--`It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: `The supremacy of the civil over the military is one of our great heritages.' Duncan v. Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210.''\193\

NOTE:

Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law;\194\ that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.\195\ By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden\196\ that state declarations of martial law were conclusive and therefore not subject to judicial review.\197\ In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases,\198\ while not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.

NOTES:

\195\Id., 539-544.

\196\7 How. (48 U.S.) 1 (1849). See also Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32-33 (1827).

\197\7 How. (48 U.S.), 45.

\198\2 Bl. (67 U.S.) 635 (1863).

The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case,\199\ reverting to the older doctrine, pronounced void President Lincoln's action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as ``spies'' and ``abettors of the enemy.'' The salient passage of the Court's opinion bearing on this point is the following: ``If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.''\200\ Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: ``Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President and Commander-in-Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.

NOTES:

\200\Id., 127.

``. . . We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. ``Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.''\201\ In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

NOTE:

At the turn of the century, however, the Court appears to have retreated from its stand in Milligan insofar as it held in Moyer v. Peabody\202\ that ``the Governor's declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.''\203\ The ``good faith'' test of Moyer, however, was superseded by the ``direct relation'' test of Sterling v. Constantin,\204\ where the Court made it very clear that ``[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.''\205\

NOTES:

\203\Id., 83-85.

\204\287 U.S. 378 (1932). ``The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace'' Id., 399-400.

\205\Id., 400-401. This holding has been ignored by States on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v. Calus, 178 S.C. 381, 183 S.E. 13 (1935); and Joyner v. Browning, 30 F. Supp. 512 (D.C.W.D. Tenn. 1939).

Martial Law in Hawaii. -- The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also ``all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed.'' Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944. By section 67 of the Organic Act of April 30, 1900,\206\ the Territorial Governor was authorized ``in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.'' By section 5 of the Organic Act, ``the Constitution . . . shall have the same force and effect within the said Territory as elsewhere in the United States.'' In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946,\207\ the Court, speaking by Justice Black, held that the term ``martial law'' as employed in the Organic Act, ``while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.''\208\

NOTES:

\207\Duncan v. Kahanamoku, 327 U.S. 304 (1946).

\208\Id., 324.

The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. ``I assume also,'' he said, ``that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts,''\209\ but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that ``courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight.''\210\

NOTES:

\210\Id., 343.

Articles of War: The Nazi Saboteurs. -- The saboteurs were eight youths, seven Germans and one an American, who, following a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. ``. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.''\211\ The second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.\212\ The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,\213\ thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court ad libitum.

NOTES:

\212\Id., 41-42.

\213\Id., 28-29.

The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President's purely martial powers as Commander-in-Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the President without appeals to the courts.

Articles of War: World War II Crimes. -- As a matter of fact, in General Yamashita's case,\214\ which was brought after the termination of hostilities for alleged ``war crimes,'' the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge's dissenting opinion in this case: ``The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply.''\215\ And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor does international law forbid ex post facto laws.\216\

NOTES:

\215\Id., 81.

\216\See Gross, The Criminality of Aggressive War, 41 Am. Pol. Sci. Rev. 205 (1947).

Martial Law and Domestic Disorder. -- President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required.\217\ Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress,\218\ has utilized federal troops on nine occasions, five of them involving resistance to desegregation decrees in the South.\219\ In 1957, Governor Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Eisenhower dispatched federal soldiers and brought the Guard under federal authority.\220\ In 1962, President Kennedy dispatched federal troops to Oxford, Mississippi, when upon the admission of an African American student to the University of Mississippi rioting broke out, with which federal marshals originally assigned could not cope.\221\ In June and September of 1964, President Johnson sent troops into Alabama to enforce court decrees opening schools to blacks.\222\ And in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march.\223\ The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing the marchers protection.\224\

NOTES:

\218\10 U.S.C. Sec. Sec. 331-334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424 1861, 12 Stat. 281, and 1871 17 Stat. 14.

\219\The other instances were in domestic disturbances at the request of state Governors.

\220\Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 Fed. Reg. 7628. See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. Aaron, 358 U.S. 1 (1958); Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark. 1959), affd. sub nom. Faubus v. Aaron, 361 U.S. 197 (1959); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), cert. den. 358 U.S. 829 (1958).

\221\Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 Fed. Reg. 9693 (1962). See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965).

\222\Proc. 3542, 28 Fed. Reg. 5707 (1963); E.O. 11111, 28 Fed. Reg. 5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Fed. Reg. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963).

\223\Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 Fed. Reg. 2743 (1965). See Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965).

\224\Ibid.

The above provisions are the meager residue from a persistent effort in the Federal Convention to impose a council on the President.\225\ The idea ultimately failed, partly because of the diversity of ideas concerning the council's make-up. One member wished it to consist of ``members of the two houses,'' another wished it to comprise two representatives from each of three sections, ``with a rotation and duration of office similar to those of the Senate.'' The proposal which had the strongest backing was that it should consist of the head of departments and the Chief Justice of the Supreme Court, who should preside when the President was absent. Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each principal officer separately and in writing, and is to relate only to the duties of their respective offices.\226\ The Cabinet, as we know it today, that is to say, the Cabinet meeting, was brought about solely on the initiative of the first President,\227\ and may be dispensed with on presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings.\228\

NOTES:

\226\E. Corwin, op. cit., n.44, 82.

\227\L. White, The Federalists--A Study in Administrative History (New York: 1948), ch. 4.

\228\E. Corwin, op. cit., n.44, 19, 61, 79-85, 211, 295-299, 312, 320-323, 490-493.

In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: ``As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.'' Marshall continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument.\229\

NOTE:

In the case of Burdick v. United States,\230\ Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson ``a full and unconditional pardon for all offenses against the United States,'' which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. ``The grace of a pardon,'' remarked Justice McKenna sententiously, ``may be only a pretense . . . involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected. . . .''\231\ Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice.\232\ In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. ``A pardon in our days,'' it said, ``is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.''\233\ Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.\234\ They seem clearly to indicate that by substituting a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.\235\

NOTES:

\231\Id., 90-91.

\232\Armstrong v. United States, 13 Wall. (80 U.S.), 154, 156 (1872). In Brown v. Walker, 161 U.S. 591 (1896), the Court had said: ``It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.'' Id., 599, citing British cases.

\233\Biddle v. Perovich, 274 U.S. 480, 486 (1927).

\234\Cf. W. Humbert, The Pardoning Power of the President (Washington: 1941), 73.

\235\Biddle v. Perovich, 274 U.S. 480, 486 (1927). In Schick v. Reed, 419 U.S. 256 (1976), the Court upheld the presidential commutation of a death sentence to imprisonment for life with no possibility of parole, the foreclosure of parole being contrary to the scheme of the Code of Military Justice. ``The conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.'' Id., 264.

The power embraces all ``offences against the United States,'' except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer,\236\ the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict's consent.\237\ It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense.\238\ It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt--to Aguinaldo's followers--in 1902.\239\ Not, however, till after the Civil War was the point adjudicated, when it was decided in favor of presidential prerogative.\240\

NOTES:

\237\Ex parte William Wells, 18 How. (59 U.S.) 307 (1856). For the contrary view, see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2 Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458 (1845); United States v. Wilson, 7 Pet. (32 U.S.) 150, 161 (1833).

\238\Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, within the same term of court, by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States v. Benz, 282 U.S. 304 (1931).

\239\See 1 J. Richardson, op. cit., n.42, 173, 293; 2 id., 543; 7 id., 3414, 3508; 8 id., 3853; 14 id., 6690.

\240\United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872). See also United States v. Padelford, 9 Wall. (76 U.S.) 531 (1870).

Offenses Against the United States; Contempt of Court. -- In the first place, such offenses are not offenses against the United States. In the second place, they are completed offenses.\241\ The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II's forced abdication.\242\ Lastly, the term has been held to include criminal contempts of court.

Such was the holding in Ex parte Grossman,\243\ where Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. Said he: ``The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt insofar as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law.''\244\ Nor was any new or special danger to be apprehended from this view of the pardoning power. ``If,'' said the Chief Justice, ``we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?'' Indeed, he queried further, in view of the peculiarities of procedure in contempt cases, ``may it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial?''\245\

NOTES:

\242\F. Maitland, Constitutional History of England (London: 1920), 302-306; 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the commission of the offense. A pardon may precede the indictment or other beginning of the criminal proceeding, Ex parte Garland, 4 Wall. (71 U.S.) 333, 380 (1867), as indeed President Ford's pardon of former President Nixon preceded institution of any action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon and Related Matters, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d Congress 2d sess. (1974).

\243\267 U.S. 87 (1925).

\244\Id., 110-111.

\245\Id., 121, 122.

Effects of a Pardon: Ex parte Garland. -- The great leading case is Ex parte Garland,\246\ which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting that he had never voluntarily borne arms against the United States, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so was unable to take the oath, had however received from President Johnson the same year ``a full pardon `for all offences by him committed, arising from participation, direct or implied, in the Rebellion,' . . .'' The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a divided Court: ``The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.''\247\

NOTES:

\247\Id., 380.

Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. ``The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.''\248\ Justice Field's language must today be regarded as much too sweeping in light of a decision rendered in 1914 in the case of Carlesi v. New York.\249\ Carlesi had been convicted several years before of committing a federal offense. In the instant case, the prisoner was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its decision ``must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.''\250\

NOTES:

\249\233 U.S. 51 (1914).

\250\Id., 59.

Limits to the Efficacy of a Pardon. -- But Justice Field's latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is also correct in saying that a full pardon restores a convict to his ``civil rights,'' and this is so even though simple completion of the convict's sentence would not have had that effect. One such right is the right to testify in court, and in Boyd v. United States the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.\251\ But a pardon cannot ``make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.''\252\

NOTES:

\252\Knote v. United States, 95 U.S. 149, 153-154 (1877).

Congress cannot limit the effects of a presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the Government during the Civil War, notwithstanding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. Said Chief Justice Chase for the majority: ``[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end.''\253\ On the other hand, Congress itself, under the necessary and proper clause, may enact amnesty laws remitting penalties incurred under the national statutes.\254\

NOTES:

\254\The Laura, 114 U.S. 411 (1885).

Article II, Section 2, Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.

The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that ``the Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court.''\255\ Not until September 7, ten days before the Convention's final adjournment, was the President made a participant in these powers.\256\ The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of senatorial counsel.\257\ Yet, so late as 1818, Rufus King, Senator from New York, who had been a member of the Convention, declared on the floor of the Senate: ``In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in this capacity the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circumstances, they may think such advice expedient.''\258\

NOTES:

\256\Id., 538-539.

\257\No. 64 (J. Cooke ed., 1961), 435-436.

\258\31 Annals of Congress 106 (1818).

Negotiation, a Presidential Monopoly. -- Actually, the negotiation of treaties had long since been taken over by the President; the Senate's role in relation to treaties is today essentially legislative in character.\259\ ``He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it,'' declared Justice Sutherland for the Court in 1936.\260\ The Senate must, moreover, content itself with such information as the President chooses to furnish it.\261\ In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty, of reservations to the act of ratification, or of statements of understanding or other declarations, the formal difference between the first two and the third being that amendments and reservations, if accepted by the President must be communicated to the other parties to the treaty, and, at least with respect to amendments and often reservations as well, require reopening negotiations and changes, whereas the other actions may have more problematic results.\262\ The act of ratification for the United States is the President's act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business.\263\ Conversely, the President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.\264\

NOTES:

\260\United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

\261\E. Corwin, op. cit., n.44, 428-429.

\262\Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Committee on Foreign Relations by the Congressional Research Service, 103d Cong., 1st sess. (Comm. Print) (1993), 96-98 (hereinafter CRS Study); see also American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), Sec. 314 (hereinafter Restatement, Foreign Relations). See Fourteen Diamond Rings v. United States, 183 U.S. 176, 183 (1901).

\263\Cf. Art. I, Sec. 5, cl. 1; see also Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276, 283-284 (1919).

\264\For instance, see S. Crandall, Treaties, Their Making and Enforcement (Washington: 2d ed. 1916), 53; CRS Study, op. cit., n.264, 109-120.

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: ``A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

``In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.''\265\ To the same effect, but more accurate, is Justice Miller's language for the Court a half century later, in the Head Money Cases: ``A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. . . . But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.''\266\

NOTES:

\266\112 U.S. 580, 598 (1884). For treaty provisions operative as ``law of the land'' (self-executing), see S. Crandall, op. cit., n.264, 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an ``executory'' character, see id., 162-163, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op. cit., n.262, 41-68; Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 111-115.

Origin of the Conception. -- How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress.\267\ The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress' promises was dependent on the state legislatures.\268\ Particularly with regard to provisions of the Treaty of Peace of 1783,\269\ in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists,\270\ the promises were not only ignored but were deliberately flouted by many legislatures.\271\ Upon repeated British protests, John Jay, the Secretary for Foreign Affairs, suggested to Congress that it request state legislatures to repeal all legislation repugnant to the Treaty of Peace and to authorize their courts to carry the treaty into effect.\272\ Although seven States did comply to some extent, the impotency of Congress to effectuate its treaty guarantees was obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation.\273\

NOTES:

\268\S. Crandall, op. cit., n.264, ch. 3.

\269\Id., 30-32. For the text of the Treaty, see 1 W. Malloy (ed.), Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776- 1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586.

\270\Id., 588.

\271\R. Morris, John Jay, the Nation, and the Court (Boston: 1967), 73-84.

\272\S. Crandall, op. cit., n.264, 36-40.

\273\The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, op. cit., n.4, 47, 54, and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id., 245, 316, 2 id., 27- 29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present supremacy clause; the draft omitted the authorization of force from the clause, id., 183, but in another clause the legislative branch was authorized to call out the militia to, inter alia, ``enforce treaties''. Id., 182. The two words were struck subsequently ``as being superfluous'' in view of the supremacy clause. Id., 389-390.

Treaties and the States. -- As it so happened, the first case in which the Supreme Court dealt with the question of the effect of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Commonwealth's paper money, which was depreciating rapidly, was to be legal currency for the payment of debts and to confound creditors who would not accept the currency provided that Virginia citizens could pay into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that the auditor would give the debtor a certificate of payment which would discharge the debtor of all future obligations to the creditor.\274\ The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton\275\ the Court struck down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: ``A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the constitution of a State . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States shall be superior to the Constitution and laws of any individual State; and their will alone is to decide.''\276\

NOTES:

\275\3 Dall. (3 U.S.) 199 (1796).

\276\Id., 236-237 (emphasis by Court).

In Hopkirk v. Bell,\277\ the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate.\278\ Such a case was Hauenstein v. Lynham,\279\ in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same, and to export the proceeds of the sale.\280\

NOTES:

\278\See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 489-490 (1880).

\279\100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197-198 (1961), the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the United States and Yugoslavia were parties, and an Agreement of 1948 between these two nations, coupled with continued American observance of an 1881 treaty granting reciprocal rights of inheritance to Yugoslavian and American nations, were held to preclude Oregon from denying Yugoslavian aliens their treaty rights because of a fear that Yugoslavian currency laws implementing such Agreements prevented American nationals from withdrawing the proceeds from the sale of property inherited in the latter country.

\280\See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a state statute which denied to a non-resident alien wife of a person killed within the State, the right to sue for wrongful death. Such right was afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen's Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato v. Royer, 270 U.S. 535 (1926).

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.\281\ But in Oyama v. California,\282\ a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of the Fourteenth Amendment, a view which has since received the endorsement of the California Supreme Court by a narrow majority.\283\ Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation.\284\

NOTES:

\282\332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334 U.S. 410 (1948), in which a California statute prohibiting the issuance of fishing licenses to persons ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the National Government, namely, the determination of the conditions on which aliens may be admitted, naturalized, and permitted to reside in the United States. For the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon.

\283\This occurred in the much advertised case of Sei Fujii v. State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, ``we are satisfied . . . were not intended to supersede domestic legislation.'' That is, the Charter provisions were not self-executing. Restatement, Foreign Relations, op. cit., n.262, Sec. 701, Reporters' Note 5, pp. 155-156.

\284\Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 187 (1961).

Treaties and Congress. -- In the Convention, a proposal to require the adoption of treaties through enactment of a law before they should be binding was rejected.\285\ But the years since have seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the effects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the ``law of the land'' or whether there are some types of treaty provisions which only a subsequent act of Congress can put into effect? The language quoted above\286\ from Foster v. Neilson\287\ early established that not all treaties are self-executing, for as Marshall there said, a treaty is ``to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.''\288\

NOTES:

\286\Supra, text at n.265.

\287\2 Pet. (27 U.S.) 253, 314 (1829).

\288\Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ``When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect. . . . If the treaty contains stipulations which are self-executing that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.''; S. Crandall, op. cit., n.264, chs. 11-15.

Leaving aside the question when a treaty is and is not self- executing,\289\ the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection with the Jay Treaty,\290\ certain provisions of which required appropriations to carry them into effect. In view of the third clause of Article I, Sec. 9, which says that ``no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . .'', it seems to have been universally conceded that Congress must be applied to if the treaty provisions were to be executed.\291\ A bill was introduced into the House to appropriate the needed funds and its supporters, within and without Congress, offered the contention that inasmuch as the treaty was now the law of the land the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Gallatin contended that the House had complete discretion whether or not to carry into effect treaty provisions.\292\ At the conclusion of the debate, the House voted not only the money but a resolution offered by Madison stating that it did not claim any agency in the treaty-making process, ``but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good.''\293\ This early precedent with regard to appropriations has apparently been uniformly adhered to.\294\

NOTES:

\290\8 Stat. 116 (1794).

\291\The story is told in numerous sources. E.g., S. Crandall, op. cit., n.264, 165-171. For Washington's message refusing to submit papers relating to the treaty to the House, see J. Richardson, op. cit., n.42, 123.

\292\Debate in the House ran for more than a month. It was excerpted from the Annals and separately published as Debates in the House of Representatives of the United States, During the First Session of the Fourth Congress upon the Constitutional Powers of the House with Respect to Treaties (Philadelphia: 1796). A source of much valuable information on the views of the Framers and those who came after them on the treaty power, the debates are analyzed in detail in E. Byrd, Treaties and Executive Agreements in the United States (The Hague: 1960), 35-59.

\293\5 Annals of Congress 771, 782 (1796). A resolution similar in language was adopted by the House in 1871. Cong. Globe, 42d Congress, 1st sess. (1871), 835.

\294\S. Crandall, op. cit., n.264, 171-182; 1 W. Willoughby, The Constitutional Law of the United States (New York: 2d ed. 1929), 549- 552; but see Restatement, Foreign Relations, op. cit., n.262, Sec. 111, Reporters' Note 7, p. 57. See also H. Rept. 4177, 49th Congress, 2d sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

Similarly, with regard to treaties which modify and change commercial tariff arrangements, the practice has been that the House always insisted on and the Senate acquiesced in legislation to carry into effect the provisions of such treaties.\295\ The earliest congressional dispute came over an 1815 Convention with Great Britain,\296\ which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation as the convention might require for effectuation. The Senate and some members of the House were of the view that no implementing legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did not discriminate against United States goods; the House majority felt otherwise and compromise legislation was finally enacted acceptable to both points of view.\297\ But subsequent cases have seen legislation enacted,\298\ the Senate once refused ratification of a treaty, which purported to reduce statutorily-determined duties,\299\ and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity of some form of congressional implementation.

NOTES:

\296\8 Stat. 228 (1815).

\297\3 Stat. 255 (1816). See S. Crandall, op. cit., n.264, 184- 188.

\298\Id., 188-195; 1 W. Willoughby, op. cit., n.294, 555-560.

\299\S. Crandall, op. cit., n.264, 189-190.

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by the Secretary of State, it is said, in summary of the practice and reasoning from the text of the Constitution, that the limitation on the treaty power which necessitate legislative implementation may ``be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . .''\300\ The same thought has been expressed in Congress\301\ and by commentators.\302\ Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the courts.

NOTES:

\301\At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self-executing and others not. 29 Annals of Congress 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained ``stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory. . . .'' Id., 1019. Much the same language was included in a later report. H. Rept. No. 37, 40th Congress, 2d sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C.Cir.), cert. den., 436 U. S. 907 (1978).

\302\T. Cooley, General Principles of Constitutional Law (New York: 3d ed. 1898, 175; Q. Wright, The Control of American Foreign Relations (New York: 1922), 353-356.

Congressional Repeal of Treaties. -- It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress' constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: ``Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.''\303\

NOTE:

Treaties Versus Prior Acts of Congress. -- The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. Chief Justice Marshall early asserted that the converse would be true as well,\304\ that a treaty which is self-executing is the law of the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta.\305\ But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: ``In fact, however, there have been few (the writer is not certain that there has been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject.''\306\

NOTES:

\305\E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220-221 (1902); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320-321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).

\306\1 W. Willoughby, op. cit., n.294, 555.

The one instance that may be an exception\307\ is Cook v. United States.\308\ There, a divided Court held that a 1924 treaty with Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were within the distance from the coast that could be traversed in one hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of the Tariff Act of 1922\309\ for Coast Guard officers to inspect and seize any vessel within four leagues--12 miles--of the coast under like circumstances. The difficulty with the case is that the Tariff Act provision had been reenacted in 1930,\310\ so that a simple application of the rule of the later governing should have caused a different result. It may be suspected that the low estate to which Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more than slightly influential in the Court's decision.

NOTES:

\308\288 U.S. 102 (1933).

\309\42 Stat. 858, 979, Sec. 581.

\310\46 Stat. 590, 747, Sec. 581.

When Is a Treaty Self-Executing. -- Several references have been made above to a distinction between treaties as self-executing and as merely executory. But what is it about a treaty that makes it the law of the land and which gives a private citizen the right to rely on it in a court of law? As early as 1801, the Supreme Court took notice of a treaty and finding it applicable to the situation before gave judgment for the petitioner based on it.\311\ In Foster v. Neilson,\312\ Chief Justice Marshall explained that a treaty is to be regarded in courts ``as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.'' It appears thus that the Court has had in mind two characteristics of treaties which keep them from being self-executing. First, ``when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.''\313\ In other words, the treaty itself may by its terms require implementation, as by an express stipulation for legislative execution.\314\

NOTES:

\312\2 Pet. (27 U.S.) 253, 314-315 (1829).

\313\Ibid.

\314\Generally, the qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to the former, it has always apparently been the practice to insert in treaties affecting the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress. 1 W. Willoughby, op. cit., n.294, 558. Perhaps of the same nature was a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article V of the Webster- Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by the two States and payment to them of compensation. S. Crandall, op. cit., n.264, 222-224.

Second, the nature of the stipulation may require legislative execution. That is, with regard to the issue discussed above, whether the delegated powers of Congress imposes any limitation on the treaty power, it may be that a treaty provision will be incapable of execution without legislative action. As one authority says: ``Practically this distinction depends upon whether or not the courts and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities. . . .

``Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered. . . .

``On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc.''\315\ It may well be that these two characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them.\316\

NOTES:

\316\Thus, compare Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314- 315 (1829), with Cook v. United States, 288 U.S. 102, 118-119 (1933).

Treaties and the Necessary and Proper Clause. -- What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress' enumerated powers, then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.\317\ Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements and such legislation has been upheld.\318\

NOTES:

\318\See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083-4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957).

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.\319\ And Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.\320\ Referring to such legislation, the Court has said: ``The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with foreign power.''\321\ In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress' enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; the only question that can be raised as to such measures will be whether they are ``necessary and proper'' measures for the carrying of the treaty in question into operation.

NOTES:

\320\Baldwin v. Franks, 120 U.S. 678, 683 (1887).

\321\Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842), in the following words: ``Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.'' Id., 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power ``to carry into effect rights expressly given and duties expressly enjoined'' by the Constitution. Id., 618-619. However, the treaty-making power is neither a right nor a duty, but one of the powers ``vested by this Constitution in the Government of the United States.'' Art. I, Sec. 8, cl. 18.

The foremost example of this interpretation is Missouri v. Holland.\322\ There, the United States and Great Britain had entered into a treaty for the protection of migratory birds,\323\ and Congress had enacted legislation pursuant to the treaty to effectuate it.\324\ The State objected that such regulation was reserved to the States by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty.\325\ Noting that treaties ``are declared the supreme law of the land,'' Justice Holmes for the Court said: ``If the treaty is valid there can be no dispute about the validity of the statute under Article I, Sec. 8, as a necessary and proper means to execute the powers of the Government.''\326\ ``It is obvious,'' he continued, ``that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, `a power which must belong to and somewhere reside in every civilized government' is not to be found.''\327\ Since the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was one ``necessary and proper'' to effectuate the treaty.

NOTES:

\323\39 Stat. 1702 (1916).

\324\40 Stat. 755 (1918).

\325\United States v. Shauver, 214 F. 154 (E.D.Ark. 1914); United States v. McCullagh, 221 F. 288 (D.Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress' power under the commerce clause would be deemed more than adequate but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918).

\326\Missouri v. Holland, 252 U.S. 416, 432 (1920).

\327\Id., 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903).

A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ``are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.''\328\ As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed the Court has numerous times so stated.\329\ It does not appear that the Court has ever held a treaty unconstitutional,\330\ although there are examples in which decision was seemingly based on a reading compelled by constitutional considerations.\331\ In fact, there would be little argument with regard to the general point were it not for certain dicta in Justice Holmes' opinion in Missouri v. Holland.\332\ ``Acts of Congress,'' he said, ``are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.'' Although he immediately followed this passage with a cautionary ``[w]e do not mean to imply that there are no qualifications to the treaty-making power . . . ,''\333\ the Justice's language and the holding by which it appeared that the reserved rights of the States could be invaded through the treaty power led in the 1950s to an abortive effort to amend the Constitution to restrict the treaty power.\334\

NOTES:

\329\``The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.'' Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853). ``It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.'' The Cherokee Tobacco, 11 Wall. (78 U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).

\330\1 W. Willoughby, op. cit., n.294, 561; L. Henkin, op. cit., n.315, 137. In Power Authority of New York v. FPC, 247 F. 2d 538 (2d Cir. 1957), a reservation attached by the Senate to a 1950 treaty with Canada was held invalid. The court observed that the reservation was properly not a part of the treaty but that if it were it would still be void as an attempt to circumvent constitutional procedures for enacting amendments to existing federal laws. The Supreme Court vacated the judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement with Canada was held void as conflicting with existing legislation. The Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296 (1955).

\331\Cf. City of New Orleans v. United States, 10 Pet. (35 U.S.) 662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).

\332\252 U.S. 416 (1920).

\333\Id., 433. Subsequently, he also observed: ``The treaty in question does not contravene any prohibitory words to be found in the Constitution.'' Ibid.

\334\The attempt, the so-called ``Bricker Amendment,'' was aimed at the expansion into reserved state powers through treaties as well as at executive agreements. The key provision read: ``A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.'' S.J. Res. 43, 82d Congress, 1st sess. (1953), Sec. 2. See also S.J. Res. 1, 84th Congress, 1st sess. (1955), Sec. 2. Extensive hearings developed the issues thoroughly but not always clearly. Hearings on S.J. Res. 130, Before a Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d sess. (1952). Hearings on S.J. Res. 1 & 43, Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st sess. (1953); Hearings on S.J. Res. 1, Before a Subcommittee of the Senate Judiciary Committee, 84th Congress, 1st sess. (1955). See L. Henkin, op. cit., n.315, 383- 385.

Controversy over the Holmes language apparently led Justice Black in Reid v. Covert\335\ to deny that the difference in language of the supremacy clause with regard to statutes and with regard to treaties was relevant to the status of treaties as inferior to the Constitution. ``There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in `pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.''\336\

NOTES:

\336\Id., 16-17. For discussions of the issue, see American Law Institute, op. cit., n.262, Sec. 302; Nowak & Rotunda, A Comment on the Creation and Resolution of a ``Non-Problem:'' Dames & Moore v. Regan, the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. Rev. 1129 (1982); L. Henkin, op. cit., n.315, 137-156.

Establishment of the general principle, however, is but the beginning; there is no readily agreed-upon standard for determining what the limitations are. The most persistently urged proposition in limitation has been that the treaty power must not invade the reserved powers of the States. In view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed.\337\ Nevertheless, the issue, in the context of Congress' power under the necessary and proper clause to effectuate a treaty dealing with a subject arguably within the domain of the States, was presented as recently as 1920, when the Court upheld a treaty and implementing statute providing for the protection of migratory birds.\338\ ``The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.''\339\ The gist of the holding followed. ``Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed.''\340\

NOTES:

\338\Missouri v. Holland, 252 U.S. 416 (1920).

\339\Id., 433.

\340\Id., 435.

The doctrine which seems deducible from this case and others is ``that in all that properly relates to matters of international rights and obligations, whether these rights and obligations rest upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses all the powers of a constitutionally centralized sovereign State; and, therefore, that when the necessity from the international standpoint arises the treaty power may be exercised, even though thereby the rights ordinarily reserved to the States are invaded.''\341\ It is not, in other words, the treaty power which enlarges either the federal power or the congressional power but the international character of the interest concerned which might be acted upon.

NOTE:

Dicta in some of the cases lend support to the argument that the treaty power is limited by the delegation of powers among the branches of the National Government\342\ and especially by the delegated powers of Congress, although it is not clear what the limitation means. If it is meant that no international agreement could be constitutionally entered into by the United States within the sphere of such powers, the practice from the beginning has been to the contrary;\343\ if it is meant that treaty provisions dealing with matters delegated to Congress must, in order to become the law of the land, receive the assent of Congress through implementing legislation, it states not a limitation on the power of making treaties as international conventions but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them.

NOTES:

\343\Q. Wright, op. cit., n.302, 101-103. See also, L. Henkin, op. cit., n.315, 148-151.

It has also been suggested that the prohibitions against governmental action contained in the Constitution, the Bill of Rights particularly, limit the exercise of the treaty power. No doubt this is true, though again there are no cases which so hold.\344\

NOTE:

One other limitation of sorts may be contained in the language of certain court decisions which seem to say that only matters of ``international concern'' may be the subject of treaty negotiations.\345\ While this may appear to be a limitation, it does not take account of the elasticity of the concept of ``international concern'' by which the subject matter of treaties has constantly expanded over the years.\346\ At best, any attempted resolution of the issue of limitations must be an uneasy one.\347\

NOTES:

\346\Cf. L. Henkin, op. cit., n.315, 151-156.

\347\Other reservations which have been expressed may be briefly noted. It has been contended that the territory of a State could not be ceded without such State's consent. Geofroy v. Riggs, 133 U.S. 258, 267 (1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541 (1885). Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see S. Crandall, op. cit., n.264, 220-229; 1 W. Willoughby, op. cit., 294, 572-576.
A further contention is that while foreign territory can be annexed to the United States by the treaty power, it could not be incorporated with the United States except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310-344 (1901) (four Justices dissenting). This argument appears to be a variation of the one in regard to the correct procedure to give domestic effect to treaties.
Another argument grew out the XII Hague Convention of 1907, proposing an International Prize Court with appellate jurisdiction from national courts in prize cases. President Taft objected that no treaty could transfer to a tribunal not known to the Constitution any part of the judicial power of the United States and a compromise was arranged. Q. Wright, op. cit., n.302, 117-118; H. Rept. No. 1569, 68th Congress, 2d sess. (1925).

In brief, the fact that all the foreign relations power is vested in the National Government and that no formal restriction is imposed on the treaty-making power in the international context\348\ leaves little room for the notion of a limited treaty-making power with regard to the reserved rights of the States or in regard to the choice of matters concerning which the Federal Government may treat with other nations; protected individual rights appear to be sheltered by specific constitutional guarantees from the domestic effects of treaties, and the separation of powers at the federal level may require legislative action to give municipal effect to international agreements.

NOTE:

The repeal by Congress of the ``self-executing'' clauses of a treaty as ``law of the land'' does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence, the questions arise where the Constitution lodges this power and where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress by the Act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.\349\ This act was followed two days later by one authorizing limited hostilities against the same country; in the case of Bas v. Tingy,\350\ the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring ``public war'' upon the French Republic.

NOTES:

\350\4 Dall. (4 U. S.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of this situation.

Termination of Treaties by Notice. -- Typically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties?\351\ Reasonable arguments may be made locating the power in the President alone, in the President-and-Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is as well required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.

NOTE:

Definitive resolution of this argument appears remotely possible. Historical practice provides support for all three arguments, and the judicial branch seems unlikely to essay any answer.

While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a public law, many instances may be cited of congressional actions mandating terminations by notice of the President or changing the legal environment so that the President is required to terminate. The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846,\352\ when by joint resolution Congress authorized the President at his discretion to notify the British government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only through action of Congress.\353\ Subsequently, Congress has often passed resolutions denouncing treaties or treaty provisions, which by their own terms were terminable on notice, and Presidents have usually, though not invariably, carried out such resolutions.\354\ By the La Follette-Furuseth Seaman's Act,\355\ President Wilson was directed, ``within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties,'' and the required notice was given.\356\ When, however, by section 34 of the Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, with which the Act was not in conflict but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he ``did not deem the direction contained in section 34 . . . an exercise of any constitutional power possessed by Congress.''\357\ The same attitude toward section 34 was continued by Presidents Harding and Coolidge.\358\

NOTES:

\353\S. Crandall, op. cit., n.264, 458-459.

\354\Id., 459-462; Q. Wright, op. cit., n.302, 258.

\355\38 Stat. 1164 (1915).

\356\S. Crandall, op. cit., n.264, 460. See Van der Weyde v. Ocean Transp. Co., 297 U. S. 114 (1936).

\357\41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 Am. J. Int'l. L. 33 (1921). In 1879, Congress passed a resolution requiring the President to abrogate a treaty with China, but President Hayes vetoed it, partly on the ground that Congress as an entity had no role to play in ending treaties, only the President with the advice and consent of the Senate. 9 J. Richardson, op. cit., n.42, 4466, 4470-4471. For the views of President Taft on the matter in context, see W. Taft, The Presidency, Its Duties, Its Powers, Its Opportunities and Its Limitations (New York: 1916), 112- 113.

\358\Since this time, very few instances appear in which Congress has requested or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be Sec. 313 of the Anti-Apartheid Act of 1986, which required the Secretary of State to terminate immediately, in accordance with its terms, the tax treaty and protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L. 99-440, 100 Stat. 3515, 22 U.S.C. Sec. 5063.

Very few precedents exist in which the President terminated a treaty after obtaining the approval of the Senate alone. The first occurred in 1854-1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark.\359\ When the validity of this action was questioned in the Senate, the Committee on Foreign Relations reported that the procedure was correct, that prior full-Congress actions were incorrect, and that the right to terminate resides in the treaty-making authorities, the President and the Senate.\360\

NOTES:

\360\S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7. The other instance was President Wilson's request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 Cong. Rec. 1793-1794 (1921). See CRS Study, op. cit., n.262, 161-162.

Examples of treaty terminations in which the President acted alone are much disputed with respect both to facts and to the underlying legal circumstances.\361\ Apparently, President Lincoln was the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action.\362\ The first such action by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an 1850 treaty with Switzerland, but the action may be explainable as the treaty being inconsistent with a subsequently enacted law.\363\ Other such renunciations by the President acting on his own have been similarly explained, and similarly the explanations have been controverted. While the Department of State, in setting forth legal justification for President Carter's notice of termination of the treaty with Taiwan, cited many examples of the President acting alone, many of these are ambiguous and may be explained away by, i.e., conflicts with later statutes, changed circumstances, or the like.\364\

NOTES:

\362\13 Stat. 568 (1865).

\363\The treaty, see 11 C. Bevans, Treaties and Other International Agreements of the United States of America (Washington: 1970), 894, was probably at odds with the Tariff Act of 1897. 30 Stat. 151.

\364\Compare the views expressed in the Hansell and Goldwater memoranda, op. cit., n.361. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld, The Power of Congress and the President in International Relations, 25 Calif. L. Rev. 643, 658-665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 Minn. L. Rev. 879 (1958).

No such ambiguity accompanied President Carter's action on the Taiwan treaty,\365\ and a somewhat lengthy Senate debate was provoked. In the end, the Senate on a preliminary vote approved a ``sense of the Senate'' resolution claiming for itself a consenting role in the termination of treaties, but no final vote was ever taken and the Senate thus did not place itself in conflict with the President.\366\ However, several Members of Congress went to court to contest the termination, apparently the first time a judicial resolution of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.\367\ While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.\368\

NOTES:

\366\Originally, S. Res. 15 had disapproved presidential action alone, but it was amended and reported by the Foreign Relations Committee to recognize at least 14 bases of presidential termination. S. Rept. No. 119, 96th Congress, 1st sess. (1979). In turn, this resolution was amended to state the described sense of the Senate view, but the matter was never brought to final action. See 125 Cong. Rec. 13672, 13696, 13711, 15209, 15859 (1979).

\367\Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because of the political question doctrine, id., 1002, but one other Justice in the majority and one in dissent rejected this analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine.

\368\Cf. Baker v. Carr, 369 U.S. 186, 211-213, 217 (1962).

Determination Whether a Treaty Has Lapsed. -- At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton's opinion in Charlton v. Kelly\369\ is pertinent: ``If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. . . . That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. . . . The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition.''\370\ So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.\371\

NOTES:

\370\Id., 473-476.

\371\Clark v. Allen, 331 U.S. 503 (1947).

Status of a Treaty a Political Question. -- At any rate, it is clear that many questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:\372\ It is not ``a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. . . . These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. The y belong to diplomacy and legislation, and not to the administration of existing laws and it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government.'' Chief Justice Marshall's language in Foster v. Neilson\373\ is to the same effect.

NOTES:

\373\2 Pet. (27 U.S.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, op. cit., n.315, 208-216; Restatement, Foreign Relations, op. cit., n.262, Sec. 326.

In the early cases of Cherokee Nation v. Georgia,\374\ and Worcester v. Georgia,\375\ the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies ``between a State or the citizens thereof and foreign states, citizens or subjects.'' Second, it held: ``The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words `treaty' and `nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.''\376\

NOTES:

\375\6 Pet. (31 U.S.) 515 (1832).

\376\Id., 558.

Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations,\377\ that the States were incompetent to interfere with rights created by such treaties,\378\ that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State,\379\ that a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of a State,\380\ and that an act of Congress contrary to a prior Indian treaty repealed it.\381\

NOTES:

\378\The New York Indians, 5 Wall. (72 U.S.) 761 (1867).

\379\The Kansas Indians, 5 Wall. (72 U.S.) 737, 757 (1867).

\380\United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).

\381\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871). See also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898).

Present Status of Indian Treaties. -- Today, the subject of Indian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was provided ``That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.''\382\ Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.\383\ Similarly, statutes modifying rights of members in tribal lands,\384\ granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,\385\ or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,\386\ have been sustained.

NOTES:

\383\Ward v. Race Horse, 163 U.S. 504 (1896).

\384\Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

\385\Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 (1890).

\386\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871).

When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.\387\

NOTE:

A regular staple of each Term's docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the States. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.

The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between ``treaties'' and ``agreements'' or ``compacts'' but does not indicate what the difference is.\388\ The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.

NOTE:

During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded.\389\

NOTE:

One must, of course, interpret the raw figures carefully. Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander-in-Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate.\390\ Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation among the kinds of agreements which are classed under this single heading.\391\

NOTES:

\391\``[T]he distinction between so-called `executive agreements' and `treaties' is purely a constitutional one and has no international significance.'' Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 Amer. J. Int. L. 697 (Supp.) (1935). See E. Byrd, op. cit., n.292, 148-151. Many scholars have aggressively promoted the use of executive agreements, in contrast to treaties, as a means of enhancing the role of the United States, especially the role of the President, in the international system. See McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 Yale L. J. 181, 534 (1945).

Congress early authorized the entry into negotiation and agreement of officers of the executive branch with foreign governments, authorizing the borrowing of money from foreign countries\392\ and appropriating money to pay off the government of Al giers to prevent pirate attacks on United States shipping.\393\ Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to ``make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.''\394\ Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.\395\ A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks.\396\

NOTES:

\393\W. McClure, International Executive Agreements (New York: 1941), 41.

\394\Id., 38-40. The statute was 1 Stat. 232, 239, 26 (1792).

\395\Id., 62-70.

\396\Id., 78-81; S. Crandall, op. cit., n.264, 127-131; see CRS Study, op. cit., n.262, 52-55.

Reciprocal Trade Agreements. -- But the most copious source of executive agreements has been legislation which provided authority for the entering into of reciprocal trade agreements with other nations.\397\ Such agreements in the form of treaties providing for the reciprocal reduction of duties subject to implementation by Congress were frequently entered into,\398\ but beginning with the Tariff Act of 1890\399\ Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of subsequent legislative action. The authority was widened in successive acts.\400\ Then, in the Reciprocal Trade Agreements Act of 1934,\401\ Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect through proclamation.\402\

NOTES:

\398\Id., 8, 59-60.

\399\Sec. 3, 26 Stat. 567, 612.

\400\Tariff Act of 1897, Sec. 3, 30 Stat. 15, 203; Tariff Act of 1909, 36 Stat. 11, 82.

\401\48 Stat. 943, Sec. 350(a), 19 U.S.C. Sec. Sec. 1351-1354.

\402\See the continued expansion of the authority. Trade Expansion Act of 1962, 76 Stat. 872, Sec. 201, 19 U.S.C. Sec. 1821; Trade Act of 1974, 88 Stat. 1982, as amended, 19 U.S.C. Sec. Sec. 2111, 2115, 2131(b), 2435. Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices of GATT, constrained itself in considering implementing legislation, creating a ``fast-track'' procedure under which legislation is brought up under a tight timetable and without the possibility of amendment. 19 U.S.C. Sec. Sec. 2191-2194.

The Constitutionality of Trade Agreements. -- In Field v. Clark,\403\ this type of legislation was sustained against the objection that it attempted an unconstitutional delegation ``of both legislative and treaty-making powers.'' The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with a curt rejection: ``What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President.''\404\ Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,\405\ decided twenty years later, a collateral question was passed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which ``the validity or construction of any treaty . . . was drawn in question'' embraced a case involving a trade agreement which had been made under the sanction of Tariff Act of 1897. Said the Court: ``While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, Sec. 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court.''\406\

NOTES:

\404\Id., 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court sustained a series of implementing actions by the President pursuant to executive agreements with Iran in order to settle the hostage crisis. The Court found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly ratified over time by Congress' failure to set aside the asserted power. Also see Weinberger v. Rossi, 456 U.S. 25, 29-30 n. 6 (1982).

\405\224 U.S. 583 (1912).

\406\Id., 601.

The Lend-Lease Act. -- The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations, and took place at a time when war appeared to be in the offing and was in fact only a few months away. The legislation referred to is the Lend-Lease Act of March 11, 1941,\407\ by which the President was empowered for something over two years -- and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so -- to authorize ``the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government,'' to manufacture in the government arsenals, factories, and shipyards, or ``otherwise procure,'' to the extent that available funds made possible, ``defense articles''--later amended to include foodstuffs and industrial products--and ``sell, transfer title to, exchange, lease, lend, or otherwise dispose of,'' the same to the ``government of any country whose defense the President deems vital to the defense of the United States,'' and on any terms that he ``deems satisfactory.'' Under this authorization the United States entered into Mutual Aid Agreements whereby the Government furnished its allies in World War II forty billions of dollars worth of munitions of war and other supplies.

NOTE:

International Organizations. -- Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations\408\ and participating in international conventions.\409\

NOTES:

\409\See E. Corwin, op. cit., n.44, 216.

Arbitration Agreements. -- In 1904-1905, Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: ``In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure.''\410\ The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting the word ``treaty'' for ``agreement.'' President Theodore Roosevelt, characterizing the ``ratification'' as equivalent to rejection, sent the treaties to repose in the archives. ``As a matter of historical practice,'' Dr. McClure comments, ``the compromis under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,''\411\ a statement supported by both Willoughby and Moore.\412\

NOTES:

\411\Id., 14.

\412\1 W. Willoughby, op. cit., n.294, 543.

Agreements Under the United Nations Charter. -- Article 43 of the United Nations Charter provides: ``1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. The y shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.''\413\ This time the Senate did not boggle over the word ``agreement.''

NOTE:

The United Nations Participation Act of December 20, 1945, implements these provisions as follows: ``The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.''\414\

NOTE:

Status of Forces Agreements. -- Negotiated pursuant to authorizations contained in treaties between the United States and foreign nations in the territory of which American troops and their dependents are stationed, these Agreements afford the United States a qualified privilege, which may be waived, of trying by court martial soldiers and their dependents charged with commission of offenses normally within the exclusive, criminal jurisdiction of the foreign signatory power. When the United States, in conformity with the waiver clause in such an Agreement, consented to the trial in a Japanese court of a soldier charged with causing the death of a Japanese woman on a firing range in that country, the Court could ``find no constitutional barrier'' to such action.\415\ However, at least five of the Supreme Court Justices were persuaded to reject at length the contention that such Agreements could sustain, as necessary and proper for their effectuation, implementing legislation subsequently found by the Court to contravene constitutional guaranties set forth in the Bill of Rights.\416\

NOTES:

\416\Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality opinion); Ibid., 66 (Justice Harlan concurring).

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, ``the mere private rights of sovereignty.''\417\ Crandall lists scores of such agreements entered into with other governments by the authorization of the President.\418\ Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the ``protocol'' which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both before and after the war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

NOTES:

\418\S. Crandall, op. cit., n.264, ch. 8; see also W. McClure, op. cit., n.393, chs. 1, 2.

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate wwas required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.\419\ Of a kindred type, and owing much to the President's capacity as Commander-in-Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.\420\ Commenting on such an agreement, the Court remarked, a bit uncertainly: ``While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.''\421\ Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.\422\

NOTES:

\420\Id., 81-82.

\421\Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).

\422\Id., 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. Q. Wright, op. cit., n.302, 239 (quoting Watts v. United States, 1 Wash. Terr. 288, 294 (1870)).

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, ``would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars.''\423\ Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace,\424\ just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander-in-Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.\425\ Commenting on the Peking protocol Willoughby quotes with approval the following remark: ``This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.''\426\

NOTES:

\424\S. Crandall, op. cit., n.264, 103-104.

\425\Id., 104.

\426\1 W. Willoughby, op. cit., n.294, 539.

It was during this period, too, that John Hay, as McKinley's Secretary of State, initiated his ``Open Door'' policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.\427\ Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.\428\ Three years later, Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.\429\ Meantime, in 1907, by a ``Gentleman's Agreement,'' the Mikado's government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's ``special interests'' in China, and Japan assented to the principle of the Open Door in that country.\430\

NOTES:

\428\Id., 96-97.

\429\Id., 98-99.

\430\Id., 99-100.

The Litvinov Agreement. -- The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.\431\

NOTE:

The Hull-Lothian Agreement. -- With the fall of France in June, 1940, President Roosevelt entered that summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the European war to one of semi-belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on Defense which would ``consider in the broad sense the defense of the north half of the Western Hemisphere.''\432\ Second, and more important than the first, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease for ninety-nine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government fifty over-age destroyers which had been reconditioned and recommissioned.\433\ And on April 9, 1941, the State Department, in consideration of the just-completed German occupation of Denmark, entered into an executive agreement with the Danish minister in Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense.\434\

NOTES:

\433\Id., 391-393. Attorney General Jackson's defense of the presidential power to enter into the arrangement placed great reliance on the President's ``inherent'' powers under the Commander-in-Chief clause and as sole organ of foreign relations but ultimately found adequate statutory authority to take the steps deemed desirable. 39 Ops. Atty. Gen. 484 (1940).

\434\4 Dept. State Bull. 443 (1941).

The Post-War Years. -- Post-war diplomacy of the United States was greatly influenced by the executive agreements entered into at Cairo, Teheran, Yalta, and Potsdam.\435\ For a period, the formal treaty--the signing of the United Nations Charter and the entry into the multinational defense pacts, like NATO, SEATO, CENTRO, and the like-- reestablished itself, but soon the executive agreement, as an adjunct of treaty arrangement or solely through presidential initiative, again became the principal instrument of United States foreign policy, so that it became apparent in the 1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves.\436\ Congressional disquietitude did not result in anything more substantial than passage of a ``sense of the Senate'' resolution expressing a desire that ``national commitments'' be made more solemnly in the future than in the past.\437\

NOTES:

\436\For a congressional attempt to evaluate the extent of such commitments, see United States Security Agreements and Commitments Abroad, Hearings Before a Subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st sess. (1969), 10 pts.; see also U.S. Commitments to Foreign Powers, Hearings Before the Senate Foreign Relations Committee on S. Res. 151, 90th Congress, 1st sess. (1967).

\437\The ``National Commitments Resolution,'' S. Res. 85, 91st Congress, 1st sess., passed by the Senate June 25, 1969. See also S. Rept. No. 797, 90th Congress, 1st sess. (1967). See the discussion of these years in CRS Study, op. cit., n.262, 169-202.

When the President enters into an executive agreement, what sort of obligation is thereby imposed upon the United States? That international obligations of potentially serious consequences may be imposed is obvious and that such obligations may linger for long periods of time is equally obvious.\438\ But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned?\439\ Executive agreements entered into pursuant to congressional authorization and probably through treaty obligations present little doctrinal problem; those arrangements which the President purports to bind the Nation with solely on the basis of his constitutional powers, however, do raise serious questions.

NOTES:

\439\See E. Byrd, op. cit., n.292, 151-157.

Until recently, it was the view of most judges and scholars that this type of executive agreement did not become the ``law of the land'' pursuant to the supremacy clause because the treaty format was not adhered to.\440\ A different view seemed to underlay the Supreme Court decision in B. Altman & Co. v. United States,\441\ in which it was concluded that a jurisdictional statute reference to ``treaty'' encompassed an executive agreement. The idea flowered in United States v. Belmont,\442\ where the Court, in an opinion by Justice Sutherland, following on his Curtiss-Wright\443\ opinion, gave domestic effect to the Litvinov Agreement. At issue was whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The President's act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, ``as the sole organ'' of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state laws and policies make any difference in such a situation, for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds ``in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.''\444\

NOTES:

\441\224 U.S. 583 (1912).

\442\301 U.S. 324 (1937).

\443\United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

\444\Id., 330-332.

In United States v. Pink,\445\ decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was ``a modest implied power of the President who is the `sole organ of the Federal Government in the field of international relations'. . . . It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. . . . We would usurp the executive function if we held that the decision was not final and conclusive on the courts.

NOTE:

``It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy. . . . But state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. . . . Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . . must give way before the superior Federal policy evidenced by a treaty or international compact or agreement. . . .

``The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would `imperil the amicable relations between governments and vex the peace of nations.' . . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. . . .

``No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.''\446\

NOTE:

No Supreme Court decision subsequent to Belmont and Pink is available for consideration.\447\ Whether the cases in fact turned on the particular fact that the executive agreement in question was incidental to the President's right to recognize a foreign state, despite the language which equates treaties and executive agreements for purposes of domestic law, cannot be known. Certainly, executive agreements entered into solely on the authority of the President's constitutional powers are not the law of the land because of the language of the supremacy clause, and the absence of any congressional participation denies them the political requirements they may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law.\448\ This status was another element in the movement for a constitutional amendment in the 1960s to limit the President's powers in this field, a movement that ultimately failed.\449\

NOTES:

\448\But see United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir., 1953), wherein Chief Judge Parker held that an executive agreement entered into by the President without congressional authorization or ratification could not displace domestic law inconsistent with such agreement. The Supreme Court affirmed on other grounds and declined to consider this matter. 348 U.S. 296 (1955).

\449\There were numerous variations in language, but typical was Sec. 3 of S.J. Res. 1, as reported by the Senate Judiciary Committee, 83d Congress, 1st sess. (1953), which provided: ``Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.'' The limitation relevant on this point was in Sec. 2, which provided: ``A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.''

``An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.''\450\

NOTE:

Ambassadors and Other Public Ministers. -- The term ``ambassadors and other public ministers,'' comprehends ``all officers having diplomatic functions, whatever their title or designation.''\451\ It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority--the President and Senate--deemed desirable.\452\ During the first sixty-five years of the Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation, even of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money ``for the expenses of foreign intercourse,'' to be expended at the discretion of the President. In Madison's second term, the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.

NOTES:

\452\It was so assumed by Senator William Maclay. The Journal of William Maclay, E. Maclay ed. (New York: 1890), 109-110.

In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument, it was answered that the Constitution recognizes ``two descriptions of offices altogether different in their nature, authorized by the constitution-- one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the Government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive.''\453\

NOTE:

By the opening section of the act of March 1, 1855, it was provided that ``from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,'' with a specified annual compensation for each, ``to the following countries. . . .'' In the body of the act was also this provision: ``The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the Government at the time of their appointment. . . .''\454\ The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was ``to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more.''\455\

NOTES:

\455\7 Ops. Atty. Gen. 186, 220 (1855).

This line of reasoning is only partially descriptive of the facts. The Foreign Service Act of 1946,\456\ pertaining to the organization of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as to duties. Under the terms thereof the President, by and with the advice and consent of the Senate, appoints ambassadors, ministers, foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations of a Board of the Foreign Service.

NOTE:

What the President may have lost in consequence of the intervention of Congress in this field, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called ``special,'' ``personal,'' or ``secret'' agents without consulting the Senate. When President Jackson's right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. ``The practice of appointing secret agents,'' said Livingston, ``is coeval with our existence as a nation, and goes beyond our acknowledgement as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris.

``These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect.''\457\

NOTE:

The precedent afforded by Humphreys' appointment without reference to the Senate has since been multiplied many times,\458\ as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J. H. Blount to Hawaii in 1893. The last named case is perhaps the most extreme of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given ``paramount authority'' over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect American lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: ``A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. . . . These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, . . . .''\459\ The continued vitality of the practice is attested by such names as Colonel House, the late Norman H. Davis, who filled the role of ``ambassador at large'' for a succession of administrations of both parties, Professor Philip Jessup, Mr. Averell Harriman, and other ``ambassadors at large'' of the Truman Administration, and Professor Henry Kissinger of the Nixon Administration.

NOTES:

\459\S. Rept. No. 227, 53d Congress, 2d Sess. (1894), 25. At the outset of our entrance into World War I President Wilson dispatched a mission to ``Petrograd,'' as it was then called, without nominating the Members of it to the Senate. It was headed by Mr. Elihu Root, with ``the rank of ambassador,'' while some of his associates bore ``the rank of envoy extraordinary.''

How is the practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of ``office'' in the strict sense. In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of Article I, Sec. 6, clause 2 of the Constitution, which provides that ``no Senator or Representative shall . . . be appointed to any civil Office under the Authority of the United States, which shall have been created,'' during his term; and no officer of the United States, ``shall be a Member of either House during his Continuance in Office.''\460\ The Treaty of Peace with Spain, the treaty to settle the Bering Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives.

NOTE:

That the Constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. The former is by law and takes place by virtue of Congress' power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers.\461\ As an incident to the establishment of an office, Congress has also the power to determine the qualifications of the officer and in so doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President's selection to a small number of persons to be named by others.\462\ Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.\463\ Despite the record of the past, however, it is not at all clear that Congress may cabin the President's discretion, at least for offices that he considers important, by, for example, requiring him to choose from lists compiled by others. To be sure, there are examples, but they are not free of ambiguity.\464\

NOTES:

\462\See Myers v. United States, 272 U.S. 52, 264-274 (1926) (Justice Brandeis dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided ``that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation.'' Id., 128-129. For reiteration of Congress' general powers, see Buckley v. Valeo, 424 U.S. 1, 134-135 (1976); Morrison v. Olson, 487 U.S. 654, 673-677 (1988). And see United States v. Ferriera, 13 How. (54 U.S.) 40, 51 (1851).

\463\See data in E. Corwin, op. cit., n.44, 363-365. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as Regents of Smithsonian Institution, to be managers of Howard Institute, to select a site for a post office or a prison, to restore the manuscript of the Declaration of Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and so on and so forth. Note, Power of Appointment to Public Office under the Federal Constitution, 42 Harv. L. Rev. 426, 430-431 (1929). In his message of April 13, 1822, President Monroe stated the thesis that, ``as a general principle, . . . Congress have no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens.'' 2 J. Richardson, op. cit., n.42, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who are proper persons to fill newly created offices. See the distinction drawn in Myers v. United States, 272 U.S. 52, 128-129 (1926), quoted, op. cit., n.462. And note that in Public Citizen v. U. S. Dept. of Justice, 491 U.S. 440, 482-489 (1989) (concurring), Justice Kennedy suggested the President has sole and unconfined discretion in appointing).

\464\The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S. 361 (1989), numbered among its members three federal judges; the President was to select them ``after considering a list of six judges recommended to the President by the Judicial Conference of the United States.'' Id., 397 (quoting 28 U.S.C. Sec. 991(a)). The Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citing 31 U.S.C. Sec. 703(a)(2)). In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 268-269 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned, but see id., 288 (Justice White dissenting), and in any event it never actually passed on the list devices in Mistretta and Synar. The fault in Airports Authority was not the validity of lists generally, the Court condemning the device there as giving Congress control of the process, in violation of Buckley v. Valeo.

But when Congress contrived actually to participate in the appointment and administrative process and provided for selection of the members of the Federal Election Commission, two by the President, two by the Senate, and two by the House, with confirmation of all six members vested in both the House and the Senate, the Court unanimously held the scheme to violate the appointments clause and the principles of separation of powers. The term ``officers of the United States'' is a substantive one requiring that any appointee exercising significant authority pursuant to the laws of the United States be appointed in the manner prescribed by the appointments clause.\465\ The Court did hold, however, that the Commission so appointed and confirmed could be delegated the powers Congress itself could exercise, that is, those investigative and informative functions that congressional committees carry out were properly vested in this body.

NOTE:

Congress is authorized by the appointments clause to vest the appointment of ``inferior Officers,'' at its discretion, ``in the President alone, in the Courts of Law, or in the Heads of Departments.'' Principal questions arising under this portion of the clause are ``Who are `inferior officers,''' and ``what are the ``Departments'' whose heads may be given appointing power?\466\ ``[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by Sec. 2, cl. 2, of [Article II].''\467\ ``The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.''\468\

NOTES:

\467\Freytag v. CIR, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).

\468\United States v. Germaine, 99 U.S. 508, 509-510 (1879) (quoted in Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an ``inferior'' officer is wondrously imprecise. See Freytag v. CIR, 501 U.S. 868, 880-882 (1991); Morrison v. Olson, 487 U.S. 654, 670-673 (1988). And see United States v. Eaton, 169 U.S. 331 (1898). There is another category, of course, employees, but these are lesser functionaries subordinate to officers of the United States. Ordinarily, the term ``employee'' denotes one who stands in a contractual relationship to her employer, but here it signifies all subordinate officials of the Federal Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352- 353 (1931); Burnap v. United States, 252 U.S. 512, 516-517 (1920); Germaine, supra, 511-512.

Thus, officers who are not ``inferior Officers'' must be appointed by the President with the advice and consent of the Senate in order to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President with Senate approval, i.e., principal officers.\469\ Further, the Framers intended to limit the ``diffusion'' of the appointing power with respect to inferior officers in order to promote accountability. ``The Framers understood . . . that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. . . . The Appointments Clause prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers' conclusion that widely distributed appointment power subverts democratic government. given the inexorable presence of the administrative state, a holding that every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.''\470\

NOTES:

\470\Freytag v. CIR, 501 U.S. 868, 884-885 (1991).

Yet, even agreed on the principle, the Freytag Court split 5-to- 4 on the reason for the permissibility of the Chief Judge of the Tax Court to appoint special trial judges. The entire Court agreed that the Tax Court had to be either a ``department'' or a ``court of law'' in order for the authority to be exercised by the Chief Judge, and it unanimously agreed that the statutory provision was constitutional. But, there, agreement ended. The majority was of the opinion that the Tax Court could not be a department, but it was unclear what those Justices thought a department comprehended. Seemingly, it started from the premise that departments were those parts of the executive establishment called departments and headed by a cabinet officer.\471\ Yet, the Court continued immediately to say: ``Confining the term ``Heads of Departments'' in the Appointments Clause to executive divisions like the Cabinet-level departments constrains the distribution of the appointment power just as the [IRS] Commissioner's interpretation, in contrast, would diffuse it. The Cabinet-level departments are limited in number and easily identified. The heads are subject to the exercise of political oversight and share the President's accountability to the people.''\472\ The use of the word ``like'' in this passage suggests that it is not just Cabinet-headed departments that are departments but as well entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads of some named entities, as well as its observation that the term ``Heads of Departments'' does not embrace ``inferior commissioners and bureau officers'' all contribute to an amorphous conception of the term.\473\ In the end, the Court sustained the challenged provision by holding that the Tax Court as an Article I court was a ``Court of Law'' within the meaning of the appointments clause.\474\ The other four Justices concluded that the Tax Court, as an independent establishment in the executive branch, was a ``department'' for purposes of the appointments clause. In their view, in the context of text and practice, the term meant, not Cabinet-level departments, but ``all independent executive establishments,'' so that ```Heads of Departments' includes the heads of all agencies immediately below the President in the organizational structure of the Executive Branch.''\475\

NOTES:

\472\Id., 886(emphasis supplied).

\473\Id., 886-888. Compare id., 915-919 (Justice Scalia concurring).

\474\Id., 888-892. This holding was vigorously controverted by the other four Justices. Id., 901-914(Justice Scalia concurring).

\475\Id., 918, 919 (Justice Scalia concurring).

The Freytag decision must be considered a tentative rather than a settled construction. The close division of the Court means that new appointments, some of which have already occurred, could change the construction. Further guidance must be awaited.

As noted, the appointments clause also authorizes Congress to vest the power in ``Courts of Law.'' Must the power to appoint when lodged in courts be limited to those officers acting in the judicial branch, as the Court first suggested?\476\ But in Ex parte Siebold,\477\ the Court sustained Congress' decision to vest the appointment of federal election supervisors, charged with preventing fraud and rights violations in congressional elections in the South, in courts and disavowed any thought that interbranch appointments could not be authorized under the clause. A special judicial division was authorized to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive, and the Court, in near unanimity, sustained the law, denying that interbranch appointments, in and of themselves, and leaving aside more precise separation-of-powers claims, were improper under the clause.\478\

NOTES:

\477\100 U.S. 371 (1880).

\478\Morrison v. Olson, 487 U.S. 654, 673-677 (1988). See also Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. CIR, 501 U.S. 868, 888-892 (1991) (appointment of special judges by Chief Judge of Tax Court).

Congressional Regulation of Conduct in Office. -- Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, especially regarding their political activities. By an act passed in 1876, it prohibited ``all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes.''\479\ The validity of this measure having been sustained,\480\ the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.\481\ The Lloyd-La Follette Act in 1912 began the process of protecting civil servants from unwarranted or abusive removal by codifying ``just cause'' standards previously embodied in presidential orders, defining ``just causes'' as those that would promote the ``efficiency of the service.''\482\ Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the Civil Service Commission, and divided its responsibilities, its management and administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board.\483\

NOTES:

\480\Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite's opinion extensively reviews early congressional legislation regulative of conduct in office. Id., 372-373.

\481\22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments that created the civil service as a professional cadre of bureaucrats insulated from politics, see Developments in the Law - Public Employment, 97 Harv. L. Rev. 1611, 1619-1676 (1984).

\482\Act of Aug. 24, 1912, Sec. 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C. Sec. 7513. The protection was circumscribed by the limited enforcement mechanisms under the Civil Service Commission, which were gradually strengthened. See id., n.481, 97 Harv. L. Rev., 1630-1631.

\483\92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see id., n.481, 97 Harv. L. Rev., 1632-1650.

By the Hatch Act,\484\ all persons in the executive branch of the Government, or any department or agency thereof, except the President and Vice President and certain ``policy determining'' officers, were forbidden to ``take an active part in political management or political campaigns,'' although they were still permitted to ``express their opinions on all political subjects and candidates.'' In United Public Workers v. Mitchell,\485\ these provisions were upheld as ``reasonable'' against objections based on the First, Fifth, Ninth, and Tenth Amendments.

NOTES:

\485\330 U.S. 75 (1947). See also CSC. v. National Assn. of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based on the Court's expanding jurisprudence of First Amendment speech, but the Act was again sustained. A ``little Hatch Act'' of a State, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).

The Loyalty Issue. -- By Sec. 9A of the Hatch Act of 1939, federal employees were disqualified from accepting or holding any position in the Government or the District of Columbia, if they belonged to an organization that he knew advocated, the overthrow of our constitutional form of government.\486\ The 79th Congress followed up this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any person who advocated, or belonged to an organization which advocated, the overthrow of the Government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the Government.\487\ These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or strikes as a device for dealing with the Government as an employer.\488\ Along with the loyalty-security programs initiated by President Truman\489\ and carried forward by President Eisenhower,\490\ these measures reflected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and abroad.\491\

NOTES:

\487\See Report of the Special Committee on The Federal Loyalty- Security Program, The Association of the Bar of the City of New York (New York: 1956), 60.

\488\5 U.S.C. Sec. 3333. The loyalty disclaimer oath was declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 (D.C.D.C. 1969), and the Government elected not to appeal. The strike disclaimer oath was voided in National Association of Letter Carriers v. Blount, 305 F. Supp, 546 (D.C.D.C. 1969); after noting probable jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the Government's motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has been sustained. United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.C.D.C. 1971), affd. per curiam, 404 U.S. 802 (1971).

\489\E.O. 9835, 12 Fed. Reg. 1935 (1947).

\490\E.O. 10450, 18 Fed. Reg. 2489 (1953).

\491\See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956).

Financial Disclosure and Limitations. -- By the Ethics in Government Act of 1978,\492\ Congress required high-level federal personnel to make detailed, annual disclosures of their personal financial affairs.\493\ The aims of the legislation are to enhance public confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conflicts and interests, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal of government employees' performance in light of their personal financial interests.\494\ Despite the assertions of some that employee privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, absent even a Supreme Court review.\495\ One provision, however, has generated much opposition and invalidation, so far, in the courts. Under Sec. 501(b) of the Ethics in Government Act,\496\ there is imposed a ban on Members of Congress or any officer or employee of the Government, regardless of salary level, taking any ``honorarium,'' which is defined as ``a payment of money or anything of value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual's official duties or the payment is made because of the individual's status with the Government) . . . .''\497\ The statute, even interpreted in accordance with the standards applicable to speech restrictions on government employees, has been held to be overbroad and not sufficiently tailored to serve the governmental interest to be promoted by it.\498\ Only a Supreme Court review, of course, will finally resolve the matter.

NOTES:

\493\See op. cit., n.481, 97 Harv. L. Rev., 1660-1669.

\494\Id., 1661 (citing S. Rept. 170, 95th Cong., 2d sess. (1978), 21-22).

\495\Id., 1664-1669. The Ethics Act also expanded restrictions on postemployment by imposing bans on employment, varying from a brief period to an out-and-out lifetime ban in certain cases. Id., 1669-1676. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716-1724, amending 18 U.S.C. Sec. 207.

\496\92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C.App. Sec. Sec. 501-505.

\497\5 U.S.C.App. Sec. 505(3).

\498\NTEU v. United States, 990 F.2d 1271 (D.C.Cir.), pet. for reh. en banc den., 3 F.3d 1555 (D.C.Cir. 1993).

Legislation Increasing Duties of an Officer. -- Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby ``rendering it necessary that the incumbent should be again nominated and appointed.'' Such legislation does not constitute an attempt by Congress to seize the appointing power.\499\

NOTE:

Nomination. -- The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the ``nomination'' of the candidate by the President alone; the second is the assent of the Senate to the candidate's ``appointment;'' and the third is the final appointment and commissioning of the appointee, by the President.\500\

NOTE:

Senate Approval. -- The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: ``The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualifications or alteration.''\501\ This view is borne out by early opinion,\502\ as well as by the record of practice under the Constitution.

NOTES:

\502\3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1525-1526; 5 Works of Thomas Jefferson, P. Ford ed., (New York: 1904), 161-162; 9 Writings of James Madison, G. Hunt ed. (New York: 1910), 111-113.

When Senate Consent Is Complete. -- Early in January, 1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long- standing rule permitting a motion to reconsider a resolution confirming a nomination within ``the next two days of actual executive session of the Senate'' and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: ``I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.'' The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith,\503\ the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939, the late President Roosevelt rejected a similar demand by the Senate, an action that was unchallenged.\504\

NOTES:

\504\E. Corwin, op. cit., n.44, 77.

Article II, Section 3. The President ... shall Commission all the Officers of the United States.

Commissioning the Officer. -- This, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. The sealing and delivery of the commission is, on the other hand, by the doctrine of Marbury v. Madison, in the case both of appointee by the President and Senate and by the President alone, a purely ministerial act which has been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed.\505\ By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus poenitentiae and may withhold it; nor is the appointee in office till he has this commission.\506\ This is probably the correct doctrine.\507\

NOTES:

\506\12 Ops. Atty. Gen. 306 (1867).

\507\It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee.

Article II, Section 2, Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Setting out from the proposition that the very nature of the executive power requires that it shall always be ``in capacity for action,'' Attorneys General early came to interpret ``happen'' to mean ``happen to exist,'' and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described.\508\ But a Senate ``recess'' does not include holidays, or very brief temporary adjournments,\509\ while by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed by the Senate.\510\

NOTES:

\509\23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 (1898). How long a ``recess'' must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A ``recess,'' however, may be merely ``constructive,'' as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, op. cit., n.294, 1508-1509.

\510\5 U.S.C. Sec. 5503. The provision has been on the books, in somewhat stricter form, since 12 Stat. 646 (1863).

Judicial Appointments. -- Federal judges clearly fall within the terms of the recess-appointments clause. But, unlike with other offices, a problem exists. Article III judges are appointed ``during good behavior,'' subject only to removal through impeachment. A judge, however, who is given a recess appointment may be ``removed'' by the Senate's failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court.\511\

NOTE:

Ad Interim Designations. -- To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision, both theory and practice concede the President the power to make the designation.\512\

NOTE:

The Myers Case. -- Save for the provision which it makes for a power of impeachment of ``civil officers of the United States,'' the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States,\513\ on October 25, 1926, the Supreme Court had contrived to side-step every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first-class postmaster, in the face of the following provision of an act of Congress passed in 1876: ``Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.''\514\

NOTES:

\514\19 Stat. 78, 80.

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice's main reliance was on the so-called ``decision of 1789,'' the reference being to Congress' course that year in inserting in the act establishing the Department of State a proviso which was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President's duty to ``take care that the laws be faithfully executed.'' Succeeding passages of the Chief Justice's opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: ``That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.''\515\

NOTE:

The holding in the Myers case boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice's part to set history aright--or awry.\516\ Rather, it was the concern that he voiced in the following passage in his opinion: ``There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.''\517\ Thus spoke the former President Taft, and the result of his prepossession was a rule which, as was immediately pointed out, exposed the so-called ``independent agencies,'' the Interstate Commerce Commission, the Federal Trade Commission, and the like, to presidential domination.Unfortunately, the Chief Justice, while professing to follow Madison's leadership, had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of Comptroller of the Treasury. ``The Committee,'' said Madison, ``has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.''\518\ In Humphrey's Executor v. United States,\519\ the Court seized upon ``the nature of the office'' concept and applied it as a corrective to the overbroad Myers holding.

NOTES:

\517\Id., 272 U.S., 134. Note the parallelism of the arguments from separation-of-powers and the President's ability to enforce the laws in the decision rendered on Congress' effort to obtain a role in the actual appointment of executive officers in Buckley v. Valeo, 424 U.S. 1, 109-143 (1976), and in many of the subsequent separation-of- powers decisions.

\518\Annals of Congress 611-612 (1789).

\519\295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United States, Humphrey having, like Myers before him, died in the course of his suit for salary. Proponents of strong presidential powers long argued that Humphrey's Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), both cases argued and decided contemporaneously, reflected the anti-New Deal views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 Yearbook of the Supreme Court Historical Society 103, 106-110. Now-Justice Scalia continues to adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 707-711, 723-727 (1988) (dissenting).

The Humphrey Case. -- The material element of this case was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was ``removed'' from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: ``A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

``The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will. . . .

``The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.''\520\

NOTE:

The Wiener Case. -- Curtailment of the President's power of removal, so liberally delineated in the Myers decision, was not to end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States.\521\ Emphasizing therein that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the life of that agency.

NOTE:

The Watergate Controversy. -- A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government,\522\ and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.\523\ Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor ``will not be removed from his duties except for extraordinary improprieties on his part.''\524\ On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor\525\ and three days later rescinded the regulation establishing the office.\526\ In subsequent litigation, it was held, by a federal district court, that the firing by the Acting Attorney General had violated the regulations, which were in force at the time and which had to be followed until they were rescinded.\527\ The Supreme Court in United States v. Nixon\528\ seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President's possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President.\529\ When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

NOTES:

\523\28 U.S.C. Sec. Sec. 509, 510, 515, 533.

\524\38 Fed. Reg. 14688 (1973). The Special Prosecutor's status and duties were the subject of negotiation between the Administration and the Senate Judiciary Committee. Nomination of Elliot L. Richardson to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973), 143 passim.

\525\The formal documents effectuating the result are set out in 9 Wkly. Comp. of Pres. Docs. 1271-1272 (1973).

\526\38 Fed. Reg. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973).

\527\Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).

\528\418 U.S. 683, 692-697 (1974).

\529\The first question remained unstated, but the second issue was extensively debated in Special Prosecutor, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st sess. (1973).

The Removal Power Rationalized. -- The tension that had long been noticed between Myers and Humphrey's Executor, at least in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of persons appointed under the appointments clause.\530\ Myers actually struck down only a law involving the Senate in the removal of postmasters, but the broad- ranging opinion had long stood for the proposition that inherent in the President's obligation to see to the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey's Executor had qualified this proposition by upholding ``for cause'' removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised ``quasi- '' legislative and adjudicative functions as well as some form of executive function. Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as a core executive function in recent cases had cast considerable doubt on the continuing validity of Humphrey's Executor.

NOTE:

NOTES:

\532\The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.

\533\Id., 478 U.S., 729, 730. ``By placing the responsibility for execution of the . . . Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.'' Id., at 734. Because the Act contained contingency procedures for implementing the budget reductions in the event that the primary mechanism was invalidated, the Court rejected the suggestion that it should invalidate the 1921 removal provision rather than the Deficit Act's conferral of executive power in the Comptroller General. To do so would frustrate congressional intention and significantly alter the Comptroller General's office. Id., 734-36.

Relying expressly upon Myers, the Court concluded that ``Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.''\534\ But Humphrey's Executor was also cited with approval, and to the contention that invalidation of this law would cast doubt on the status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of ``for cause'' removal by the President rather than congressional involvement as in the instance of the Comptroller General.\535\ This reconciliation of Myers and Humphrey's Executor was made clear and express in Morrison v. Olson.\536\

NOTES:

\535\Id., 725 n. 4.

\536\487 U.S. 654 (1988).

That case sustained the independent counsel statute.\537\ Under that law, the independent counsel, appointed by a special court upon application by the Attorney General, may be removed by the Attorney General ``only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.'' Inasmuch as the counsel was clearly exercising ``purely'' executive duties, in the sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. But, said the Court, Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that the President must be able to remove at will officers performing ``purely'' executive functions had not survived Humphrey's Executor. It was true, the Court admitted, that, in the latter case, it had distinguished between ``purely'' executive officers and officers who exercise ``quasi-legislative'' and ``quasi- judicial'' powers in marking the line between officials who may be presidentially removed at will and officials who can be protected through some form of good cause removal limits. ``[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a `good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as `purely executive.' The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed' under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some `purely executive' officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wiener as `quasi-legislative' or `quasi-judicial' in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.''\538\

NOTES:

\538\Id., 487 U.S., 685-93.

The Court discerned no compelling reason to find the good cause limit to interfere with the President's performance of his duties. The independent counsel did exercise executive, law-enforcement functions, but the jurisdiction and tenure of each counsel were limited in scope and policymaking or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to ensure the ``faithful execution'' of the laws by assuring that the counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself in the removal of officials performing executive functions. It is also established that, in creating offices in the executive branch and in creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices which may be essential to the President's performance of his constitutionally assigned powers and duties, so that limits on removal would be impermissible. There are no bright lines marking off one office from the other, but decision requires close analysis.\539\

NOTE:

As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled,\540\ although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.

NOTE:

Other Phases of Presidential Removal Power. -- Congress may ``limit and restrict the power of removal as it deems best for the public interest'' in the case of inferior officers.\541\ However, in the absence of specific legislative provision to the contrary, the President may remove at his discretion an inferior officer whose term is limited by statute,\542\ or one appointed with the consent of the Senate.\543\ He may remove an officer of the army or navy at any time by nominating to the Senate the officer's successor, provided the Senate approves the nomination.\544\ In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors.\545\ Although no such cause of removal by the President was stated in the act creating TVA, the President's action, being reasonably required to promote the smooth functioning of TVA, was within his duty to ``take care that the laws be faithfully executed.'' So interpreted, it did not violate the principle of administrative independence.

NOTES:

\542\Parsons v. United States, 167 U.S. 324 (1897).

\543\Shurtleff v. United States, 189 U.S. 311 (1903).

\544\Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States, 177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922).

\545\Morgan v. TVA, 28 F. Supp. 732 (D.E.D. Tenn. 1939), affd., 115 F. 2d 990 (6th Cir. 1940), cert. den. 312 U.S. 701 (1941).

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them\546\ or pressing litigation in their behalf,\547\ refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage,\548\ challenging the constitutional validity of legislation which he deemed detrimental to their interests.\549\ One of the principal efforts throughout our history has been his efforts to spread his own official immunity to them, by resisting actions of the courts or of congressional committees to require divulgence of confidential communications from or to the President, that is, communications that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself and the locus of the dispute shifted to the courts.

NOTES:

\547\United States v. Lovett, 328 U.S. 303 (1946).

\548\E.g., 2 J. Richardson, op. cit., n.42, 847.

\549\United States v. Lovett, 328 U.S. 303, 313 (1946).

Following years in which claims of executive privilege were resolved one way or another on the basis of the political strengths of the parties, in primarily interbranch disputes, the issue was finally the subject of the first judicial elaboration of the doctrine to take place in our history; the doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over-balance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager yet that it is not possible so to state, however.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions.\550\ The current and ongoing litigation involved, of course, the claim of confidentiality of conversations between the President and his aides.

NOTE:

Private Access to Government Information. -- Private parties may seek to obtain information from the Government either to assist in defense to criminal charges brought by the Government or in civil cases to use in either a plaintiff's or defendant's capacity in suits with the Government or between private parties.\551\ In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution.\552\ Generally speaking, when the prosecution is confronted with a judicial order to turn over information to a defendant that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure,\553\ but that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized.\554\

NOTES:

\552\See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. The earliest judicial dispute involving what later became known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance.

\553\E.g., Alderman v. United States, 394 U.S. 165 (1968).

\554\Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.C.D.C. 1974), was held entitled to access to material in the custody of the President wherein the President's decision to dismiss the prosecution would probably have been unavailing.

The civil type of case is illustrated in United States v. Reynolds,\555\ a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment. Plaintiffs sought discovery of the Air Force's investigation report on the accident, and the Government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government's claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The showing of necessity of the private litigant for the information should govern in each case how far the trial court should probe; where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim but once satisfied of the appropriateness no matter how compelling the need the privilege prevails.\556\

NOTES:

\556\Id., 7-8, 9-10, 11. Withholding of information relating to governmental employees' clearances, disciplines, or discharges often raise claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); U. S.Dept. of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved and implemented a governmental secrecy agreement with some of its employees, Snepp v. United States, 444 U.S. 507 (1980), the Government expanded its secrecy program with respect to classified and ``classifiable'' information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive of the President constitutional power to manage the executive. National Federation of Federal Employees v. United States, 688 F.Supp. 671 (D.D.C.), vacated and remanded sub nom., American Foreign Service Assn. v. Garfinkel, 490 U.S. 153 (1989). For similar assertions in the context of plaintiffs suing the Government for interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the Government under the state- secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C.Cir. 1978); Id., 690 F.2d 977 (D.C.Cir. 1982); Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir. 1983). For review and analysis, see Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 875-880 (1984). And see Totten v. United States, 92 U.S. 105 (1875).

Prosecutorial and Grand Jury Access to Presidential Documents. -- Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations and other documents relating to the commission of criminal actions.\557\ While holding that the subpoenas were valid and should be obeyed, the Supreme Court recognized the constitutional status of executive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

NOTE:

Presidential communications, the Court said, have ``a presumptive privilege.'' ``The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.'' The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. ``A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.'' The separation-of-powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.\558\

NOTE:

However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, ``to say what the law is.'' The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, while the President's claim of privilege is entitled to deference, the courts must when the claim depends solely on a broad, undifferentiated claim of confidentiality balance two sets of interests.

``In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

``On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . .

``We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.''\559\

NOTE:

Obviously, this decision leaves much unresolved. It does recognize the constitutional status of executive privilege as a doctrine. It does affirm the power of the courts to resolve disputes over claims of the privilege. But it leaves unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It does not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases; nor does it touch upon denial of information to Congress.

Neither does the Court's decision in Nixon v. Administrator of General Services\560\ elucidate any of these or other questions that may be raised to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the Government to take custody of former President Nixon's records to be screened, catalogued, and processed by professional archivists, in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals and not at all to be related to the possible public disclosure of some of the records. The decision does go beyond the first decision's recognition of the overbalancing force of the necessity for disclosure in criminal trials to find ``comparable'' ``adequate justifications'' for congressional enactment of the law, including the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President's wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President's resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. While interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act's passage as to leave the case of little value as precedent.

NOTE:

Congressional Access to Executive Branch Information. -- Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied.\561\ The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, preservation of investigative records. Counterpoised against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.

NOTE:

Until quite recently, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts with respect to the President's obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives.\562\ The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas.\563\ Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the bills did not purport to define executive privilege, although some indicate a standard by which the federal court is to determine whether the material sought is lawfully being withheld from Congress.\564\ The controversy gives little indication at the present time of abating, and it may be assumed that whenever the Executive and Congress are controlled by different political parties there will be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.

NOTES:

\563\President Nixon's position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rept. No. 93-1305, 93d Cong., 2d sess. (1974).

\564\For consideration of various proposals by which Congress might proceed, see Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. Legis. 145 (1984); Brand & Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 Cath. U. L. Rev. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 Duke L. J. 1333.

Article II, Section 3. He [The President] shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and ...

This clause, which imposes a duty rather than confers a power, is the formal basis of the President's legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress.\565\ It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of ``usurping'' legislative powers,\566\ but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.\567\ Today, there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.\568\ The President has frequently summoned both Houses into ``extra'' or ``special sessions'' for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

NOTES:

\566\The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this general effect. See 4 J. Richardson, op. cit., n.42, 1860, 1864; 6 id., 2513-2519, 2561-2562, 2608, 2615.

\567\See sources cited supra, n.565.

\568\Warren, Presidential Declarations of Independence, 10 B.U.L. Rev. 1 (1930); 3 W. Willoughby, op. cit., n.294, 1488-1492.

NOTES:

\570\5 J. Moore, International Law Digest (Washington: 1906), 15-19.

\571\Id., 4:473-548; 5:19-32.

Wrote Jefferson in 1790: ``The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.''\572\ So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that ``as the President was the only channel of communication between the United States and foreign nations, it was from him alone `that foreign nations or their agents are to learn what is or has been the will of the nation'; that whatever he communicated as such, they had a right and were bound to consider `as the expression of the nation'; and that no foreign agent could be `allowed to question it,' or `to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. `I inform you of the fact,' he said, `by authority from the President.' Mr. Jefferson returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.''\573\

NOTES:

\573\4 J. Moore, International Law Digest (Washington: 1906), 680-681.

The Logan Act. -- When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States, his enterprise stimulated Congress to pass ``An Act to Prevent Usurpation of Executive Functions,''\574\ which, ``more honored in the breach than the observance,'' still survives on the statute books.\575\ The year following John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: ``The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.''\576\ Ninety-nine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration.\577\

NOTES:

\575\See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess. (1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the ``Logan Act'' are given in E. Corwin, op. cit., n.44, 183-184, 430- 431.

\576\10 Annals of Congress 596, 613-614 (1800). Marshall's statement is often cited, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 319 (1936), as if he were claiming sole or inherent executive power in foreign relations, but Marshall carefully propounded the view that Congress could provide the rules underlying the President's duty to extradite. When, in 1848, Congress did enact such a statute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).

\577\S. Doc. No. 56, 54th Congress, 2d Sess. (1897).

A Formal or a Formative Power. -- In his attack, instigated by Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power ``to declare war,'' and in support of this proposition he disparaged the presidential function of reception, in the following words: ``I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.''\578\

NOTE:

The President's Diplomatic Role. -- Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,\579\ adopted a very different conception of it in defense of Washington's proclamation. Writing under the pseudonym, ``Pacificus,'' he said: ``The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become as an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates.''\580\

NOTES:

\580\Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton, J. Hamilton ed. (New York: 1851), 76, 82-83.

Jefferson's Real Position. -- Nor did Jefferson himself officially support Madison's point of view, as the following extract from his ``minutes of a Conversation,'' which took place July 10, 1793, between himself and Citizen Genet, show: ``He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. `But,' said he, `at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. `If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea.''\581\

NOTE:

In his endeavor in 1793 to minimize the importance of the President's power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting State had the right along with the possession. He said: ``This belongs to the nation, and to the nation alone, on whom the government operates. . . . It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors.''\582\

NOTE:

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize new states, communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John Bassett Moore in his famous Digest, as follows: ``In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Haiti, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases, the recognition was given by the Executive solely on his own responsibility.''\583\

NOTE:

The Case of Cuba. -- The question of Congress' right also to recognize new states was prominently raised in connection with Cuba's final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character, urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the whole subject and came to the following conclusions as to this power: ``The `recognition' of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the President alone. The next step, that of sending a public minister to the nation thus recognized, is primarily the act of the President. The Senate can take no part in it at all, until the President has sent in a nomination. Then it acts in its executive capacity, and, customarily, in `executive session.' The legislative branch of the Government can exercise no influence over this step except, very indirectly, by withholding appropriations. . . . Nor can the legislative branch of the Government hold any communications with foreign nations. The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties.

``Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our interpretation of the Constitution is correct. That it is correct . . . [is] shown by the opinions of jurists and statesmen of the past.''\584\ Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain. For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end, and the President himself had appealed to Congress to provide a solution for the Cuban situation. In response, Congress was about to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was about to declare.\585\ The recognition of the Union of Soviet Socialist Republics in 1933 was an exclusively presidential act.

NOTES:

\585\Said Senator Nelson of Minnesota: ``The President has asked us to give him the right to make war to expel the Spaniards from Cuba. He has asked us to put that power in his hands; and when we are asked to grant that power--the highest power given under the Constitution--we have the right, the intrinsic right, vested in us by the Constitution, to say how and under what conditions and with what allies that war- making power shall be exercised.'' 31 Cong. Rec. 3984 (1898).

The Power of Nonrecognition. -- The potentialities of nonrecognition were conspicuously illustrated by President Woodrow Wilson when he refused, early in 1913, to recognize Provisional President Huerta as the de facto government of Mexico, thereby contributing materially to Huerta's downfall the year following. At the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, and his successors prior to President Franklin D. Roosevelt did the same. The refusal of the Hoover administration to recognize the independence of the Japanese puppet state of Manchukuo early in 1932 was based on kindred grounds. Similarly, the nonrecognition of the Chinese Communist Government from the Truman Administration to President Nixon's de facto recognition through a visit in 1972--not long after the People's Republic of China was admitted to the United Nations and the exclusion of Taiwan--proved to be an important part of American foreign policy during the Cold War.\586\

NOTE:

No President was ever more jealous of his prerogative in the realm of foreign relations than President Woodrow Wilson. When, however, strong pressure was brought to bear upon him by Great Britain respecting his Mexican Policy, he was constrained to go before Congress and ask for a modification of the Panama Tolls Act of 1911, which had also aroused British ire. Addressing Congress, he said, ``I ask this of you in support of the foreign policy of the Administration. I shall not know how to deal with other matters of even greater delicacy and nearer consequence if you do not grant it to me in ungrudging measure.''\587\

NOTE:

The fact is, of course, that Congress has enormous powers, the support of which is indispensable to any foreign policy. In the long run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although it does not direct them, that pledges the public credit, that declares war, that defines offenses against the law of nations, that regulates foreign commerce; and it has the further power ``to make all laws which shall be necessary and proper''--that is, which it deems to be such--for carrying into execution not only its own powers but all the powers ``of the government of the United States and of any department or officer thereof.'' Moreover, its laws made ``in pursuance'' of these powers are ``supreme law of the land,'' and the President is bound constitutionally to ``take care that'' they ``be faithfully executed.'' In point of fact, congressional legislation has operated to augment presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March 11, 1941\588\ is the classic example, although it only brought to culmination a whole series of enactments with which Congress had aided and abetted the administration's foreign policy in the years between 1934 and 1941.\589\ Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the President to use troops abroad in the absence of a declaration of war, but also limiting his economic and political powers through curbs on his authority to declare national emergencies.\590\ The lesson of history, however, appears to be that congressional efforts to regain what is deemed to have been lost to the President is intermittent, whereas the presidential exercise of power in today's world is unremitting.\591\

NOTES:

\589\E. Corwin, op. cit., n.44, 184-193, 423-425, 435-436.

\590\Legislation includes the War Powers Resolution, P.L. 93- 148, 87 Stat. 555 (1953), 50 U.S.C. Sec. Sec. 1541-1548; the National Emergencies Act, P.L. 94-412, 90 Stat. 1255 (1976), 50 U.S.C. Sec. Sec. 1601-1651 (establishing procedures for presidential declaration and continuation of national emergencies and providing for a bicameral congressional veto); the International Emergency Economic Powers Act, P.L. 95-223, 91 Stat. 1626 (1977), 50 U.S.C. Sec. Sec. 1701- 1706 (limiting the great economic powers conferred on the President by the Trading with the Enemy Act of 1917, 40 Stat. 415, 50 U.S.C. App. Sec. 5(b), to times of declared war, and providing new and more limited powers, with procedural restraints, for nonwartime emergencies); and see the Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. Sec. 1330, 1602-1611 (removing from executive control decisions concerning the liability of foreign sovereigns to suit).

\591\``We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice Jackson concurring). For an account of how the President usually prevails, see H. Koh, The National Security Constitution: Sharing Power after the Iran-Contra Affairs (New Haven: 1990).

It is not within the province of the courts to inquire into the policy underlying action taken by the ``political departments''-- Congress and the President--in the exercise of their conceded powers. This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, which the Court would normally regard as falling within its jurisdiction. Such questions are termed ``political questions,'' and are especially common in the field of foreign relations. The leading case is Foster v. Neilson,\592\ where the matter in dispute was the validity of a grant made by the Spanish Government in 1804 of land lying to the east of the Mississippi River, and in which there was also raised the question whether the region between the Perdido and Mississippi Rivers belonged in 1804 to Spain or the United States.

NOTE:

Chief Justice Marshall held that the Court was bound by the action of the political departments, the President and Congress, in claiming the land for the United States. He said: ``If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.''\593\ The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins. Co.\594\ In this case, the underwriters of a vessel which had been confiscated by the Argentine Government for catching seals off the Falkland Islands, contrary to that Government's orders, sought to escape liability by showing that the Argentinean Government was the sovereign over these islands and that, accordingly, the vessel had been condemned for willful disregard of legitimate authority. The Court decided against the company on the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. ``[C]an there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view, it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people and government of the Union.

NOTES:

\594\13 Pet. (38 U.S.) 415 (1839).

``If this were not the rule, cases might often arise, in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one on these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character.''\595\ Thus, the right to determine the boundaries of the country is a political function,\596\ as is also the right to determine what country is sovereign of a particular region,\597\ to determine whether a community is entitled under international law to be considered a belligerent or an independent state,\598\ to determine whether the other party has duly ratified a treaty,\599\ to determine who is the de jure or de facto ruler of a country,\600\ to determine whether a particular person is a duly accredited diplomatic agent to the United States,\601\ to determine how long a military occupation shall continue in fulfillment of the terms of a treaty,\602\ to determine whether a treaty is in effect or not, although doubtless an extinguished treaty could be constitutionally renewed by tacit consent.\603\

NOTES:

\596\Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829).

\597\Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415 (1839).

\598\United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818).

\599\Doe v. Braden, 16 How. (57 U.S.) 635, 657 (1853).

\600\Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 246 U.S. 297 (1918).

\601\In re Baiz, 135 U.S. 403 (1890).

\602\Neely v. Henkel, 180 U.S. 109 (1901).

\603\Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 (1913).

Recent Statements of the Doctrine. -- The assumption underlying the refusal of courts to intervene in such cases is well stated in the case of Chicago & S. Airlines v. Waterman S.S. Corp.\604\ Here, the Court refused to review orders of the Civil Aeronautics Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation, which by the then terms of the Civil Aeronautics Act were subject to approval by the President and therefore impliedly beyond those provisions of the act authorizing judicial review of board orders. Elaborating on the necessity of judicial abstinence in the conduct of foreign relations, Justice Jackson declared for the Court: ``The President, both as Commander in Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.''\605\

NOTES:

\605\Id., 111. See also Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ricaud v. American Metal Co., 246 U. S. 304 (1918). Analogous to and arising out of the same considerations as the political question doctrine is the ``act of state'' doctrine under which United States courts will not examine the validity of the public acts of foreign governments done within their own territory, typically, but not always, in disputes arising out of nationalizations. E.g., Underhill v. Hernandez, 168 U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of this amorphous doctrine, see Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 443-444. Congress has limited the reach of the doctrine in foreign expropriation cases by the Hickenlooper Amendments. 22 U.S.C. Sec. 2370(e)(2). Consider, also, Dames & Moore v. Regan, 453 U.S. 654 (1981). Similar, also, is the doctrine of sovereign immunity of foreign states in United States courts, under which jurisdiction over the foreign state, at least after 1952, turned upon the suggestion of the Department of State as to the applicability of the doctrine. See Alfred Dunhill of London v. Republic of Cuba, supra, 698-706 (plurality opinion), but see id., 725- 728 (Justice Marshall dissenting). For the period prior to 1952, see Z. & F. Assets Corp. v. Hull, 311 U.S. 470, 487 (1941). Congress in the Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. Sec. 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d), 1602-1611, provided for judicial determination of applicability of the doctrine but did adopt the executive position with respect to no applicability for commercial actions of a foreign state. E.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). See Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 451-463 (including Introductory Note, pp. 390-396.

To the same effect are the Court's holding and opinion in Ludecke v. Watkins,\606\ where the question at issue was the power of the President to order the deportation under the Alien Enemy Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: ``War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. . . . The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subject for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.''\607\

NOTES:

\607\Id., 167, 170. Four Justices dissented, by Justice Black, who said: ``The Court . . . holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order. . . . I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported.'' Id., 174-175. See also Woods v. Miller Co., 333 U.S. 138 (1948), where the continuation of rent control under the Housing and Rent Act of 1947, enacted after the termination of hostilities, was unanimously held to be a valid exercise of the war power, but the constitutional question raised was asserted to be a proper one for the Court. Said Justice Jackson, in a concurring opinion: ``Particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care.'' Id., 146-147.

The most recent Court review of the political question doctrine is found in Baker v. Carr.\608\ There, Justice Brennan noted and elaborated the factors which go into making a question political and inappropriate for judicial decision.\609\ On the matter at hand, he said: ``There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.''\610\ However, recently, the Court came within one vote of creating a broad application of the political question doctrine in foreign relations disputes, at least in the context of a dispute between Congress and the President with respect to a proper allocation of constitutional powers.\611\ In any event, the present Court, in adjudicating on the merits disputes in which the foreign relations powers are called into question, follows a policy of such deference to executive and congressional expertise that the result may not be dissimilar to a broad application of the political question doctrine.\612\

NOTES:

\609\Id., 217.

\610\Id., 211-212. A case involving ``a purely legal question of statutory interpretation'' is not a political question simply because the issues have significant political and foreign relations overtones. Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229-230 (1986) (Fisherman's Protective Act does not completely remove Secretary of Commerce's discretion in certifying that foreign nationals are ``diminishing the effectiveness of'' an international agreement by taking whales in violation of quotas set pursuant to the agreement).

\611\Goldwater v. Carter, 444 U.S. 996, 1002-1006 (Justices Rehnquist, Stewart, and Stevens and Chief Justice Burger). The doctrine was applied in just such a dispute in Dole v. Carter, 569 F.2d 1109 (10th Cir., 1977).

\612\``Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.'' Haig v. Agee, 453 U.S. 280, 292 (1981). See also Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981); Greer v. Spock, 424 U.S. 828, 837-838 (1976); Parker v. Levy, 417 U.S. 733, 756, 758 (1974); Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952). Neither may private claimants seek judicial review of executive actions denying constitutional rights ``in such sensitive areas as national security and foreign policy'' in suits for damages against offending officials, inasmuch as the President is absolutely immune, Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Court has strongly hinted that in these areas the immunity of presidential aides and other executive officials ``entrusted with discretionary authority'' will be held to be absolute rather than qualified. Harlow v. Fitzgerald, 457 U.S. 800, 812-813 (1982).

The Constitution does not say that the President shall execute the laws, but that ``he shall take care that the laws be faithfully executed,'' i.e., by others, who are commonly, but not always with strict accuracy, termed his subordinates. What powers are implied from this duty? In this connection, five categories of executive power should be distinguished: first, there is that executive power which the Constitution confers directly upon the President by the opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of the powers which acts of Congress at any particular time confer upon the President; thirdly, there is the sum total of discretionary powers which acts of Congress at any particular time confer upon heads of departments and other executive (``administrative'') agencies of the National Government; fourthly, there is the power which stems from the duty to enforce the criminal statutes of the United States; finally, there are so-called ``ministerial duties'' which admit of no discretion as to the occasion or the manner of their discharge. Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon him; second, in what relation does he stand by virtue of the ``take care'' clause to the powers of other executive or administrative agencies; third, in what relation does he stand to the enforcement of the criminal laws of the United States?\613\

NOTE:

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive legal recognition, the President is presumed to exercise certain of his constitutional powers personally. In the words of an opinion by Attorney General Cushing in 1855: ``It may be presumed that he, the man discharging the presidential office, and he alone, grants reprieves and pardons for offenses against the United States. . . . So he, and he alone, is the supreme commander in chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President.''\614\ Moreover, the obligation to act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into ``an Establishment by name of the Smithsonian Institute.''\615\ Here, says the Attorney General, ``the President's name of office is designatio personae.'' He was also of opinion that expenditures from the ``secret service'' fund, in order to be valid, must be vouched for by the President personally.\616\ On like grounds the Supreme Court once held void a decree of a court martial, because, though it has been confirmed by the Secretary of War, it was not specifically stated to have received the sanction of the President as required by the 65th Article of War.\617\ This case has, however, been virtually overruled, and at any rate such cases are exceptional.\618\

NOTES:

\615\9 Stat. 102 (1846), 20 U.S.C. Sec. 41.

\616\Cf. 2 Stat. 78. The provision has long since dropped out of the statute book.

\617\Runkle v. United States, 122 U.S. 543 (1887).

\618\Cf. In re Chapman, 166 U.S. 661, 670-671 (1897), where it was held that presumptions in favor of official action ``preclude collateral attack on the sentences of courts-martial.'' See also United States v. Fletcher, 148 U.S. 84, 88-89 (1893); Bishop v. United States, 197 U.S. 334, 341-342 (1905), both of which in effect repudiate Runkle.

The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department, whose acts, if performed within the law, thus become the President's acts.\619\ Williams v. United States\620\ involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President.\621\ The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform.\622\ As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.\623\

NOTES:

\620\1 How. (42 U.S.) 290 (1843).

\621\3 Stat. 723 (1823), now covered in 31 U.S.C. Sec. 3324.

\622\Id., 1 How. (42 U.S.), 297-298.

\623\38 Ops. Atty. Gen. 457, 458 (1936). And, of course, if the President exercises his duty through subordinates, he must appoint them or appoint the officers who appoint them, Buckley v. Valeo, 424 U. S. 1, 109-143 (1976), and he must have the power to discharge those officers in the Executive Branch, Myers v. United States, 272 U.S. 52 (1926), although the Court has now greatly qualified Myers to permit congressional limits on the removal of some officers. Morrison v. Olson, 487 U.S. 654 (1988).

Impoundment of Appropriated Funds. -- In his Third Annual Message to Congress, President Jefferson established the first faint outline of what has been in recent years a major controversy. Reporting that $50,000 in funds which Congress had appropriated for fifteen gunboats on the Mississippi remained unexpended, the President stated that a ``favorable and peaceful turn of affairs on the Mississippi rendered an immediate execution of the law unnecessary. . . .'' But he was not refusing to expend the money, only delaying action to obtain improved gunboats; a year later, he told Congress that the money was being spent and gunboats were being obtained.\624\ A few other instances of deferrals or refusals to spend occurred in the Nineteenth and early Twentieth Centuries, but it was only with the Administration of President Franklin Roosevelt that a President refused to spend moneys for the purposes appropriated. Succeeding Presidents expanded upon these precedents, and in the Nixon Administration a well-formulated plan of impoundments was executed in order to reduce public spending and to negate programs established by congressional legislation.\625\

NOTES:

\625\History and law is much discussed in Executive Impoundment of Appropriated Funds, Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st sess. (1971); Impoundment of Appropriated Funds by the President, Hearings before the Senate Government Operations Ad Hoc Subcommittee on Impoundment of Funds, 93d Congress, 1st sess. (1973). The most thorough study of the legal and constitutional issues, informed through historical analysis, is Abascal & Kramer, Presidential Impoundment Part I: Historical Genesis and Constitutional Framework, 62 Geo. L. J. 1549 (1974); Abascal & Kramer, Presidential Impoundment Part II: Judicial and Legislative Response, 63 id. 149 (1974). See generally L. Fisher, Presidential Spending Power (Princeton: 1975).

Impoundment\626\ was defended by Administration spokesmen as being a power derived from the President's executive powers and particularly from his obligation to see to the faithful execution of the laws, i.e., his discretion in the manner of execution. The President, the argument went, is responsible for deciding when two conflicting goals of Congress can be harmonized and when one must give way, when, for example, congressional desire to spend certain moneys must yield to congressional wishes to see price and wage stability. In some respects, impoundment was said or implied to flow from certain inherent executive powers that repose in any President. Finally, statutory support was sought; certain laws were said to confer discretion to withhold spending, and it was argued that congressional spending programs are discretionary rather than mandatory.\627\

NOTES:

\627\Impoundment of Appropriated Funds by the President, Hearings before the Senate Government Operations Ad Hoc Subcommittee on Impoundment of Funds, 93d Congress, 1st sess. (1973), 358 (then-Deputy Attorney General Sneed).

On the other hand, it was argued that Congress' powers under Article I, Sec. 8, were fully adequate to support its decision to authorize certain programs, to determine the amount of funds to be spent on them, and to mandate the Executive to execute the laws. Permitting the President to impound appropriated funds allowed him the power of item veto which he does not have and denies Congress the opportunity to override his veto of bills enacted by Congress. In particular, the power of Congress to compel the President to spend appropriated moneys was said to derive from Congress' power ``to make all Laws which shall be necessary and proper for carrying into Execution'' the enumerated powers of Congress and ``all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.''\628\

NOTE:

The President's decision to impound large amounts of appropriated funds led to two approaches to curtail the power. First, many persons and organizations, with a reasonable expectation of receipt of the impounded funds upon their release, brought large numbers of suits; with a few exceptions, these suits resulted in decisions denying the President either constitutional or statutory power to decline to spend or obligate funds, and the Supreme Court, presented with only statutory arguments by the Administration, held that no discretion existed under the particular statute to withhold allotments of funds to the States.\629\ Second, Congress in the course of revising its own manner of appropriating funds in accordance with budgetary responsibility provided for mandatory reporting of impoundments to Congress, for congressional disapproval of impoundments, and for court actions by the Comptroller General to compel spending or obligation of funds.\630\

NOTES:

\630\Congressional Budget and Impoundment Control Act, P.L. 93- 344, title X, Sec. Sec. 1001-1017, 88 Stat. 332 (1974), as amended, 2 U.S.C. Sec. Sec. 681-688.

Generally speaking, the law recognized two types of impoundments: ``routine'' or ``programmatic'' reservations of budget authority to provide for the inevitable contingencies that arise in administering congressionally-funded programs and ``policy'' decisions that are ordinarily intended to advance the broader fiscal or other policy objectives of the executive branch contrary to congressional wishes in appropriating funds in the first place.

Routine reservations were to come under the terms of a revised Anti-Deficiency Act.\631\ Prior to its amendment, this law had permitted the President to ``apportion'' funds ``to provide for contingencies, or to effect savings whenever savings are made possible by or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which such appropriation was made available.'' President Nixon had relied on this ``other developments'' language as authorization to impound, for what in essence were policy reasons.\632\ Congress deleted the controverted clause and retained the other language to authorize reservations to maintain funds for contingencies and to effect savings made possible in carrying out the program; it added a clause permitting reserves ``as specifically provided by law.''\633\

NOTES:

\632\L. Fisher, Presidential Spending Power (Princeton: 1975), 154-157.

\633\31 U.S.C. Sec. 1512(c)(1) (present version). Congressional intent was to prohibit the use of apportionment as an instrument of policymaking. 120 Cong. Rec. 7658 (1974) (Senator Muskie); id., 20472- 20473 (Senators Ervin and McClellan).

``Policy'' impoundments were to be reported to Congress by the President as permanent rescissions and, perhaps, as temporary deferrals.\634\ Rescissions are merely recommendations or proposals of the President and must be authorized by a bill or joint resolution, or, after 45 days from the presidential message, the funds must be made available for obligation.\635\ Temporary deferrals of budget authority for less than a full fiscal year, as provided in the 1974 law, were to be effective unless either the House of Representatives or the Senate passed a resolution of disapproval.\636\ With the decision in INS v. Chadha,\637\ voiding as unconstitutional the one-House legislative veto, it was evident that the veto provision in the deferral section of the Impoundment Control Act was no longer viable. An Administration effort to utilize the section, minus the veto device, was thwarted by court action, in which, applying established severability analysis, the court held that Congress would not have enacted the deferral provision in the absence of power to police its exercise through the veto.\638\ Thus, the entire deferral section was inoperative. Congress, in 1987, enacted a more restricted authority, limited to deferrals only for those purposes set out in the Anti- Deficiency Act.\639\

NOTES:

\635\2 U.S.C. Sec. 683.

\636\Sec. 1013, 88 Stat. 334. Because the Act was a compromise between the House of Representatives and the Senate, numerous questions were left unresolved; one important one was whether the President could use the deferral avenue as a means of effectuating policy impoundments or whether rescission proposals were the sole means. The subsequent events described in the text mooted that argument.

\637\462 U.S. 919 (1983).

\638\City of New Haven v. United States, 809 F.2d 900 (D.C.Cir. 1987).

\639\P. L. 100-119, title II, Sec. 206(a), 101 Stat. 785, 2 U.S.C. Sec. 684.

With passage of the Act, the constitutional issues faded into the background; Presidents regularly reported rescission proposals, and Congress responded by enacted its own rescissions, usually topping the Presidents'. The entire field was, of course, confounded by the application of the other part of the 1974 law, the Budget Act, which restructured how budgets were received and acted on in Congress, and by the Balanced Budget and Emergency Deficit Control Act of 1985.\640\ This latter law was designed as a deficit-reduction forcing mechanism, so that unless President and Congress cooperates each year to reduce the deficit by prescribed amounts, a ``sequestration'' order would reduce funds down to a mandated figure.\641\ Dissatisfaction with the amount of deficit reduction continues to stimulate discussion of other means, such as ``expedited'' rescission and the line-item veto, many of which may raise some constitutional issues.

NOTES:

\641\See Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 Calif. L. Rev. 593 (1988).

Suppose, that the law casts a duty upon a head of department eo nomine, does the President thereupon become entitled by virtue of his duty to ``take care that the laws be faithfully executed,'' to substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789 on the location of the removal power, Madison argued that it ought to be attributed to the President alone because it was ``the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the executive department,'' and this responsibility, he held, carried with it the power to ``inspect and control'' the conduct of subordinate executive officers. ``Vest,'' said he, ``the power [of removal] in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good.''\642\

NOTE:

But this was said with respect to the office of the Secretary of State, and when shortly afterward the question arose as to the power of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress' own powers and should therefore be protected against the removal power.\643\ And in Marbury v. Madison,\644\ Chief Justice Marshall traced a parallel distinction between the duties of the Secretary of State under the original act which had created a ``Department of Foreign Affairs'' and those which had been added by the later act changing the designation of the department to its present one. The former were, he pointed out, entirely in the ``political field,'' and hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. For these, therefore, the Secretary was ``an officer of the law'' and ``amenable to the law for his conduct.''\645\

NOTES:

\644\1 Cr. (5 U.S.) 137 (1803).

\645\Id., 165-166.

Administrative Decentralization Versus Jacksonian Centralism. -- An opinion rendered by Attorney General Wirt in 1823 asserted the proposition that the President's duty under the ``take care'' clause required of him scarcely more than that he should bring a criminally negligent official to book for his derelictions, either by removing him or by setting in motion against him the processes of impeachment or of criminal prosecutions.\646\ The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved in any effort to enforce it. The diametrically opposed theory that Congress is unable to vest any head of an executive department, even within the field of Congress' specifically delegated powers, with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson's Protest Message of April 15, 1834,\647\ defending his removal of Duane as Secretary of the Treasury, because of the latter's refusal to remove the deposits from the Bank of the United States. Here it is asserted ``that the entire executive power is vested in the President;'' that the power to remove those officers who are to aid him in the execution of the laws is an incident of that power; that the Secretary of the Treasury was such an officer; that the custody of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates; that in the performance of these duties the Secretary was subject to the supervision and control of the President; and finally that the act establishing the Bank of the United States ``did not, as it could not change the relation between the President and Secretary--did not release the former from his obligation to see the law faithfully executed nor the latter from the President's supervision and control.''\648\ In short, the President's removal power, in this case unqualified, was the sanction provided by the Constitution for his power and duty to control his ``subordinates'' in all their official actions of public consequence.

NOTES:

\647\3 J. Richardson, op. cit., n.42, 1288.

\648\Id., 1304.

Congressional Power Versus Presidential Duty to the Law. -- Four years late the case of Kendall v. United States ex rel. Stokes,\649\ was decided. The United States owed one Stokes money, and when Postmaster General Kendall, at Jackson's instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall, like Marbury v. Madison, involved the question of the responsibility of a head of a department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court's own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower court had asserted that the duty of the President under the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and Story having to do with the President's power in the field of foreign relations.

NOTE:

The Court rejected the implication with emphasis. There are, it pointed out, ``certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the President. But it would be an alarming doctrine, that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.''\650\ In short, the Court recognized the underlying question of the case to be whether the President's duty to ``take care that the laws be faithfully executed'' made it constitutionally impossible for Congress ever to entrust the construction of its statutes to anybody but the President, and it answered this in the negative.

NOTE:

Myers Versus Morrison. -- How does this issue stand today? The answer to this question, so far as there is one, is to be sought in a comparison of the Court's decision in the Myers case, on the one hand, and its decision in the Morrison case, on the other.\651\ The first decision is still valid to support the President's right to remove, and hence to control the decisions of, all officials through whom he exercises the great political powers which he derives from the Constitution and also of many but not all officials--usually heads of departments--through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of the President, and those acting for him, by imposition of a ``good cause'' standard, subject to a balancing test. That is, the Court now regards the critical issue not as what officials do, whether they perform ``purely executive'' functions or ``quasi'' legislative or judicial functions, though the duties and functions must be considered. Rather, the Courts must ``ensure that Congress does not interfere with the President's exercise of the `executive power'' and his constitutionally appointed duty to `take care that the laws be faithfully executed' under Article II.''\652\ Thus, the Court continued, Myers was correct in its holding and in its suggestion that there are some executive officials who must be removable by the President if he is to perform his duties.\653\ On the other hand, Congress may believe that it is necessary to protect the tenure of some officials, and if it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not of such a nature as to impede the President's ability to perform his constitutional duties.\654\ The officer in Morrison, the independent counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her tenure and no showing that the restriction ``unduly trammels'' presidential powers.\655\

NOTES:

\652\Id., 689-690.

\653\Id., 690-691.

\654\Id., 691.

\655\Id., 691-692.

The ``bright-line'' rule previously observed no longer holds. Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.

Power of the President to Guide Enforcement of the Penal Law. -- This matter also came to a head in ``the reign of Andrew Jackson,'' preceding, and indeed foreshadowing, the Duane episode by some months. ``At that epoch,'' Wyman relates in his Principles of Administrative Law, ``the first amendment of the doctrine of centralism in its entirety was set forth in an obscure opinion upon an unimportant matter--The Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels . . . were stolen from the Princess by one Polari and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by a request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written by Taney, then Attorney General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If it should be said that, the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it--I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President.''\656\

NOTE:

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court's reading of such statutes or of the Constitution,\657\ but he sometimes makes law in a more special sense. In the famous Neagle case,\658\ an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be ``a law of the United States'' in the sense of Sec. 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Miller inquired: ``Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?''\659\ Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States v. Midwest Oil Company,\660\ it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

NOTES:

\658\In re Neagle, 135 U.S. 1 (1890).

\659\Id., 64. The phrase, ``a law of the United States,'' came from the Act of March 2, 1833 (4 Stat. 632). However, in the Act of June 25, 1948, 62 Stat. 965, 28 U.S.C. Sec. 2241(c)(2), the phrase is replaced by the term, ``an act of Congress,'' thereby eliminating the basis of the holding in Neagle.

\660\236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).

``The President, by using the militia or the armed forces, or both . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it--(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law . . . .''\661\

NOTE:

These quoted provisions of the United States Code consolidate a course of legislation which began at the time of the Whiskey Rebellion of 1792.\662\ In Martin v. Mott,\663\ which arose out of the War of 1812, it was held that the authority to decide whether the exigency had arisen belonged exclusively to the President.\664\ Even before that time, Jefferson had, in 1808, in the course of his efforts to enforce the Embargo Acts, issued a proclamation ordering ``all officers having authority, civil or military, who shall be found in the vicinity'' of an unruly combination, to aid and assist ``by all means in their power, by force of arms or otherwise'' the suppression of such combination.\665\ Forty-six years later, Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave Act of 1850, marshals of the United States had authority when opposed by unlawful combinations to summon to their aid not only bystanders and citizens generally, but armed forces within their precincts, both state militia and United States officers, soldiers, sailors, and marines,\666\ a doctrine that Pierce himself improved upon two years later by asserting, with reference to the civil war then raging in Kansas, that it lay within his obligation to take care that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be used as a portion of the posse comitatus. Lincoln's call of April 15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson's conception of a posse comitatus subject to presidential call.\667\ The provisions above extracted from the United States Code ratified this conception as regards the state militias and the national forces.

NOTES:

\663\12 Wheat. (25 U.S.) 19 (1827).

\664\Id., 31-32.

\665\Wilson, Federal Aid in Domestic Disturbances, S. Doc. No. 209, 57th Congress, 2d Sess. (1907), 51.

\666\6 Ops. Atty. Gen. 446 (1854). By the Posse Comitatus Act of 1878, 20 Stat. 152, 18 U.S.C. Sec. 1385, it was provided that ``it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress. . . .'' The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General ``that by Revised Statutes 5298 and 5300 [10 U.S.C. Sec. Sec. 332, 334] the military forces, under the direction of the President, could be used to assist a marshal. 16 Ops. Atty. Gen. 162.'' B. Rich, The Presidents and Civil Disorder (Washington: 1941), 196 n. 21.

\667\12 Stat. (app.) 1258.

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody,\668\ to which the Debs case\669\ may be regarded as an addendum. Moyer, a labor leader, brought suit against Peabody for having ordered his arrest during a labor dispute which occurred while Peabody was governor of Colorado. Speaking for a unanimous Court, one Justice being absent, Justice Holmes said: ``Of course the plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation. . . . The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could release him.

NOTES:

\669\In re Debs, 158 U.S. 564 (1895).

``. . . In such a situation we must assume that he had a right under the state constitution and laws to call out troops, as was held by the Supreme Court of the State. . . . That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground for his belief.

``. . . When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.''\670\

NOTE:

The Debs Case. -- The Debs case of 1895 arose out of a railway strike which had caused the President to dispatch troops to Chicago the previous year. Coincidentally with this move, the United States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court forbidding the strike because of its interference with the mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which Debs had been jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated in the following passage of Justice Brewer's opinion for the Court: ``Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. . . . While it is not the province of the Government to interfere in any mere matter of private controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.''\671\

NOTE:

Present Status of the Debs Case. -- Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the Norris-LaGuardia Act\672\ placed substantial restrictions on the power of federal courts to issue injunctions in such situations. Though, in United States v. UMW,\673\ the Court held that the Norris-LaGuardia Act did not apply where the Government brought suit as operator of mines, language in the opinion appeared to go a good way toward repudiating the present viability of Debs, though more in terms of congressional limitations than of revised judicial opinion.\674\ It should be noted that in 1947 Congress authorized the President to seek injunctive relief in ``national emergency'' labor disputes, which would seem to imply absence of authority to act in situations not meeting the statutory definition.\675\

NOTES:

\673\330 U.S. 258 (1947). In reaching the result, Chief Justice Vinson invoked the ``rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect.'' Id., 272.

\674\Thus, the Chief Justice noted that ``we agree'' that the debates on Norris-LaGuardia ``indicate that Congress, in passing the Act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes.'' Of course, he continued, ``whether Congress so intended or not is a question different from the one before us now.'' Id., 278.

\675\61 Stat. 136, 155 (1947), 29 U.S.C. Sec. Sec. 176-180. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), with regard to the exclusivity of proceeding.

With regard to the power of the President to seek injunctive relief in other situations without statutory authority, there is no clear precedent. In New York Times Co. v. United States,\676\ the Government sought to enjoin two newspapers from publishing classified material given to them by a dissident former governmental employee. Though the Supreme Court rejected the Government's claim, five of the six majority Justices relied on First Amendment grounds, apparently assuming basic power to bring the action in the first place, and three dissenters were willing to uphold the constitutionality of the Government's action and its basic power on the premise that the President was authorized to protect the secrecy of governmental documents. Only one Justice denied expressly that power was lacking altogether to sue.\677\

NOTES:

\677\On Justice Marshall's view on the lack of authorization, see id., 740-748 (concurring opinion); for the dissenters on this issue, see id., 752, 755-759 (Justice Harlan, with whom Chief Justice Burger and Justice Blackmun joined); and see id., 727, 729-730 (Justice Stewart, joined by Justice White, concurring).

Illustrative of the President's duty to discharge the responsibilities of the United States in international law with a view to avoiding difficulties with other governments was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts, on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: ``The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant . . . should he deem it necessary in securing obedience to his proclamation of neutrality.''\678\

NOTE:

In 1854, one Lieutenant Hollins, in command of a United States warship, bombarded the town of Greytown, Nicaragua because of the refusal of local authorities to pay reparations for an attack by a mob on the United States consul.\679\ Upon his return to the United States, Hollins was sued in a federal court by Durand for the value of certain property which was alleged to have been destroyed in the bombardment. His defense was based upon the orders of the President and Secretary of the Navy and was sustained by Justice Nelson, on circuit.\680\ ``As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof; and different Departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or by force--a Department of State and a Department of the Navy.

NOTES:

\680\Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860).

``Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not infrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving.''\681\

NOTE:

This incident and this case were but two items in the 19th century advance of the concept that the President had the duty and the responsibility to protect American lives and property abroad through the use of armed forces if deemed necessary.\682\ The duty could be said to grow out of the inherent powers of the Chief Executive\683\ or perhaps out of his obligation to ``take Care that the Laws be faithfully executed.''\684\ Although there were efforts made at times to limit this presidential power narrowly to the protection of persons and property rather than to the promotion of broader national interests,\685\ no such distinction was observed in practice and so grew the concepts which have become the source of serious national controversy in the 1960s and 1970s, the power of the President to use troops abroad to observe national commitments and protect the national interest without seeking prior approval from Congress.

NOTES:

\683\Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860).

\684\M. Offutt, op. cit., n.682, 5.

\685\E. Corwin, op. cit., n.44, 198-201.

Congress and the President versus Foreign Expropriation. -- Congress has asserted itself in one area of protection of United States property abroad, making provision against uncompensated expropriation of property belonging to United States citizens and corporations. The problem of expropriation of foreign property and the compensation to be paid therefor remains an unsettled area of international law, of increasing importance because of the changes and unsettled conditions following World War II.\686\ It has been the position of the Executive Branch that just compensation is owed all United States property owners dispossessed in foreign countries and the many pre-World War II disputes were carried on between the President and the Department of State and the nation involved. But commencing with the Marshall Plan in 1948, Congress has enacted programs of guaranties to American investors in specified foreign countries.\687\ More relevant to discussion here is that Congress has attached to United States foreign assistance programs various amendments requiring the termination of assistance and imposing other economic inducements where uncompensated expropriations have been instituted.\688\ And when the Supreme Court in 1964 applied the ``act of state'' doctrine so as not to examine the validity of a taking of property by a foreign government recognized by the United States but to defer to the decision of the foreign government,\689\ Congress reacted by attaching another amendment to the foreign assistance act reversing the Court's application of the doctrine, except in certain circumstances, a reversal which was applied on remand of the case.\690\

NOTES:

\687\62 Stat. 143 (1948), as amended, 22 U.S.C. Sec. 2191 et seq. See also 22 U.S.C. Sec. 1621 et seq.

\688\76 Stat. 260 (1962), 22 U.S.C. Sec. 2370(e)(1).

\689\Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

\690\78 Stat. 1013 (1964), as amended, 22 U.S.C. Sec. 2370(e)(2), applied on remand in Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), affd. 383 F. 2d 166 (2d Cir., 1967), cert. den., 390 U.S. 956 (1968).

To avert a nationwide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country.\691\ The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress' power to supersede his order, but Congress did not do so, either then or a few days later when the President sent up a special message.\692\ On suit by the steel companies, a federal district court enjoined the seizure,\693\ and the Supreme Court brought the case up prior to decision by the court of appeals.\694\ Six-to-three, the Court affirmed the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree the opinion of the Court by Justice Black.\695\ The holding and the multiple opinions represent a setback for the adherents of ``inherent'' executive powers,\696\ but they raise difficult conceptual and practical problems with regard to presidential powers.

NOTES:

\692\H. Doc. No. 422, 82d Congress, 2d sess. (1952), 98 Cong. Rec. 3912 (1952); H. Doc. No. 496, 82d Congress, 2d sess. (1952), 98 Cong. Rec. 6929 (1952).

\693\103 F. Supp. 569 (D.D.C. 1952).

\694\The court of appeals had stayed the district court's injunction pending appeal. 197 F.2d 582 (D.C.Cir., 1952). The Supreme Court decision bringing the action up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented.

\695\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the majority with Justice Black were Justices Frankfurter, Douglas, Jackson, Burton, and Clark. Dissenting were Chief Justice Vinson and Justices Reed and Minton. For critical consideration of the case, see Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953); Roche, Executive Power and Domestic Emergency: The Quest for Prerogative, 5 West. Pol. Q. 592 (1952). For a comprehensive account, see M. Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (New York: 1977).

\696\Indeed, the breadth of the Government's arguments in the district court may well have contributed to the defeat, despite the much more measured contentions set out in the Supreme Court. See A. Westin, The Anatomy of a Constitutional Law Case (New York: 1958), 56-65 (argument in district court).

The Doctrine of the Opinion of the Court. -- The chief points urged in the Black opinion are the following: There was no statute that expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. Authority to issue such an order in the circumstances of the case was not deducible from the aggregate of the President's executive powers under Article II of the Constitution; nor was the order maintainable as an exercise of the President's powers as Commander-in-Chief of the Armed Forces. The power sought to be exercised was the lawmaking power, which the Constitution vests in the Congress alone. Even if it were true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution ``in the Government of the United States, or any Department or Officer thereof.''\697\

NOTE:

The Doctrine Considered. -- The pivotal proposition of the opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but Justice Clark would not concur and in fact stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One of the earliest pronouncements on presidential power in this area was that of Chief Justice Marshall in Little v. Barreme.\698\ There, a United States vessel under orders from the President had seized a United States merchant ship bound from a French port allegedly carrying contraband material; Congress had, however, provided for seizure only of such vessels bound to French ports.\699\ Said the Chief Justice: ``It is by no means clear that the president of the United States whose high duty it is to `take care that the laws be faithfully executed,' and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.''\700\

NOTES:

\699\1 Stat. 613 (1799).

\700\Little v. Barreme, 2 Cr. (6 U.S.) 170, 177-178 (1804).

Other examples are at hand. In 1799, President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Robbins and the action was challenged in Congress on the ground that no statutory authority existed by which the President could act; John Marshall defended the action in the House of Representatives, the practice continued, and it was not until 1848 that Congress enacted a statute governing this subject.\701\ Again, in 1793, President Washington issued a neutrality proclamation; the following year, Congress enacted the first neutrality statute and since then proclamations of neutrality have been based on acts of Congress.\702\ Repeatedly, acts of the President have been in areas in which Congress could act as well.\703\

NOTES:

\702\Cf. E. Corwin, The President's Control of Foreign Relations (New York: 1916), ch. 1.

\703\Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53, 58-59 (1953).

Justice Frankfurter's concurring opinion\704\ listed statutory authorizations for seizures of industrial property, 18 in all of which all but the first were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents without definite statutory warrant, eight of which occurred during World War I, justified in the presidential orders as being done pursuant to ``the Constitution and laws'' generally, and eleven of which occurred in World War II.\705\ The first such seizure in this period had been justified by then Attorney General Jackson as being based upon an ``aggregate'' of presidential powers stemming from his duty to see the laws faithfully executed, his commander-in-chiefship, and his general executive powers.\706\ Chief Justice Vinson's dissent dwelt liberally upon this opinion,\707\ which reliance drew a disclaimer from Justice Jackson, concurring.\708\

NOTES:

\705\Id., 611-613, 620.

\706\89 Cong. Rec. 3992 (1943).

\707\Id., 343 U.S., 695-696 (dissenting opinion).

\708\Thus, Justice Jackson noted of the earlier seizure, that ``[i]ts superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.'' Id., 648- 649 (concurring opinion). His opinion opens with the sentence: ``That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.'' Id., 634.

The dissent was also fortunate in that chief counsel for the steel companies was the eminent John W. Davis, who, as Solicitor General of the United States, had filed a brief in defense of Presidential action in 1914, which had taken precisely the view which the dissent now presented on this issue.\709\ ``Ours,'' the brief read, ``is a self- sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395; In re Debs, 158 U.S. 564, 578.) `Its means are adequate to its ends' (McCulloch v. Maryland, 4 Wheat., 316 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking powers may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, but because Congress is enthroned in authority over him, not because the Constitution directs him to do so.

NOTE:

``Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national protection in situations not covered by the acts of Congress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have seldom been challenged in the courts.''\710\

NOTE:

Power Denied by Congress. -- Justice Black's opinion of the Court notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not been taken.\711\ This statement led him only to conclude that since the power claimed did not stem from Congress, it had to be found in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure and had refused to authorize it. Justice Frankfurter stated: ``We must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever bearing on the authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.''\712\ He then reviewed the proceedings of Congress that attended the enactment of the Taft-Hartley Act and concluded that ``Congress has expressed its will to withhold this power [of seizure] from the President as though it had said so in so many words.''\713\

NOTES:

\712\Id., 597.

\713\Id., 602.

Justice Jackson attempted a schematic representation of presidential powers, which ``are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.'' Thus, there are essentially three possibilities. ``1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.''\714\ The seizure in question was placed in the third category ``because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.'' Therefore, ``we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.''\715\ That holding was not possible.

NOTES:

\715\Id., 639, 640.

Justice Burton, referring to the Taft-Hartley Act, said that ``the most significant feature of that Act is its omission of authority to seize,'' citing debate on the measure to show that the omission was a conscious decision.\716\ Justice Clark placed his reliance on Little v. Barreme,\717\ inasmuch as Congress had laid down specific procedures for the President to follow, which he had declined to follow.\718\

NOTES:

\717\2 Cr. (6 U.S.) 170 (1804).

\718\Id., 343 U.S., 662, 663.

Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules, rules the President is to see faithfully executed, than with the fact that the President's action was a form of ``lawmaking'' in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, inasmuch as it is doubtful that the opinion does lay down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of ``inherent'' presidential powers--and they are significant--the implications for the area here under consideration are cloudy and have remained so from the time of the decision.\719\

NOTE:

By the decision of the Court in Mississippi v. Johnson,\720\ in 1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial.\721\ An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanberg, who argued, inter alia, the absolute immunity of the President from judicial process.\722\ The Court refused to permit the filing, using language construable as meaning that the President was not reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited meaning of the term ``ministerial,'' the Court observed that ``[v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. . . . The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

NOTES:

\721\The Court declined to express an opinion ``whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime.'' Id., 498. See Franklin v. Massachusetts, 112 S.Ct. 2767, 2788- 2790 (1992) (Justice Scalia concurring). In National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C.Cir. 1974), the court held that a writ of mandamus could issue to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run it should be applied to him.

\722\Mississippi v. Johnson, 4 Wall. (71 U.S.) 475, 484-485 (1867) (argument of counsel).

``An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as `an absurd and excessive extravagance.'

``It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.

. . .

``The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

``The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

``Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?''\723\

NOTE:

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case,\724\ it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely, with its prior opinion. The President's counsel had argued the President was immune to judicial process, claiming ``that the independence of the Executive Branch within its own sphere . . . insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.''\725\ However, the Court held, ``neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.''\726\ The primary constitutional duty of the courts ``to do justice in criminal prosecutions'' was a critical counterbalance to the claim of presidential immunity and to accept the President's argument would disturb the separation-of-powers function of achieving ``a workable government'' as well as ``gravely impair the role of the courts under Art. III.''\727\

NOTES:

\725\Id., 706.

\726\Ibid.

\727\Id., 706-707. The issue was considered more fully by the lower courts. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6-10 (D.D.C. 1973) (Judge Sirica), affd. sub nom., Nixon v. Sirica, 487 F.2d 700, 708-712 (D.C.Cir. 1973) (en banc) (refusing to find President immune from process). Present throughout was the conflicting assessment of the result of the subpoena of President Jefferson in the Burr trial. United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23-30 (1974).

Present throughout the Watergate crisis, and unresolved by it, was the question of the amenability of the President to criminal prosecution prior to conviction upon impeachment.\728\ It was argued that the impeachment clause necessarily required indictment and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from indictment, and these arguments were advanced as one ground to deny enforcement of the subpoenas running to the President.\729\ Assertion of the same argument by Vice President Agnew was controverted by the Government, through the Solicitor General, but, as to the President, it was argued that for a number of constitutional and practical reasons he was not subject to ordinary criminal process.\730\

NOTES:

\729\Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95-122; Nixon v. Sirica, 487 F.2d 700, 756-758 (D.C.Cir., 1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the President's petition to review the propriety of the grand jury's naming him as an unindicted coconspirator, but it dismissed that petition without reaching the question. United States v. Nixon, supra, 687 n. 2.

\730\Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).

Finally, most recently, the Court has definitively resolved one of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts within the ``outer perimeter'' of his official duties.\731\ The Court's close decision was premised on the President's ``unique position in the constitutional scheme,'' that is, it was derived from the Court's inquiry of a ``kind of `public policy' analysis'' of the ``policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.''\732\ While the Constitution expressly afforded Members of Congress immunity in matters arising from ``speech or debate,'' and while it was silent with respect to presidential immunity, the Court nonetheless considered such immunity ``a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.''\733\ Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous,\734\ the Court's principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of ``supervisory and policy responsibilities of utmost discretion and sensitivity,''\735\ and diversion of his energies by concerns with private lawsuits would ``raise unique risks to the effective functioning of government.''\736\ Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; ``merely private suit[s] for damages based on a President's official acts'' do not serve this ``broad public interest'' necessitating the courts to act.\737\ Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity was to prevent; absolute immunity was required.\738\

NOTES:

\732\Id., 748.

\733\Id., 749.

\734\Id., 750-752 n. 31.

\735\Id., 750.

\736\Id., 751.

\737\Id., 754.

\738\Id., 755-757. Justices White, Brennan, Marshall, and Blackmun dissented. The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id., 748-749 n. 27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice Burger disagreed with the implication of this footnote, id., 763-764 n. 7 (concurring opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id., 770 & n. 4.

The President's Subordinates. -- While the courts may be unable to compel the President to act or to prevent him from acting, his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage\739\ or to compel by writ of mandamus the performance of a duty definitely required by law,\740\ such suits being usually brought in the United States District Court for the District of Columbia.\741\ In suits under the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority,\742\ although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.\743\

NOTES:

\740\E.g., Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 14 Pet. (39 U.S.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).

\741\This was originally on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King's Bench ``over inferior jurisdictions and officers.'' Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524, 614, 620-621 (1838). Congress has now authorized federal district courts outside the District of Columbia also to entertain such suits. 76 Stat. 744 (1962), 28 U.S.C. Sec. 1361.

\742\E.g., Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases, 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).

\743\Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature as well as being within the scope of employment, before federal official is entitled to absolute immunity).

Different rules prevail when such an official is sued for a ``constitutional tort'' for wrongs allegedly in violation of our basic charter,\744\ although the Court has hinted that in some ``sensitive'' areas officials acting in the ``outer perimeter'' of their duties may be accorded an absolute immunity from liability.\745\ Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general ``federal question'' jurisdictional statute, which, as recently amended, requires no jurisdictional amount.\746\

NOTES:

\745\Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).

\746\See 28 U.S.C. Sec. 1331. On deleting the jurisdictional amount, see P.L. 94-574, 90 Stat. 2721 (1976), and P.L. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. Sec. 1442(a).

Article II, Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Few provisions of the Constitution were adopted from English practice to the degree the section on impeachment was. In England, impeachment was a device to remove from office one who abused his office or misbehaved but who was protected by the Crown.\748\ It was a device that figured in the plans proposed to the Convention from the first, and the arguments went to such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment.\749\ The attention of the Framers was for the most part fixed on the President and his removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.

NOTES:

\748\1 W. Holdsworth, History of English Law (London: 7th ed. 1956), 379-385; Clarke, The Origin of Impeachment, in Oxford Essays in Medieval History, Presented to Herbert Salter (Oxford: 1934), 164.

\749\Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653- 667 (1916).

During the debate in the First Congress on the ``removal'' controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post,\750\ but Madison and others contended that this position was destructive of sound governmental practice,\751\ and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him ``even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.''\752\ The language of Sec. 4 does not leave any doubt that any officer in the executive branch is subject to the power; it does not appear that military officers are subject to it\753\ nor that members of Congress can be impeached.\754\

NOTES:

\751\Id., 375, 480, 496-497, 562.

\752\Id., 372.

\753\3 W. Willoughby, op. cit., n.294, 1448.

\754\This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 A. Hinds' Precedents of the House of Representatives of the United States (Washington: 1907), 2294-2318; F. Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia: 1849), 200-321.

Judges. -- Article III, Sec. 1, specifically provides judges with ``good behavior'' tenure, but the Constitution nowhere expressly vests the power to remove upon bad behavior; it has been assumed that judges are made subject to the impeachment power through being labeled ``civil officers.''\755\ The records in the Convention make this a plausible though not necessary interpretation.\756\ And, in fact, twelve of the fifteen impeachments reaching trial in the Senate have been directed at federal judges.\757\ So settled apparently is the interpretation that the major arguments, scholarly and political, have concerned the question whether judges, as well as others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges.\758\

NOTES:

\756\For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, op. cit., n.4, 22, 244, 223-224, 231; 2 id., 186. On August 27, it was successfully moved that the provision in the draft of the Committee on Detail giving the Supreme Court jurisdictions of trials of impeachment be postponed, id., 430, 431, which was one of the issues committed to the Committee of Eleven. Id., 481. That Committee reported the provision giving the Senate power to try all impeachments, id., 497, which the Convention thereafter approved. Id., 551. It may be assumed that so long as trial was in the Supreme Court, the Framers did not intend that the Justices, at least, were to be subject to the process.
The Committee of Five on August 20 was directed to report ``a mode for trying the supreme Judges in cases of impeachment,'' id., 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the House. Id., 367. Consideration of this report was postponed. On August 27, it was proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id., 428-429. The matter was not resolved by the report of the Committee on Style, which left in the ``good behavior'' tenure but contained nothing about removal. Id., 575. Therefore, unless judges were included in the term ``civil officers,'' which had been added without comment on September 8 to the impeachment clause, id., 552, they were not made removable. But see infra. n.758.

\757\The House of Representatives has approved articles of impeachment for thirteen judges. Two of the judges resigned before the trials in the Senate. After Senate trials, seven judges were convicted and removed. Those judges who were tried were: John Pickering, District Judge, 1803-1804, convicted, 3 A. Hinds' Precedents of the House of Representatives of the United States (Washington: 1907), 2319-2341; Justice Samuel Chase, 1804-1805, acquitted, id., 2342-2363; James H. Peck, District Judge, 1830, acquitted, id., 2364-2384; West H. Humphreys, District Judge, 1862, convicted, id., 2385-2397; Charles Swayne, District Judge, 1904-1905, acquitted, id., 2469-2485; Robert W. Archbald, Judge of Commerce Court, 1912-1913, convicted, 6 C. Cannon's Precedents of the House of Representatives of the United States (Washington: 1936), 498-512; Harold Louderback, District Judge, 1932, acquitted, id., 513-524; Halsted L. Ritter, 1936, District Judge, convicted, Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d sess. (1936); Harry Claiborne, District Judge, 1986, convicted, Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, S. Doc. 99-48, 99th Cong., 2d sess. (1986); Alcee Hastings, District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101-18, 101st Cong., 1st sess. (1989); Walter Nixon, District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101-22, 101st Cong., 1st sess. (1989). For discussions of these and of the four acquittals, see A. Boyan (ed.), Constitutional Aspects of Watergate: Documents and Materials (Dobbs Ferry, N.Y.: 1976) (per listings).

\758\Briefly, it has been argued that the impeachment clause of Article II is a limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define ``good behavior'' and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges--Appointment, Supervision, and Removal--Some Possibilities Under the Constitution,'' 28 Mich. L. Rev. 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer & Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of ``During Good Behavior'', 35 G.W.L. Rev. 455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 Sup. Ct. Rev. 135; Berger, Impeachment of Judges and `Good Behavior' Tenure, 79 Yale L. J. 1475 (1970) Congress did in the Judicial Conduct and Disability Act of 1980, P. L. 96-458, 94 Stat. 2035, 28 U.S.C. Sec. 1 note, 331, 332, 372, 604, provide for judicial council of the circuit disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission, op. cit., n.755, 17-26, found impeachment to be the exclusive means of removal and recommended against adoption of an alternative. The issue has been obliquely before the Court as a result of a judicial conference action disciplining a district judge, but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); id., 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was the exclusive power.

The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable by impeachment and conviction ``of mal-practice or neglect of duty.''\759\ The Committee of Detail reported as grounds ``Treason (or) Bribery or Corruption.''\760\ And the Committee of Eleven reduced the phrase to ``Treason, or bribery.''\761\ On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct which should be grounds for removal; he therefore proposed to add ``or maladministration'' following ``bribery.'' Upon Madison's objection that ``[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,'' Mason suggested ``other high crimes and misdemeanors,'' which was adopted without further recorded debate.\762\ The phrase in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.\763\

NOTES:

\760\2 id., 172, 186.

\761\Id., 499.

\762\Id., 550.

\763\1 T. Howell, State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Times (London: 1809), 90, 91; A. Simpson, Treatise on Federal Impeachments (Philadelphia: 1916), 86.

Treason is defined in the Constitution;\764\ bribery is not, but it had a clear common-law meaning and is now well covered by statute.\765\ High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses.\766\ In an unrelated action, the Convention had seemed to understand the term ``high misdemeanor'' to be quite limited in meaning,\767\ but debate prior to adoption of the phrase\768\ and comments thereafter in the ratifying conventions\769\ were to the effect that the President at least, and all the debate was in terms of the President, should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress' ``removal'' debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment.\770\ Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.\771\ While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.

NOTES:

\765\The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 3 Wheat. (16 U.S.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, Sec. 21, 1 Stat. 117.

\766\Berger, Impeachment for ``High Crimes and Misdemeanors,'' 44 S. Calif. L. Rev. 395, 400-415 (1971).

\767\The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with ``Treason, Felony or high Misdemeanors.'' 2 M. Farrand, op. cit., n.4, 174. But the phrase ``high Misdemeanors'' was replaced with ``other crimes,'' ``in order to comprehend all proper cases: it being doubtful whether `high misdemeanor' had not a technical meaning too limited.'' Id., 443.

\768\See id., 64-69, 550-551.

\769\E.g., 3 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528 (Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 (Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke ed., 1961), 439-445 (Hamilton).

\770\1 Annals of Cong. 372-373 (1789).

\771\4 J. Elliot, op. cit., n.769, 126 (Iredell); 2 id., 478 (Wilson).

Practice over the years, however, insofar as the Senate deems itself bound by the actions of previous Senates, would appear to limit the grounds of conviction to indictable criminal offenses for all officers, with the possible exception of judges.

The Chase Impeachment. -- The issue was early joined as a consequence of the Jefferson Administration's efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. ``The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.''\772\ Chase's counsel responded that to be impeachable, conduct must constitute an indictable offense.\773\ Though Chase's acquittal owed more to the political divisions in the Senate than to the merits of the arguments, it did go far to affix the latter reading to the phrase ``high Crimes and Misdemeanors'' until the turbulent period following the Civil War.\774\

NOTES:

\773\Id., 762.

\774\The full record is S. Smith & T. Lloyd (eds.), Trial of Samuel Chase, An Associate Justice of the Supreme Court of the United States . . . (Washington: 1805). On the political background and the meaning of the trial and acquittal, see Lillich, The Chase Impeachment, 4 Amer. J. Legal Hist. 49 (1960).

The Johnson Impeachment. -- President Johnson was impeached by the House on the ground that he had violated the ``Tenure of Office'' Act\775\ by dismissing a Cabinet chief. The theory of the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate trial. ``An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.''\776\ Former Justice Benjamin Curtis controverted this argument, saying: ``My first position is, that when the Constitution speaks of `treason, bribery, and other high crimes and misdemeanors,' it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.''\777\ The President's acquittal by a single vote was no doubt not the result of a choice between the two theories, but the result may be said to have placed a gloss on the impeachment language approximating the theory of the defense.

NOTES:

\776\1 Trial of Andrew Johnson, President of the United States on Impeachment (Washington: 1868), 88, 147.

\777\Id., 409.

Later Judicial Impeachments. -- With regard to federal judges, however, several successful impeachments in this Century appear to establish that the constitutional requirement of ``good behavior'' and ``high crimes and misdemeanors'' may conjoin to allow the removal of judges who have engaged in seriously questionable conduct, although no specific criminal statute may have been violated. Thus, both Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses.\778\ It is possible that Members of Congress may employ different standards with regard to judges who have life tenure than they do with regard to other officers of the Government who either serve for a term of years or who serve at the pleasure of others who serve for a term of years, but such a differentiation places a substantial burden upon the language of the Constitution.

NOTE:

With regard to the three most recent judicial impeachments, Judges Claiborne and Nixon had previously been convicted of criminal offenses, while Judge Hastings had been acquitted of criminal charges after trial. The impeachment articles charged both the conduct for which he had been indicted and trial conduct. Clearly, he was charged and convicted with criminal offenses, it being a separate question what effect the court acquittal should have.\779\

NOTE:

The Nixon Impeachment. -- For the first time in over a hundred years and for only the second time in the Nation's history, Congress moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974. In the course of the proceedings, there recurred strenuous argument with regard to the nature of an impeachable offense, whether only criminally- indictable actions qualify for that status or whether the definition is broader, and, of course, no resolution was reached.\780\

NOTE:

A second issue arose that apparently had not been considered before: whether persons subject to impeachment could be indicted and tried prior to impeachment and conviction or whether indictment could only follow the removal from office. In fact, the argument was really directed only to the status of the President, inasmuch as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that calibre.\781\ That issue similarly remained unsettled, the Supreme Court declining to provide some guidance in the course of deciding a case on executive privilege.\782\

NOTES:

\782\The grand jury had named the President as an unindicted coconspirator in the case of United States v. Mitchell, et al., No. 74- 110 (D.D.C.), apparently in the belief that he was not actually indictable while in office. The Supreme Court agreed to hear the President's claim that the grand jury acted outside its authority, but finding that resolution of the issue was unnecessary to decision of the executive privilege claim it dismissed the petition for certiorari of the President as improvidently granted. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974).

Judicial Review of Impeachments. -- It was long assumed that no judicial review of the impeachment process was possible, that impeachment presents a true ``political question'' case. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged their Senate convictions.\783\ But federal courts, setting the stage for Supreme Court consideration, held the challenges to be nonjusticiable, that the Constitution's conferral on the Senate of the "sole'' power to try impeachments demonstrated a textually demonstrable constitutional commitment of trial procedures to the Senate to decide without court review.\784\

NOTES:

\784\Nixon v. United States, 744 F.Supp. 9 (D.D.C. 1990), affd. 938 F.2d 239 (D.C.Cir. 1991), cert. granted, 112 S.Ct. 1158 (1992). However, in Hastings v. United States, 802 F.Supp. 490 (D.D.C. 1992), the court did reach the merits and held that at least in the instance of Judge Hastings, who had been acquitted in court of the criminal charges for the conduct relied on by the Senate, he was entitled to a trial before the full Senate without the interposition of the trial committee.

The foregoing commentary and annotations were originally published in a document sponsored by the United States Senate on the United States Government Printing Office website.