[Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article II. Executive Department ]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 409]]
ARTICLE II -- EXECUTIVE DEPARTMENT
__________
CONTENTS
Page
Section 1. The President.................................. 413
Clause 1. Powers and Term of the President................ 413
Nature and Scope of Presidential Power............ 413
Creation of the Presidency................ 413
Executive Power: Theory of the
Presidential Office................... 415
Hamilton and Madison.............. 416
The Myers Case.................... 418
The Curtiss-Wright Case........... 418
The Youngstown Case............... 420
The Practice in the Presidential
Office........................ 422
Executive Power: Separation-of-Powers
Judicial Protection................... 422
Tenure............................................ 425
Clauses 2, 3 and 4. Election.............................. 426
Electoral College................................. 427
``Appoint''............................... 428
State Discretion in Choosing Electors..... 429
Constitutional Status of Electors......... 430
Electors as Free Agents................... 431
Clause 5. Qualifications.................................. 433
Clause 6. Presidential Succession......................... 435
Clause 7. Compensation and Emoluments..................... 435
Clause 8. Oath of Office.................................. 436
Section 2. Powers and Duties of the President............. 436
Clause 1. Commander-in-Chiefship; Presidential Advisers;
Pardons............................................... 436
Commander-in-Chief................................ 437
Development of the Concept................ 437
The Limited View.................. 437
The Prize Cases................... 438
Impact of the Prize Cases on World
Wars I and II................. 439
Presidential Theory of the Commander-in-Chiefship
in World War II--and Beyond................... 440
Presidential War Agencies......... 441
Constitutional Status of
Presidential Agencies......... 441
Evacuation of the West Coast
Japanese...................... 442
Presidential Government of Labor
Relations..................... 443
Sanctions Implementing
Presidential Directives....... 444
The Postwar Period................ 445
The Cold War and After: Presidential Power to Use
Troops Overseas Without Congressional
Authorization................................. 447
The Historic Use of Force Abroad.......... 448
The Theory of Presidential Power.......... 450
The Power of Congress to Control the
President's Discretion................ 451
The President as Commander of the Armed Forces.... 453
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The Commander-in-Chief a Civilian Officer. 455
Martial Law and Constitutional Limitations........ 456
Martial Law in Hawaii..................... 458
Articles of War: The Nazi Saboteurs....... 459
Articles of War: World War II Crimes...... 461
Martial Law and Domestic Disorder......... 461
Presidential Advisers............................. 462
The Cabinet............................... 462
Pardons and Reprieves............................. 463
The Legal Nature of a Pardon.............. 463
Scope of the Power........................ 465
Offenses Against the United
States; Contempt of Court..... 465
Effects of a Pardon: Ex parte
Garland....................... 466
Limits to the Efficacy of a Pardon 468
Congress and Amnesty.............................. 468
Clause 2. Treaties and Appointment of Officers............ 469
The Treaty-Making Power........................... 469
President and Senate...................... 469
Negotiation, a Presidential
Monopoly...................... 470
Treaties as Law of the Land............... 471
Origin of the Conception.......... 472
Treaties and the States........... 472
Treaties and Congress............. 474
Congressional Repeal of Treaties.. 477
Treaties versus Prior Acts of
Congress...................... 478
When Is a Treaty Self-Executing... 479
Treaties and the Necessary and
Proper Clause................. 480
Constitutional Limitations on the Treaty
Power................................. 482
Interpretation and Termination of Treaties as
International Compacts........................ 487
Termination of Treaties by Notice. 487
Determination Whether a Treaty Has
Lapsed........................ 491
Status of a Treaty a Political
Question...................... 491
Indian Treaties........................... 492
Present Status of Indian Treaties. 493
International Agreements Without Senate Approval.. 494
Executive Agreements by Authorization of
Congress.............................. 495
Reciprocal Trade Agreements....... 496
The Constitutionality of Trade
Agreements.................... 496
The Lend-Lease Act................ 497
International Organizations....... 498
Executive Agreements Authorized by
Treaties.............................. 498
Arbitration Agreements............ 498
Agreements Under the United
Nations Charter............... 499
Status of Forces Agreements....... 500
Executive Agreements on the Sole
Constitutional Authority of the
President............................. 500
The Litvinov Agreement............ 503
The Hull-Lothian Agreement........ 503
The Post-War Years................ 504
The Domestic Obligation of Executive
Agreements............................ 504
The Executive Establishment....................... 507
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Office.................................... 507
Ambassadors and Other Public
Ministers..................... 507
Presidential Diplomatic Agents.... 509
Appointments and Congressional Regulation
of Offices............................ 512
Congressional Regulation of
Conduct in Office............. 516
The Loyalty Issue................. 517
Financial Disclosure and
Limitations................... 518
Legislation Increasing Duties of
an Officer.................... 519
Stages of Appointment Process............. 519
Nomination........................ 519
Senate Approval................... 519
When Senate Consent Is Complete... 520
Commissioning the Officer................. 521
Clause 3. Vacancies during Recess of Senate............... 521
Recess Appointments....................... 521
Judicial Appointments............. 522
Ad Interim Designations........... 522
The Removal Power......................... 522
The Myers Case.................... 522
The Humphrey Case................. 525
The Wiener Case................... 526
The Watergate Controversy......... 527
The Removal Power Rationalized.... 528
Other Phases of Presidential
Removal Power................. 531
The Presidential Aegis: Demands for Papers 532
Private Access to Government
Information................... 534
Prosecutorial and Grand Jury
Access to Presidential
Documents..................... 535
Congressional Access to Executive
Branch Information............ 538
Section 3. Legislative, Diplomatic, and Law Enforcement
Duties of the President.................................. 539
Legislative Role of the President................. 540
The Conduct of Foreign Relations.................. 540
The Right of Reception: Scope of the Power 540
The Presidential Monopoly................. 541
The Logan Act..................... 541
A Formal or a Formative Power..... 542
The President's Diplomatic Role... 542
Jefferson's Real Position......... 543
The Power of Recognition.................. 544
The Case of Cuba.................. 545
The Power of Nonrecognition....... 546
Congressional Implementation of
Presidential Policies................. 547
The Doctrine of Political Questions....... 548
Recent Statements of the Doctrine. 550
The President as Law Enforcer............................. 553
Powers Derived from This Duty..................... 553
Impoundment of Appropriated Funds................. 555
Power and Duty of the President in Relation to
Subordinate Executive Officers................ 559
Administrative Decentralization Versus
Jacksonian Centralism................. 560
Congressional Power Versus Presidential
Duty to the Law....................... 561
Myers Versus Morrison..................... 562
Power of the President to Guide Enforcement of the
Penal Laws.................................... 563
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The President as Law Interpreter.................. 564
Military Power In Law Enforcement: The Posse
Comitatus..................................... 565
Suspension of Habeas Corpus by the President...... 566
Preventive Martial Law............................ 566
The Debs Case............................. 567
Present Status of the Debs Case........... 568
The President's Duty in Cases of Domestic Violence
in the States................................. 569
The President as Executor of the Law of Nations... 569
Protection of American Rights of Person and
Property Abroad............................... 570
Congress and the President versus Foreign
Expropriation......................... 571
Presidential Action in the Domain of Congress--
Steel Seizure Case............................ 572
The Doctrine of the Opinion of the Court.. 573
The Doctrine Considered................... 573
Power Denied by Congress.................. 576
Presidential Immunity from Judicial Direction..... 578
The President's Subordinates.............. 582
Section 4. Impeachment.................................... 583
Impeachment....................................... 583
Persons Subject to Impeachment............ 584
Judges.................................... 584
Impeachable Offenses...................... 586
The Chase Impeachment............. 587
The Johnson Impeachment........... 588
Later Judicial Impeachments....... 589
The Nixon Impeachment............. 589
Judicial Review of Impeachments........... 590
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SEC. 1--THE PRESIDENT
ARTICLE II
EXECUTIVE DEPARTMENT
Section 1. The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of
four Years and, together with the Vice President, chosen for the same
Term, be elected, as follows:
NATURE AND SCOPE OF PRESIDENTIAL POWER
Creation of the Presidency
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, his term 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, he possessed the pardoning power, and he was
charged to take care that the laws were faithfully executed.\2\ But when
the Convention assembled and almost to its closing days, there was no
assurance that the executive department 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.
\1\The background and the action of the Convention is
comprehensively examined in C. Thach, The Creation of the Presidency
1775-1789 (Baltimore: 1923). A review of the Constitution's provisions
being put into operation is J. Hart, The American Presidency in Action
1789 (New York: 1948).
\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.
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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
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vested all powers in a unicameral 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\
\3\C. Thach, The Creation of the Presidency 1775-1789
(Baltimore: 1923), chs. 1-3.
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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 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\
\4\The plans offered and the debate is reviewed in C. Thach, The
Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 4. The text
of the Virginia Plan may be found in 1 M. Farrand, The Records of the
Federal Convention of 1787 (New Haven: rev. ed. 1937), 21.
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When the executive portion of the 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.
\5\Id., 65.
\6\Id., 65, 66, 68, 69, 70, 71, 73.
\7\Id., 93.
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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
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in the Senate the power to ``advise and consent'' with regard to these
matters.\8\
\8\The last proposal for a council was voted down on September
7. 2 id., 542.
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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.
\9\Id., 185.
\10\Id., 401.
\11\Id., 185.
\12\Id., 401.
\13\Id., 597.
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Executive Power: Theory of the Presidential Office
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 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\
\14\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635
(1952) (concurring opinion).
\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.
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Hamilton and 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 co-operation 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.
\17\32 Writings of George Washington, J. Fitzpatrick ed.
(Washington: 1939), 430. See C. Thomas, American Neutrality in 1793: A
Study in Cabinet Government (New York: 1931).
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``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 gov
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ernment. 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\
\18\7 Works of Alexander Hamilton, J. C. Hamilton ed. (New York:
1851), 76, 80-81 (emphasis in original).
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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
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contentiousness still settles upon the reading of the vesting clauses of
Articles I, II, and III.\21\
\19\1 Letters and Other Writings of James Madison (Philadelphia:
1865), 611-654.
\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.
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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 Co. v. Sawyer.\27\
\22\272 U.S. 52 (1926). See Corwin, The President's Removal
Power Under the Constitution, in 4 Selected Essays on Constitutional Law
(Chicago: 1938), 1467.
\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).
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The Curtiss-Wright Case.--Further Court support of the
Hamiltonian view was advanced in United States v. Curtiss-Wright Export
Corp.,\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
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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. . . .
\28\299 U.S. 304 (1936).
\29\Id., 315-316, 318.
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``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\
\30\Ibid.
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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
[[Page 420]]
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\
\31\Levitan, The Foreign Relations Power: An Analysis of Mr.
Justice Sutherland's Theory, 55 Yale L. J. 467 (1946); Patterson, In re
United States v. Curtiss-Wright Corp., 22 Texas L. Rev. 286, 445 (1944);
Lofgren, United States v. Curtiss-Wright Corporation: An Historical
Reassessment, 83 Yale L. J. 1 (1973), reprinted in C. Lofgren,
``Government from Reflection and Choice''--Constitutional Essays on War,
Foreign Relations, and Federalism (1986), 167.
\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.
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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 exten
[[Page 421]]
sively considered\36\ is Youngstown Sheet & Tube Co. 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
[[Page 422]]
a substantial retreat from the proclamation of vast presidential powers
made in Myers and Curtiss-Wright.\41\
\36\The issue is implicit in several of the opinions of the
Justices in New York Times Co. v. United States, 403 U.S. 713 (1971).
See id., 727, 728-730 (Justice Stewart concurring), 752, 756-759
(Justice Harlan dissenting). Assertions of inherent power to sustain
presidential action were made in Dames & Moore v. Regan, 453 U.S. 654
(1981), but the Court studiously avoided these arguments in favor of a
somewhat facile statutory analysis. Separation-of-powers analysis
informed the Court's decisions in United States v. Nixon, 418 U.S. 683
(1974), Nixon v. Administrator of General Services, 433 U.S. 425 (1977),
Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Harlow v. Fitzgerald, 457
U.S. 800 (1982). While perhaps somewhat latitudinarian in some respect
of the President's powers, the analysis looks away from inherent powers.
But see Haig v. Agee, 453 U.S. 280 (1981), in which the statutory and
congressional ratification analyses is informed with a view of a range
of presidential foreign affairs discretion combined with judicial
deference according the President de facto much of the theoretically-
based authority spelled out in Curtiss-Wright.
\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\Id., 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.
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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\
\42\For the debates on the constitutionality of the Purchase,
see E. Brown, The Constitutional History of the Louisiana Purchase,
1803-1812 (Berkeley: 1920). The differences and similarities between the
Jeffersonians and the Federalists can be seen by comparing L. White, The
Jeffersonians--A Study in Administrative History 1801-1829 (New York:
1951), with L. White, The Federalists--A Study in Administrative HISTORY
(New York: 1948). That the responsibilities of office did not turn the
Jeffersonians into Hamiltonians may be gleaned from Madison's veto of an
internal improvements bill. 2 J. Richardson (comp.), Messages and Papers
of the Presidents (Washington: 1897), 569.
\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.
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Executive Power: Separation-of-Powers Judicial Protection
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
[[Page 423]]
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\
\45\Not that there have not been a few cases prior to the
present period. See Myers v. United States, 272 U.S. 52 (1926). But a
hallmark of previous disputes between President and Congress has been
the use of political combat to resolve them, rather than a resort to the
courts. The beginning of the present period was Buckley v. Valeo, 424
U.S. 1, 109-143 (1976).
\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\Id., 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.
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[[Page 424]]
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\
\52\The Balanced Budget and Emergency Deficit Control Act of
1985, Pub. L. 99-177, 99 Stat. 1038.
\53\Id., 478 U.S., 732-733.
\54\Id., 734.
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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
[[Page 425]]
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.
\55\Id., 462 U.S., 985-86.
\56\Id., 462 U.S., 989.
\57\Id., 478 U.S., 736, 750.
\58\Id., 462 U.S., 953 n.16.
\59\Id.
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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\
\60\Pub. L. 95-52l, title VI, 92 Stat. l867, as amended by Pub.
L. 97-409, 96 Stat. 2039, and Pub. L. l00-l9l, l0l Stat. l293, 28 U.S.C.
Sec. Sec. 49, 59l et seq.
\61\Id., 487 U.S., 693-96. See also Mistretta v. United States,
488 U.S. 361, 380-84, 390-91, 408-11 (1989).
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TENURE
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
[[Page 426]]
that under the act of September 13, 1788, of ``the Old 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\
\62\As to the meaning of ``the fourth day of March,'' see
Warren, Political Practice and the Constitution, 89 U. Pa. L. Rev. 1003
(1941).
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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\
\63\E. Corwin, op. cit., n.44, 34-38, 331-339.
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Cls. 2-4--Election
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 cer
[[Page 427]]
tify, 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.
ELECTORAL COLLEGE
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
[[Page 428]]
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.
\64\2 M. Farrand, op. cit., n.4, 501.
\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.
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``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
[[Page 429]]
division of their strength, and that a uniform rule was
preferable.''\68\
\67\McPherson v. Blacker, 146 U.S. 1, 27 (1892).
\68\Id., 28-29.
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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\
\69\Ex parte Yarbrough, 110 U.S. 651 (1884).
\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 Court and the Congress. In Williams v.
Rhodes,\72\ the 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
[[Page 430]]
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.
\72\393 U.S. 23 (1968).
\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.
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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.
\79\In re Green, 134 U.S. 377, 379-380 (1890).
\80\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393
(1868).
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This function is, moreover, ``a federal function,''\81\ their
capacity to perform which results from no power which was originally
[[Page 431]]
resident in the States but which springs directly from the Constitution
of the United States.\82\
\81\Hawke v. Smith, 253 U.S. 221 (1920).
\82\Burroughs and Cannon v. United States, 290 U.S. 534, 535
(1934).
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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.
\83\Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and
Cannon v. United States, 290 U.S. 534 (1934).
\84\343 U.S. 214 (1952).
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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\
\85\Id., 232 (Justice Jackson dissenting). See The Federalist,
No. 68 (J. Cooke ed. 1961), 458 (Hamilton); 3 J. Story, Commentaries on
the Constitution of the United States (Boston: 1833), 1457.
\86\S. Rept. No. 22, 19th Congress, 1st sess. (1826), 4.
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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\
\87\All but the most recent instances are summarized in N.
Peirce, op. cit., n. 66, 122-124.
\88\115 Cong. Rec. 9-11, 145-171, 197-246 (1969).
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[[Page 432]]
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:
\89\Congress has so provided in the case of electors of the
District of Columbia, 75 Stat. 818 (1961), D.C. Code Sec. 1-1108(g), but
the reference in the text is to the power of Congress to bind the
electors of the States.
\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).
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``It is true that the 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 unconsti
[[Page 433]]
tutional. 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\
\92\Id., 228-231.
\93\Id., 232-233.
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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.
QUALIFICATIONS
All Presidents since and including Martin Van Buren were born in
the United States subsequent to the Declaration of Inde
[[Page 434]]
pendence. 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 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.
\94\8 U.S.C. Sec. 1401.
\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).
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[[Page 435]]
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.
PRESIDENTIAL SUCCESSION
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 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 Sec. 1 of the Twenty-fifth
Amendment. That Amendment as well settles a number of other pressing
questions with regard to presidential inability and succession.
\99\E. Corwin, op. cit., n.44, 53-59, 344 n. 46.
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Cls. 7-8--Compensation, Oath
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.
COMPENSATION AND EMOLUMENTS
Clause 7 may be advantageously considered in the light of the
rulings and learning arising out of parallel provision regarding
judicial salaries.\100\
\100\Cf. 13 Ops. Atty. Gen. 161 (1869), holding that a specific
tax by the United States upon the salary of an officer, to be deducted
from the amount which otherwise would by law be payable as such salary,
is a diminution of the compensation to be paid to him which, in the case
of the President, would be unconstitutional if the act of Congress
levying the tax was passed during his official term.
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[[Page 436]]
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.''
OATH OF OFFICE
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.
\101\Act of March 1, 1792, 1 Stat. 239, Sec. 12.
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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.
\102\2 J. Richardson, op. cit., n.42, 576. Chief Justice Taney,
who as a member of Jackson's Cabinet had drafted the message, later
repudiated this possible reading of the message. 2 C. Warren, The
Supreme Court in United States History (New York: 1926), 223-224.
\103\6 J. Richardson, op. cit., n.42, 25.
\104\2 Trial of Andrew Johnson (Washington: 1868), 200, 293,
296.
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SEC. 2--POWERS AND DUTIES OF THE PRESIDENT
ARTICLE II
EXECUTIVE DEPARTMENT
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 Serv
[[Page 437]]
ice 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.
COMMANDER-IN-CHIEF
Development of the Concept
Surprisingly little discussion of the Commander-in-Chief clause
is found in the 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.
\105\May, The President Shall Be Commander in Chief, in E. May
(ed.), The Ultimate Decision--The President as Commander in Chief (New
York: 1960), 1. In the Virginia ratifying convention, Madison, replying
to Patrick Henry's objection that danger lurked in giving the President
control of the military, said: ``Would the honorable member say that the
sword ought to be put in the hands of the representatives of the people,
or in other hands independent of the government altogether?'' 3 J.
Elliot, The Debates in the Several State Conventions on the Adoption of
the Federal Constitution (Washington: 1836), 393. In the North Carolina
convention, Iredell said: ``From the nature of the thing, the command of
armies ought to be delegated to one person only. The secrecy, dispatch,
and decision, which are necessary in military operations can only be
expected from one person.'' 4 id., 107.
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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 com
[[Page 438]]
mand 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.
\106\The Federalist, No. 69 (J. Cooke ed., 1961), 465.
\107\3 J. Story, Commentaries on the Constitution of the United
States (Boston: 1833), 1486.
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``. . . 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\
\108\Fleming v. Page, 9 How. (50 U.S.) 603, 615, 618 (1850).
\109\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866).
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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 situa
[[Page 439]]
tion 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.'
\110\1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C.
Sec. Sec. 331-334. See also Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32-
33 (1827), asserting the finality of the President's judgment of the
existence of a state of facts requiring his exercise of the powers
conferred by the act of 1795.
\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.
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``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\
\114\Id., 2 Bl. (67 U.S.), 668-670.
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Impact of the Prize Cases on World Wars I and II.--In brief, the
powers claimable for the President under the Com
[[Page 440]]
mander-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 War 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\
\115\See generally, E. Corwin, Total War and the Constitution
(New York: 1946).
\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.
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Presidential Theory of the Commander-in-Chiefship in World War
II--And Beyond
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
Roosevelt formulated his conception of his powers as ``Commander in
Chief in wartime'' as follows:
\119\56 Stat. 23 (1942).
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``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
inescap
[[Page 441]]
able 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\
\120\88 Cong. Rec. 7044 (1942). Congress promptly complied, 56
Stat. 765 (1942), so that the President was not required to act on his
own. But see E. Corwin, op. cit., n.44, 65-66.
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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\
\121\For a listing of the agencies and an account of their
creation to the close of 1942, see Vanderbilt, War Powers and Their
Administration, in 1942 Annual Survey of American Law (New York Univ.),
106.
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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
[[Page 442]]
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\
\122\143 F.2d 145 (D.C.Cir. 1944).
\123\Id., 149.
\124\E. Corwin, op. cit., n.42, 244, 245, 459.
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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.
\125\E.O. 9066, 7 Fed. Reg. 1407 (1942).
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It was apparently the original intention of the 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
[[Page 443]]
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\
\126\56 Stat. 173 (1942).
\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.
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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, Mr. 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
[[Page 444]]
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\
\129\E.O. 8773, 6 Fed. Reg. 2777 (1941).
\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\
\134\E.O. 9370, 8 Fed. Reg. 11463 (1943).
---------------------------------------------------------------------------
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.
\135\56 Stat. 23 (1942).
\136\322 U.S. 398 (1944).
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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
[[Page 445]]
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\
\137\Id., 404-405.
\138\E. Corwin, op. cit., n.44, 249-250.
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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.
\139\Proc. 2714, 12 Fed. Reg. 1 (1947).
\140\S.J. Res. 123, 61 Stat. 449 (1947).
\141\Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).
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Congress thereafter enacted a new Housing and Rent Act to
continue the controls begun in 1942 \142\ and continued the draft.\143\
[[Page 446]]
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 Co.,\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.
\142\61 Stat. 193 (1947).
\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\Id., 143-144.
\148\Id., 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\
\150\See A. Kelly & W. Harbison, The American Constitution--Its
Origins and Development (New York: 4th ed. 1970), ch. 31.
\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
[[Page 447]]
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.
\152\Sec. 301(1), 55 Stat. 838, 839-840 (1941).
\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).
---------------------------------------------------------------------------
The Cold War and After: Presidential Power To Use Troops Overseas
Without Congressional Authorization
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 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 whether the President had the authority to commit
troops to foreign combat without the approval of Congress, a debate
which went on inconclu
[[Page 448]]
sively between Congress and Executive\157\ and one which the courts were
content generally to consign to the exclusive consideration of those two
bodies. 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.
\156\See the discussion in National Commitments Resolution,
Report of the Senate Committee on Foreign Relations, S. Rept. No. 91-
129, 91st Congress, 1st sess. (1969); U.S. Commitments to Foreign
Powers, Hearings before the Senate Committee on Foreign Relations, 90th
Congress, 1st sess. (1967), 16-19 (Professor Bartlett).
\157\See under Article I, Sec. 8, cls. 11-14.
---------------------------------------------------------------------------
The Historic Use of Force Abroad.--In 1912, the Department of
State published a memorandum prepared by its Solicitor 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\
\158\J. Clark, Memorandum by the Solicitor for the Department of
State, Right to Protect Citizens in Foreign Countries by Landing Forces
(Washington: 1912).
\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
Kennedy and Johnson in sending troops first to Vietnam and then to
Indochina generally,\160\ and new lists have been pro
[[Page 449]]
pounded.\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 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\
\160\E.g., H. Rept. No. 127, 82d Congress, 1st sess. (1951), 55-
62; Corwin, Who Has the Power to Make War? New York Times Magazine (July
31, 1949), 11; Authority of the President to Repel the Attack in Korea,
23 Dept. State Bull. 173 (1950); Department of State, Historical Studies
Division, Armed Actions Taken by the United States Without a Declaration
of War, 1789-1967 (Res. Proj. No. 806A (Washington: 1967)). That the
compilation of such lists was more than a defense against public
criticism can be gleaned from a revealing discussion in Secretary of
State Acheson's memoirs detailing why the President did not seek
congressional sanction for sending troops to Korea. ``There has never, I
believe, been any serious doubt--in the sense of non-politically
inspired doubt--of the President's constitutional authority to do what
he did. The basis for this conclusion in legal theory and historical
precedent was fully set out in the State Department's memorandum of July
3, 1950, extensively published. But the wisdom of the decision not to
ask for congressional approval has been doubted. . . .''
After discussing several reasons establishing the wisdom of the
decision, the Secretary continued: ``The President agreed, moved also, I
think, by another passionately held conviction. His great office was to
him a sacred and temporary trust, which he was determined to pass on
unimpaired by the slightest loss of power or prestige. This attitude
would incline him strongly against any attempt to divert criticism from
himself by action that might establish a precedent in derogation of
presidential power to send our forces into battle. The memorandum that
we prepared listed eighty-seven instances in the past century in which
his predecessors had done this. And thus yet another decision was
made.'' D. Acheson, Present at the Creation (New York: 1969), 414, 415.
\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 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
[[Page 450]]
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\
\163\For some popular defenses of presidential power during the
``Great Debate,'' see Corwin, Who Has the Power to Make War? New York
Times Magazine (July 31, 1949), 11; Commager, Presidential Power: The
Issue Analyzed, New York Times Magazine (January 14, 1951), 11. Cf.
Douglas, The Constitutional and Legal Basis for the President's Action
in Using Armed Forces to Repel the Invasion of South Korea, 96 Cong.
Rec. 9647 (1950). President Truman and Secretary Acheson utilized the
argument from the U. N. Charter in defending the United States actions
in Korea, and the Charter defense has been made much of since. See,
e.g., Stromseth, Rethinking War Powers: Congress, the President, and the
United Nations, 81 Geo. L. J. 597 (1993).
\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.
[[Page 451]]
``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\
\165\Meeker, The Legality of United States Participation in the
Defense of Viet Nam, 54 Dept. State Bull. 474, 484-485 (1966). See also
Moore, The National Executive and the Use of the Armed Forces Abroad, 21
Naval War College Rev. 28 (1969); Wright, The Power of the Executive to
Use Military Forces Abroad, 10 Va. J. Int. L. 43 (1969); Documents
Relating to the War Powers of Congress, The President's Authority as
Commander-in-Chief and the War in Indochina, Senate Committee on Foreign
Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under
Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser,
Department of State), 120 (Professor Moore), 175 (Assistant Attorney
General Rehnquist).
---------------------------------------------------------------------------
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.
\166\E.g., F. Wormuth & E. Firmage, To Chain the Dog of War: The
War Power of Congress in History and Law (New York: 1986); J. Ely, War
and Responsibility: Constitutional Lessons of Vietnam and its Aftermath
(Princeton: 1993); U.S. Commitments to Foreign Powers, Hearings before
the Senate Committee on Foreign Relations, 90th Congress, 1st sess.
(1967), 9 (Professor Bartlett); War Powers Legislation, Hearings before
the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971),
7 (Professor Commager), 75 (Professor Morris), 251 (Professor Mason).
---------------------------------------------------------------------------
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
[[Page 452]]
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\
\167\P.L. 93-148, 87 Stat. 555, 50 U.S.C. Sec. Sec. 1541-1548.
For the congressional intent and explanation, see H. Rept. No. 93-287,
S. Rept. No. 93-220, and H. Rept. No. 93-547 (Conference Report), all
93d Congress, 1st sess. (1973). The President's veto message is H. Doc.
No. 93-171, 93d Congress. 1st sess. (1973). All this material is
collected in The War Powers Resolution--Relevant Documents, Reports,
Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d sess.
(Comm. Print) (GPO: 1994), 1-46. For a narrative account of passage and
an assessment of the disputed compliance to date, from the congressional
point of view, see The War Powers Resolution, A Special Study of the
House Committee on Foreign Affairs, 102d Cong., 2d sess. (Comm. Print)
(GPO: 1982).
\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).
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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 sec
[[Page 453]]
tion 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\
\173\See the text of the reports in The War Powers Resolution--
Relevant Documents, Reports, Correspondence, op. cit., n.167, 47 (Pres.
Ford on transport of refugees from Danang), 55 (Pres. Carter on
attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops
in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama),
147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262
(Pres. Clinton on Haiti).
\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.
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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\
\176\See, on proposals to amend and on congressional
responsibility, J. Ely, War and Responsibility: Constitutional Lessons
of Vietnam and its Aftermath (Princeton: 1993).
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The President as Commander of the Armed Forces
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 com
[[Page 454]]
mander. ``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\
\177\For a review of how several wartime Presidents have
operated in this sphere, see E. May (ed.), The Ultimate Decision--The
President as Commander in Chief (New York: 1960).
\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).
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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
[[Page 455]]
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.
\186\Swaim v. United States, 165 U.S. 553 (1897); and cases
there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).
\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).
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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,
[[Page 456]]
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\
\193\Surrogate's Court, Duchess County, New York, ruling July
25, 1950, that the estate of Franklin D. Roosevelt was not entitled to
tax benefits under sections 421 and 939 of the Internal Revenue Code,
which extends certain tax benefits to persons dying in the military
services of the United States. New York Times, July 26, 1950, p. 27,
col. 1.
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Martial Law and Constitutional Limitations
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
[[Page 457]]
not dealing directly with the subject of martial law, gave national
scope to the same general principle in 1863.
\194\C. Fairman, The Law of Martial Rule (Chicago: 1930), 20-22;
A. Dicey, Introduction to the Study of the Law of the Constitution (New
York: 5th ed. 1923), 283, 290.
\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).
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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.
\199\Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866).
\200\Id., 127.
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``. . . 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 inva
[[Page 458]]
sion, 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.
\201\Id., 139-140. In Ex parte Vallandigham, 1 Wall. (68 U.S.)
243 (1864), the Court had held while war was still flagrant that it had
no power to review by certiorari the proceedings of a military
commission ordered by a general officer of the Army, commanding a
military department.
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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\
\202\212 U.S. 78 (1909).
\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).
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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
[[Page 459]]
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\
\206\31 Stat. 141, 153 (1900).
\207\Duncan v. Kahanamoku, 327 U.S. 304 (1946).
\208\Id., 324.
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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\
\209\Id., 336.
\210\Id., 343.
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Articles of War: The Nazi Saboteurs.--The saboteurs were eight
youths, seven Germans and one an American, who, following
[[Page 460]]
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.
\211\Ex parte Quirin, 317 U.S. 1, 29-30, 35 (1942).
\212\Id., 41-42.
\213\Id., 28-29.
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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
[[Page 461]]
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\
\214\In re Yamashita, 327 U.S. 1 (1946).
\215\Id., 81.
\216\See Gross, The Criminality of Aggressive War, 41 Am. Pol.
Sci. Rev. 205 (1947).
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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
[[Page 462]]
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\
\217\United States Adjutant-General, Federal Aid in Domestic
Disturbances 1787-1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903);
Pollitt, Presidential Use of Troops to Enforce Federal Laws: A Brief
History, 36 N.C. L. Rev. 117 (1958). United States Marshals were also
used on approximately 30 occasions. United States Commission on Civil
Rights, Law Enforcement--A Report on Equal Protection in the South
(Washington: 1965), 155-159.
\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.
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PRESIDENTIAL ADVISERS
The Cabinet
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 con
[[Page 463]]
sist 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\
\225\1 M. Farrand, op. cit., n.4, 70, 97, 110; 2 id., 285, 328,
335-337, 367, 537-542. Debate on the issue in the Convention is reviewed
in C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923),
82, 83, 84, 85, 109, 126.
\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.
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PARDONS AND REPRIEVES
The Legal Nature of a Pardon
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\
\229\United States v. Wilson, 7 Pet. (32 U.S.) 150, 160-161
(1833).
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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.
[[Page 464]]
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\
\230\236 U.S. 79, 86 (1915).
\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.
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[[Page 465]]
Scope of the Power
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\
\236\23 Ops. Atty. Gen. 360, 363 (1901); Illinois Central
Railroad v. Bosworth, 133 U.S. 92 (1890).
\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).
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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.
[[Page 466]]
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\
\241\Ex parte Garland, 4 Wall. (71 U.S.) 333, 380 (1867).
\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.
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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
[[Page 467]]
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\
\246\4 Wall. (71 U.S.) 333, 381 (1867).
\247\Id., 380.
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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
[[Page 468]]
circumstance of aggravation even although for such past offenses there
had been a pardon granted.''\250\
\248\Id., 396-397.
\249\233 U.S. 51 (1914).
\250\Id., 59.
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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\
\251\142 U.S. 450 (1892).
\252\Knote v. United States, 95 U.S. 149, 153-154 (1877).
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Congress and Amnesty
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 pro
[[Page 469]]
nounced 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\
\253\United States v. Klein, 13 Wall. (80 U.S.) 128, 143, 148
(1872).
\254\The Laura, 114 U.S. 411 (1885).
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ARTICLE II
EXECUTIVE DEPARTMENT
SECTION 2. POWERS AND DUTIES OF THE PRESIDENT
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 TREATY-MAKING POWER
President and Senate
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, al
[[Page 470]]
though 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\
\255\2 M. Farrand, op. cit., n.4, 183.
\256\Id., 538-539.
\257\No. 64 (J. Cooke ed., 1961), 435-436.
\258\31 Annals of Congress 106 (1818).
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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
[[Page 471]]
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\
\259\Washington sought to use the Senate as a council, but the
effort proved futile, principally because the Senate balked. For the
details see E. Corwin, op. cit., n.44, 207-217.
\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.
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Treaties as Law of the Land
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\
\265\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). See
The Federalist, No. 75 (J. Cooke ed., 1961), 504-505.
\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.
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[[Page 472]]
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\
\267\See infra, Art. VI, parag. 2 (the supremacy clause).
\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.
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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 cur
[[Page 473]]
rency 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\
\274\9 W. Hening, Statutes of Virginia (Richmond: 1821), 377-
380.
\275\3 Dall. (3 U.S.) 199 (1796).
\276\Id., 236-237 (emphasis by Court).
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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\
\277\3 Cr. (7 U.S.) 454 (1806).
\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).
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[[Page 474]]
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\
\281\Terrace v. Thompson, 263 U.S. 197 (1923).
\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).
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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 ef
[[Page 475]]
fects 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\
\285\2 M. Farrand, op. cit., n.4, 392-394.
\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.
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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
[[Page 476]]
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\
\289\See infra, text at nn.312-316.
\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).
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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.
\295\S. Crandall, op. cit., n.264, 183-199.
\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.
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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
[[Page 477]]
``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.
\300\Anderson, The Extent and Limitations of the Treaty-Making
Power, 1 Amer. J. Int. L. 636, 641 (1907).
\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.
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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\
\303\Head Money Cases, 112 U.S. 580, 598-599 (1884). The
repealability of treaties by act of Congress was first asserted in an
opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year
following the doctrine was adopted judicially in a lengthy and cogently
argued opinion of Justice Curtis, speaking for a United States circuit
court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass
1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871);
United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496
(1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese
Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S.
190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721
(1893). ``Congress by legislation, and so far as the people and
authorities of the United States are concerned, could abrogate a treaty
made between this country and another country which had been negotiated
by the President and approved by the Senate.'' La Abra Silver Mining Co.
v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 6
Wall. (73 U.S.) 160, 165-166 (1868), wherein it is stated obiter that
``Congress is bound to regard the public treaties, and it had no power
. . . to nullify [Indian] titles confirmed many years before. . . .''
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[[Page 478]]
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\
\304\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-315 (1829). In
a later case, it was determined in a different situation that by its
terms the treaty in issue, which had been assumed to be executory in the
earlier case, was self-executing. United States v. Percheman, 7 Pet. (32
U.S.) 51 (1833).
\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.
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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
[[Page 479]]
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.
\307\Other cases, which are cited in some sources, appear
distinguishable. United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103
(1801), applied a treaty entered into subsequent to enactment of a
statute abrogating all treaties then in effect between the United States
and France, so that it is inaccurate to refer to the treaty as
superseding a prior statute. In United States v. Forty-Three Gallons of
Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which
the tribe ceded certain territory, later included in a State, provided
that a federal law restricting the sale of liquor on the reservation
would continue in effect in the territory ceded; the Court found the
stipulation an appropriate subject for settlement by treaty and the
provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).
\308\288 U.S. 102 (1933).
\309\42 Stat. 858, 979, Sec. 581.
\310\46 Stat. 590, 747, Sec. 581.
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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\
\311\United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801).
\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.
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[[Page 480]]
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\
\315\Q. Wright, op. cit., n.302, 207-208. See also L. Henkin,
Foreign Affairs and the Constitution (Mineola, N.Y.: 1972), 156-162.
\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).
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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
[[Page 481]]
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\
\317\Acts of March 2, 1829, 4 Stat. 359 and of February 24,
1855, 10 Stat. 614.
\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).
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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
[[Page 482]]
whether they are ``necessary and proper'' measures for the carrying of
the treaty in question into operation.
\319\18 U.S.C. Sec. Sec. 3181-3195.
\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.
\322\252 U.S. 416 (1920).
\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).
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Constitutional Limitations on the Treaty Power
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
[[Page 483]]
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\
\328\Whitney v. Robertson, 124 U.S. 190, 194 (1888).
\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.
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[[Page 484]]
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\
\335\354 U.S. 1 (1957) (plurality opinion).
\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.
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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
[[Page 485]]
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\
\337\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Fairfax's
Devisee v. Hunter's Lessee, 7 Cr. (11 U.S.) 603 (1813); Chirac v.
Chirac, 2 Wheat. (15 U.S.) 259 (1817); Hauenstein v. Lynham, 100 U.S.
483 (1880). Jefferson, in his list of exceptions to the treaty power,
thought the Constitution ``must have meant to except out of these the
rights reserved to the States, for surely the President and Senate
cannot do by treaty what the whole Government is interdicted from doing
in any way.'' Jefferson's Manual of Parliamentary Practice, Sec. 594,
reprinted in The Rules and Manual of the House of Representatives, H.
Doc. 102-405, 102d Congress, 2d sess. (1993), 298-299. But this view has
always been the minority one. Q. Wright, op. cit., n.302, 92 n.97. The
nearest the Court ever came to supporting this argument appears to be
Frederickson v. Louisiana, 23 How. (64 U.S.) 445, 448 (1860).
\338\Missouri v. Holland, 252 U.S. 416 (1920).
\339\Id., 433.
\340\Id., 435.
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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.
\341\1 W. Willoughby, op. cit., n.294, 569. And see L. Henkin,
op. cit., n.315, 143-148; Restatement, Foreign Relations, op. cit., 262,
Sec. 302, Comment d, & Reporters' Note 3, pp. 154-157.
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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
[[Page 486]]
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.
\342\E.g., Geofroy v. Riggs, 133 U.S. 258, 266-267 (1890);
Holden v. Joy, 17 Wall. (84 U.S.) 211, 243 (1872). Jefferson listed as
an exception from the treaty power ``those subjects of legislation in
which [the Constitution] gave a participation to the House of
Representatives'' although he admitted ``that it would leave very little
matter for the treaty power to work on.'' Jefferson's Manual, op. cit.,
n.337, 299.
\343\Q. Wright, op. cit., n.302, 101-103. See also, L. Henkin,
op. cit., n.315, 148-151.
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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\
\344\Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v.
Riggs, 133 U.S. 258, 267 (1890).
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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\
\345\``[I]t must be assumed that the framers of the Constitution
intended that [the treaty power] should extend to all those objects
which in the intercourse of nations had usually been regarded as the
proper subjects of negotiation and treaty. . . .'' Holden v. Joy 17
Wall. (84 U.S.) 211, 243 (1872). With the exceptions noted, ``it is not
perceived that there is any limit to the questions which can be adjusted
touching any matter which is properly the subject of negotiation with a
foreign country.'' Geofroy v. Riggs, 133 U.S. 258, 267 (1890). ``The
treatymaking power of the United States . . . does extend to all proper
subjects of negotiation between our government and other nations.''
Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
\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).
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[[Page 487]]
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.
\348\Cf. United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 318 (1936); Holmes v. Jenison, 14 Pet. (39 U.S.) 540, 575-576
(1840).
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Interpretation and Termination of Treaties as International
Compacts
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.
\349\1 Stat. 578 (1798).
\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.
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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
[[Page 488]]
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.
\351\The matter was most extensively canvassed in the debate
with respect to President Carter's termination of the Mutual Defense
Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the
various views argued in Treaty Termination, Hearings before the Senate
Committee on Foreign Relations, 96th Congress, 1st sess. (1979). On the
issue generally, see Restatement, Foreign Relations, op. cit., n.262,
Sec. 339; CRS Study, 158-167; L. Henkin, op. cit., n.315, 167-171;
Bestor, Respective Roles of Senate and President in the Making and
Abrogation of Treaties--The Original Intent of the Framers of the
Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger,
The President's Unilateral Termination of the Taiwan Treaty, 75 Nw. U.
L. Rev. 577 (1980).
---------------------------------------------------------------------------
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-
[[Page 489]]
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\
\352\Compare the different views of the 1846 action in Treaty
Termination, Hearings before the Senate Committee on Foreign Relations,
96th Congress, 1st sess. (1979), 160-162 (memorandum of Hon. Herbert
Hansell, Legal Advisor, Department of State), and in Taiwan, Hearings
before the Senate Committee on Foreign Relations, 96th Congress, 1st
sess. (1979), 300 (memorandum of Senator Goldwater).
\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.
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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\
\359\5 J. Richardson, op. cit., n.42, 279, 334.
\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.
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[[Page 490]]
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\
\361\Compare, e.g., Treaty Termination, Hearings before the
Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979),
156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department
of State), with Taiwan, Hearings before the Senate Committee on Foreign
Relations, 96th Congress, 1st sess. (1979), 300-307 (memorandum of
Senator Goldwater). See CRS Study, op. cit., n.262, 164-166.
\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).
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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 resolu
[[Page 491]]
tion 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\
\365\Note that the President terminated the treaty in the face
of an expression of the sense of Congress that prior consultation
between President and Congress should occur. 92 Stat. 730, 746 (1978).
\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).
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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\
\369\229 U.S. 447 (1913).
\370\Id., 473-476.
\371\Clark v. Allen, 331 U.S. 503 (1947).
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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
[[Page 492]]
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.
\372\23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).
\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.
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Indian Treaties
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\
\374\5 Pet. (30 U.S.) 1 (1831).
\375\6 Pet. (31 U.S.) 515 (1832).
\376\Id., 558.
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Later cases established that the power to make treaties with the
Indian tribes was coextensive with the power to make treaties
[[Page 493]]
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\
\377\Holden v. Joy, 17 Wall. (84 U.S.) 211, 242 (1872); United
States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick
v. United States, 208 U.S. 340, 355-356 (1908).
\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).
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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.
\382\16 Stat. 566; Rev. Stat. Sec. 2079, now contained in 25
U.S.C. Sec. 71.
\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).
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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
[[Page 494]]
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\
\387\Choate v. Trapp, 224 U.S. 665, 677-678 (1912); Jones v.
Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987)
(section of law providing for escheat to tribe of fractionated interests
in land representing less than 2% of a tract's total acreage violates
Fifth Amendment's taking clause by completely abrogating rights of
intestacy and devise).
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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.
INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL
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.
\388\Compare Article II, Sec. 2, cl. 2, and Article VI, cl. 2,
with Article I, 10, cls. 1 and 3. Cf. Holmes v. Jennison, 14 Pet. (39
U.S.) 540, 570-572 (1840). And note the discussion in Weinberger v.
Rossi, 456 U.S. 25, 28-32 (1982).
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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
[[Page 495]]
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\
\389\CRS Study, op. cit., n.262, xxxiv-xxxv, 13-16. Not all such
agreements, of course, are published, either because of national-
security/secrecy considerations or because the subject matter is
trivial. In a 1953 hearing exchange, Secretary of State Dulles estimated
that about 10,000 executive agreements had been entered into in
connection with the NATO treaty. ``Every time we open a new privy, we
have to have an executive agreement.'' Hearing on S.J. Res. 1 and S.J.
Res. 43, Before a Subcommittee of the Senate Judiciary Committee, 83d
Congress, 1st sess. (1953), 877.
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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\
\390\One authority concluded that of the executive agreements
entered into between 1938 and 1957, only 5.9 percent were based
exclusively on the President's constitutional authority. McLaughlin, The
Scope of the Treaty Power in the United States--II, 43 Minn. L. Rev.
651, 721 (1959). Another, somewhat overlapping study found that in the
period 1946-1972, 88.3% of executive agreements were based at least in
part on statutory authority; 6.2% were based on treaties, and 5.5% were
based solely on executive authority. International Agreements: An
Analysis of Executive Regulations and Practices, A Study Prepared for
the Senate Committee on Foreign Relations by the Congressional Research
Service, 95th Cong., 1st sess. (Comm. Print) (1977), 22.
\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).
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Executive Agreements by Authorization of Congress
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
[[Page 496]]
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\
\392\1 Stat. 138 (1790). See E. Byrd, op. cit., n.292, 53 n.146.
\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.
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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\
\397\Id., 121-127; W. McClure, op. cit., n.393, 83-92, 173-189.
\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.
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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 legis
[[Page 497]]
lative 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\
\403\143 U.S. 649 (1892).
\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.
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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-
[[Page 498]]
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.
\407\55 Stat. 31.
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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\
\408\E.g., 48 Stat. 1182 (1934), authorizing the President to
accept membership for the United States in the International Labor
Organization.
\409\See E. Corwin, op. cit., n.44, 216.
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Executive Agreements Authorized by Treaties
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
[[Page 499]]
numbers,''\411\ a statement supported by both Willoughby and Moore.\412\
\410\W. McClure, op. cit., n.393, 13-14.
\411\Id., 14.
\412\1 W. Willoughby, op. cit., n.294, 543.
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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.''
\413\A Decade of American Foreign Policy, S. Doc. No. 123, 81st
Cong., 1st Sess., 126 (1950).
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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\
\414\Id., 158.
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[[Page 500]]
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\
\415\Wilson v. Girard, 354 U.S. 524 (1957).
\416\Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality
opinion); id., 66 (Justice Harlan concurring).
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Executive Agreements on the Sole Constitutional Authority of the
President
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 be
[[Page 501]]
fore 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.
\417\3 J. Story, Commentaries on the Constitution of the United
States (Boston: 1833), 1397.
\418\S. Crandall, op. cit., n.264, ch. 8; see also W. McClure,
op. cit., n.393, chs. 1, 2.
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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\
\419\Id., 49-50.
\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)).
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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
[[Page 502]]
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\
\423\Id., 245.
\424\S. Crandall, op. cit., n.264, 103-104.
\425\Id., 104.
\426\1 W. Willoughby, op. cit., n.294, 539.
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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 govern
[[Page 503]]
ment 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\
\427\W. McClure, op. cit., n.393, 98.
\428\Id., 96-97.
\429\Id., 98-99.
\430\Id., 99-100.
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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\
\431\Id., 140-144.
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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 min
[[Page 504]]
ister in Washington, whereby the United States acquired the right to
occupy Greenland for purposes of defense.\434\
\432\Id., 391.
\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).
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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\
\435\See A Decade of American Foreign Policy, Basic Documents
1941-1949, S. Doc. No. 123, 81st Congress, 1st sess. (1950), pt. 1.
\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.
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The Domestic Obligation of Executive Agreements
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
[[Page 505]]
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.
\438\In 1918, Secretary of State Lansing assured the Senate
Foreign Relations Committee that the Lansing-Ishii Agreement had no
binding force on the United States, that it was simply a declaration of
American policy so long as the President and State Department might
choose to continue it. 1 W. Willoughby, op. cit., n.294, 547. In fact,
it took the Washington Conference of 1921, two formal treaties, and an
exchange of notes to eradicate it, while the ``Gentlemen's Agreement''
was finally ended after 17 years only by an act of Congress. W. McClure,
op. cit., n.393, 97, 100.
\439\See E. Byrd, op. cit., n.292, 151-157.
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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\
\440\E.g., United States v. One Bag of Paradise Feathers, 256 F.
301, 306 (2d Cir., 1919); 1 W. Willoughby, op. cit., n.294, 589. The
State Department held the same view. 5 G. Hackworth, Digest of
International Law (Washington: 1944), 426.
\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
[[Page 506]]
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.
\445\315 U.S. 203 (1942).
---------------------------------------------------------------------------
``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 constitu
[[Page 507]]
tional sphere, seeks enforcement of its foreign policy in the
courts.''\446\
\446\Id., 229-234. Chief Justice Stone and Justice Roberts
dissented.
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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\
\447\The decision in Dames & Moore v. Regan, 453 U.S. 654
(1981), is rich in learning on many topics involving executive
agreements, but the Court's conclusion that Congress had either
authorized various presidential actions or had long acquiesced in others
leaves the case standing for little on our particular issue of this
section.
\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.''
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THE EXECUTIVE ESTABLISHMENT
Office
``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\
\450\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393
(1868).
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Ambassadors and Other Public Ministers.--The term ``ambassadors
and other public ministers,'' comprehends ``all officers having
diplomatic functions, whatever their title or designa
[[Page 508]]
tion.''\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.
\451\7 Ops. Atty. Gen. 168 (1855).
\452\It was so assumed by Senator William Maclay. The Journal of
William Maclay, E. Maclay ed. (New York: 1890), 109-110.
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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
[[Page 509]]
States have relations with all other independent powers; and the
management of those relations is vested in the Executive.''\453\
\453\26 Annals of Congress 694-722 (1814) (quotation appearing
at 699); 4 Letters and Other Writings of James Madison (Philadelphia:
1865), 350-353.
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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\
\454\10 Stat. 619, 623.
\455\7 Ops. Atty. Gen. 186, 220 (1855).
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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.
\456\60 Stat. 999, superseded by the Foreign Service Act of
1980, P. L. 96-465, 94 Stat. 2071, 22 U.S.C. Sec. 3901 et seq.
---------------------------------------------------------------------------
Presidential Diplomatic Agents
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 exist
[[Page 510]]
ence 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\
\457\11 T. Benton, Abridgement of the Debates of Congress
(Washington: 1860), 221.
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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 Amer
[[Page 511]]
ican 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.
\458\S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104.
\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.
\460\See 2 G. Hoar, Autobiography of Seventy Years (New York:
1903), 48-51.
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[[Page 512]]
Appointments and Congressional Regulation of Offices
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\ De
[[Page 513]]
spite 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\
\461\However, ``Congress' power . . . is inevitably bounded by
the express language of Article II, cl. 2, and unless the method it
provides comports with the latter, the holders of those offices will not
be `Officers of the United States.''' Buckley v. Valeo, 424 U.S. 1, 138-
139 (1976) (quoted in Freytag v. CIR, 501 U.S. 868, 883 (1991)).
\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.
\465\Buckley v. Valeo, 424 U.S. 1, 109-143 (1976). The Court
took pains to observe that the clause was violated not only by the
appointing process but by the confirming process, inclusion of the House
of Representatives, as well. Id., 137. See also Metropolitan Washington
Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,
501 U.S. 252 (1991).
---------------------------------------------------------------------------
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
[[Page 514]]
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\
\466\Concurrently, of course, although it may seem odd, the
question of what is a ``Court[] of Law'' for purposes of the
appointments clause is unsettled. See Freytag v. CIR, 501 U.S. 868
(1991) (Court divides 5-to-4 whether an Article I court is a court of
law under the clause).
\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.
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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
[[Page 515]]
every organ in the executive Branch is a department would multiply the
number of actors eligible to appoint.''\470\
\469\Freytag v. CIR, 501 U.S. 868, 919 (1991) (Justice Scalia
concurring).
\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 im
[[Page 516]]
mediately below the President in the organizational structure of the
Executive Branch.''\475\
\471\Id., 886 (citing Germaine and Burnap, the opinion clause,
Article II, Sec. 2, and the 25th Amendment, which, in its Sec. 4,
referred to ``executive departments'' in a manner that reached only
cabinet-level entities). But compare id., 915-922 (Justice Scalia
concurring).
\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).
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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\
\476\Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839). The
suggestion was that inferior officers are intended to be subordinate to
those in whom their appointment is vested. Id., 257-258; United States
v. Germaine, 99 U.S. 508, 509 (1879).
\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).
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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 in
[[Page 517]]
corporated 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\
\479\19 Stat. 143, 169 (1876).
\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.
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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.
\484\54 Stat. 767 (1940), then 5 U.S.C. Sec. 7324(a). By P. L.
103-94, Sec. Sec. 2(a), 12, 107 Stat. 1001, 1011, to be codified at 5
U.S.C. Sec. Sec. 7321-7325, Congress liberalized the restrictions of the
Act, allowing employees to take an active part in political management
or in political campaigns, subject to specific exceptions. The 1940 law,
Sec. 12(a), 54 Stat. 767-768, also applied the same broad ban to
employees of federally funded state and local agencies, but this
provision was amended in 1974 to bar state and local government
employees only from running for public office in partisan elections. Act
of Oct. 15, 1974, P. L. 93-443, Sec. 401(a), 88 Stat. 1290, 5 U.S.C.
Sec. 1502.
\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).
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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
[[Page 518]]
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\
\486\53 Stat. 1147, 5 U.S.C. Sec. 7311.
\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).
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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
[[Page 519]]
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.
\492\P. L. 95-521, tits. I-III, 92 Stat. 1824-1861. The Act was
originally codified in three different titles, 2, 5, and 28,
corresponding to legislative, executive, and judicial branch personnel,
but by P. L. 101-194, title II, 103 Stat. 1725 (1989), one comprehensive
title, as amended, applying to all covered federal personnel was
enacted. 5 U.S.C.App. Sec. Sec. 101-111.
\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).
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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\
\499\Shoemaker v. United States, 147 U.S. 282, 301 (1893).
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Stages of Appointment Process
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\
\500\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 155-156 (1803)
(Chief Justice Marshall). Marshall's statement that the appointment ``is
the act of the President,'' conflicts with the more generally held and
sensible view that when an appointment is made with its consent, the
Senate shares the appointing power. 3 J. Story, Commentaries on the
Constitution of the United States (Boston: 1833), 1525; Matter of
Hennen, 13 Pet. (38 U.S.) 230, 259 (1839).
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Senate Approval.--The fact that the power of nomination belongs
to the President alone prevents the Senate from attaching
[[Page 520]]
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.
\501\3 Ops. Atty. Gen. 188 (1837).
\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.
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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\
\503\286 U.S. 6 (1932).
\504\E. Corwin, op. cit., n.44, 77.
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Section 3. The President * * * shall Commission all the Officers of
the United States.
[[Page 521]]
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\
\505\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 157-158, 173
(1803).
\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.
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ARTICLE II
EXECUTIVE DEPARTMENT
SECTION 2. POWERS AND DUTIES OF THE PRESIDENT
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.
Recess Appointments
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 adjourn
[[Page 522]]
ments,\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\
\508\See the following Ops. Atty. Gen.: 1:631 (1823); 2:525
(1832); 3:673 (1841); 4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32
(1866); 12:455 (1868); 14:563 (1875); 15:207 (1877); 16:523 (1880);
18:28 (1884); 19:261 (1889); 26:234 (1907); 30:314 (1914); 33:20 (1921).
In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not
to apply to a yet unfilled office which was created during the previous
session of Congress, but this distinction was rejected in the following
Ops. Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In
harmony with the opinions is United States v. Allocco, 305 F.2d 704 (2d
Cir. 1962). For the early practice with reference to recess
appointments, see 2 G. Haynes, The Senate of the United States, (Boston:
1938), 772-778.
\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).
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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\
\511\United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en
banc), cert. den., 475 U.S. 1048 (1986). The opinions in the court of
appeals provide a wealth of data on the historical practice of giving
recess appointments to judges, including the developments in the
Eisenhower Administration, when three Justices, Warren, Brennan, and
Stewart, were so appointed and later confirmed after participation on
the Court. The Senate in 1960 adopted a ``sense-of-the-Senate''
resolution suggesting the practice was not a good idea. 106 Cong. Rec.
18130-18145 (1960).
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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\
\512\See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41
(1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).
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The Removal Power
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
[[Page 523]]
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\
\513\272 U.S. 52 (1926).
\514\19 Stat. 78, 80.
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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
[[Page 524]]
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\
\515\Id., 272 U.S., 163-164.
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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
[[Page 525]]
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.
\516\The reticence of the Constitution respecting removal left
room for four possibilities: first, the one suggested by the common law
doctrine of ``estate in office,'' from which the conclusion followed
that the impeachment power was the only power of removal intended by the
Constitution; second, that the power of removal was an incident of the
power of appointment and hence belonged, at any rate in the absence of
legal or other provision to the contrary, to the appointing authority;
third, that Congress could, by virtue of its power ``to make all laws
which shall be necessary and proper,'' etc., determine the location of
the removal power; fourth, that the President by virtue of his
``executive power'' and his duty ``to take care that the laws be
faithfully executed,'' possesses the power of removal over all officers
of the United States except judges. In the course of the debate on the
act to establish a Department of Foreign Affairs (later changed to
Department of State) all of these views were put forward, with the final
result that a clause was incorporated in the measure that implied, as
pointed out above, that the head of the department would be removable by
the President at his discretion. Contemporaneously, and indeed until
after the Civil War, this action by Congress, in other words ``the
decision of 1789,'' was interpreted as establishing ``a practical
construction of the Constitution'' with respect to executive officers
appointed without stated terms. However, in the dominant opinion of
those best authorized to speak on the subject, the ``correct
interpretation'' of the Constitution was that the power of removal was
always an incident of the power of appointment, and that therefore in
the case of officers appointed by the President with the advice and
consent of the Senate the removal power was exercisable by the President
only with the advice and consent of the Senate. For an extensive review
of the issue at the time of Myers, see Corwin, The President's Removal
Power Under the Constitution, in 4 Selected Essays on Constitutional Law
(Chicago: 1938), 1467.
\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
[[Page 526]]
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\
\520\Id., 295 U.S., 627-629, 631-632. Justice Sutherland's
statement, quoted above, that a Federal Trade Commissioner ``occupies no
place in the executive department'' was not necessary to the decision of
the case, was altogether out of line with the same Justice's reasoning
in Springer v. Philippine Islands, 277 U.S. 189, 201-202 (1928), and
seems later to have caused the author of it much perplexity. See R.
Cushman, The Independent Regulatory Commission (New York: 1941), 447-
448. As Professor Cushman adds: ``Every officer and agency created by
Congress to carry laws into effect is an arm of Congress. . . . The term
may be a synonym; it is not an argument.'' Id., 451.
---------------------------------------------------------------------------
The Wiener Case.--Curtailment of the President's power of
removal, so liberally delineated in the Myers decision, was not to
[[Page 527]]
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.
\521\357 U.S. 349 (1958).
---------------------------------------------------------------------------
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 vio
[[Page 528]]
lated 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.
\522\28 U.S.C. Sec. 516.
\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
[[Page 529]]
considerable doubt on the continuing validity of Humphrey's Executor.
\530\Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson,
487 U.S. 654 (1988). This is not to say that the language and analytical
approach of Synar are not in conflict with that of Morrison; it is to
say that the results are consistent and the analytical basis of the
latter case does resolve the ambiguity present in some of the
reservations in Synar.
---------------------------------------------------------------------------
In Bowsher v. Synar,\531\ the Court held that when Congress
itself retains the power to remove an official it could not vest him
with the exercise of executive power. Invalidated in Synar were
provisions of the l985 ``Gramm-Rudman-Hollings'' Deficit Control
Act\532\ vesting in the Comptroller General authority to prepare a
detailed report on projected federal revenue and expenditures and to
determine mandatory across-the-board cuts in federal expenditures
necessary to reduce the projected budget deficit by statutory targets.
By a 1921 statute, the Comptroller General was removable by joint
congressional resolution for, inter alia, ``inefficiency,'' ``neglect of
duty,'' or ``malfeasance.'' ``These terms are very broad,'' the Court
noted, and ``could sustain removal of a Comptroller General for any
number of actual or perceived transgressions of the legislative will.''
Consequently, the Court determined, ``the removal powers over the
Comptroller General's office dictate that he will be subservient to
Congress.''\533\
\531\478 U.S. 714 (1986).
\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\
\534\Id., 726.
\535\Id., 725 n. 4.
\536\487 U.S. 654 (1988).
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[[Page 530]]
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 con
[[Page 531]]
stitutional duty, and the functions of the officials in question must be
analyzed in that light.''\538\
\537\Pub. L. 95-521, title VI, 92 Stat. 1867, as amended by Pub.
L. 97-409, 96 Stat. 2039, and Pub. L. 100-191, 101 Stat. 1293, 28 U.S.C.
Sec. Sec. 49, 591 et seq.
\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\
\539\But notice the analysis followed by three Justices in
Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482-489
(1989) (concurring), and consider the possible meaning of the recurrence
to formalist reasoning in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
(1989). And see Justice Scalia's utilization of the ``take care'' clause
in pronouncing limits on Congress' constitutional power to confer
citizen standing in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130,
2142-2146 (1992), although it is not clear that he had a majority of the
Court with him.
---------------------------------------------------------------------------
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.
\540\Indeed, the Court explicitly analogized the civil
enforcement powers of the independent agencies to the prosecutorial
powers wielded by the independent counsel. Morrison v. Olson, 487 U.S.
654, 692 n. 31 (1988).
---------------------------------------------------------------------------
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
[[Page 532]]
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.
\541\United States v. Perkins, 116 U.S. 483 (1886), cited with
approval in Myers v. United States, 272 U.S. 52, 161-163, 164 (1926),
and Morrison v. Olson, 487 U.S. 654, 689 n. 27 (1988).
\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).
---------------------------------------------------------------------------
The Presidential Aegis: Demands for Papers
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.
\546\E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S.
1 (1890).
\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
[[Page 533]]
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 litiga
[[Page 534]]
tion involved, of course, the claim of confidentiality of conversations
between the President and his aides.
\550\For a good statement of the basis of the doctrine, the
areas in which it is asserted, and historical examples, see Executive
Privilege: The Withholding of Information by the Executive, Hearings
before the Senate Judiciary Subcommittee on Separation of Powers, 92d
Congress, 1st sess. (1971), 420-443, (then-Assistant Attorney General
Rehnquist). Former Attorney General Rogers, in stating the position of
the Eisenhower Administration, identified five categories of executive
privilege: (1) military and diplomatic secrets and foreign affairs, (2)
information made confidential by statute, (3) information relating to
pending litigation, and investigative files and reports, (4) information
relating to internal government affairs privileged from disclosure in
the public interest, and (5) records incidental to the making of policy,
including interdepartmental memoranda, advisory opinions,
recommendations of subordinates, and informal working papers. The Power
of the President To Withhold Information from the Congress, Memorandum
of the Attorney General, Senate Judiciary Subcommittee on Constitutional
Rights, 85th Congress, 2d sess. (Comm. Print) (1958), reprinted as
Rogers, Constitutional Law: The Papers of the Executive Branch, 44
A.B.A.J. 941 (1958). In the most expansive version of the doctrine,
Attorney General Kleindeinst argued that the President could assert the
privilege as to any employee of the Federal Government to keep secret
any information at all. Executive Privilege, Secrecy in Government,
Freedom of Information, Hearings before the Senate Government Operations
Subcommittee on Intergovernmental Relations, 93d Congress, 1st sess.
(1973), I:18 passim. For a strong argument that the doctrine lacks any
constitutional or other legal basis, see R. Berger, Executive Privilege:
A Constitutional Myth (Cambridge: 1974). The book, however, precedes the
Court decision in Nixon.
---------------------------------------------------------------------------
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\
\551\There are also, of course, instances of claimed access for
other purposes, for which the Freedom of Information Act, 80 Stat. 383
(1966), 5 U.S.C. Sec. 552, provides generally for public access to
governmental documents. In 522(b), however, nine types of information
are exempted from coverage, several of which relate to the types as to
which executive privilege has been asserted, such as matter classified
pursuant to executive order, interagency or intra-agency memoranda or
letters, and law enforcement investigatory files. See, e.g., EPA v.
Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA
v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493
U.S. 146 (1989); Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert.
den., 415 U.S. 977 (1974).
\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.
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[[Page 535]]
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\
\555\345 U.S. 1 (1953).
\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).
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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 execu
[[Page 536]]
tive privilege, insofar as the assertion of that privilege relates to
presidential conversations and indirectly to other areas as well.
\557\United States v. Nixon, 418 U.S. 683, 692-697 (1974).
---------------------------------------------------------------------------
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\
\558\Id., 707-708. Presumably, the opinion recognizes a similar
power existent in the federal courts to preserve the confidentiality of
judicial deliberations, cf. New York Times Co. v. United States, 403
U.S. 713, 752 n. 3 (1971) (Chief Justice Burger dissenting), and in each
House of Congress to treat many of its papers and documents as
privileged. Cf. Soucie v. David, 448 F. 2d 1067, 1080, 1081-1982
(C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation
and Speech Review Policies, Hearings before the Senate Committee on
Armed Services, 87th Congress, 2d sess. (1962), 512 (Senator Stennis).
See Calley v. Callaway, 519 F. 2d 184 (5th Cir., 1975) (en banc), cert.
den., 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95
(D.D.C., 1974).
---------------------------------------------------------------------------
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
[[Page 537]]
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\
\559\418 U.S. 683, 711-713. Essentially the same decision had
been arrived at in the context of subpoenas of tapes and documentary
evidence for use before a grand jury in Nixon v. Sirica, 487 F. 2d 700
(D.C.Cir. 1973).
---------------------------------------------------------------------------
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 be
[[Page 538]]
yond 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.
\560\433 U.S. 425, 446-455 (1977). See id., 504, 545 (Chief
Justice Burger and Justice Rehnquist dissenting). The decision does
resolve one outstanding question; assertion of the privilege is not
limited to incumbent Presidents. Id., 447-449. Subsequently, a court
held that former-President Nixon had had such a property expectancy in
his papers that he was entitled to compensation for their seizure under
the Act. Nixon v. United States, 978 F.2d 1269 (D.C.Cir. 1992).
---------------------------------------------------------------------------
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.
\561\See the extensive discussion in Shane, Legal Disagreement
and Negotiation in a Government of Laws: The Case of Executive Privilege
Claims Against Congress, 71 Minn. L. Rev. 461 (1987).
---------------------------------------------------------------------------
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
[[Page 539]]
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.
\562\Senate Select Committee on Presidential Campaign Activities
v. Nixon, 370 F. Supp. 521 (D.D.C.), affd., 498 F. 2d 725 (D.C.Cir.
1974).
\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.
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SEC. 3--LEGISLATIVE, DIPLOMATIC, & LAW ENFORCEMENT DUTIES OF THE PRESIDENT
ARTICLE II
EXECUTIVE DEPARTMENT
Section 3. He 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 * * *
[[Page 540]]
LEGISLATIVE ROLE OF THE PRESIDENT
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.
\565\N. Small, Some Presidential Interpretations of the
Presidency (Baltimore: 1932); W. Binkley, The President and Congress
(New York: 2d ed. 1962); E. Corwin, op. cit., n.44, chs. 1, 7.
\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.
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THE CONDUCT OF FOREIGN RELATIONS
The Right of Reception: Scope of the Power
``Ambassadors and other public ministers'' embraces not only
``all possible diplomatic agents which any foreign power may accredit to
the United States,''\569\ but also, as a practical construction of the
Constitution, all foreign consular agents, who therefore may not
exercise their functions in the United States without an exequatur from
the President.\570\ The power to ``receive'' ambassadors, et cetera,
includes, moreover, the right to refuse to receive them, to
[[Page 541]]
request their recall, to dismiss them, and to determine their
eligibility under our laws.\571\ Furthermore, this power makes the
President the sole mouthpiece of the nation in its dealing with other
nations.
\569\7 Ops. Atty. Gen. 186, 209 (1855).
\570\5 J. Moore, International Law Digest (Washington: 1906),
15-19.
\571\Id., 4:473-548; 5:19-32.
---------------------------------------------------------------------------
The Presidential Monopoly
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\
\572\Opinion on the Question Whether the Senate Has the Right to
Negative the Grade of Persons Appointed by the Executive to Fill Foreign
Missions, April 24, 1790, 5 Writings of Thomas Jefferson, P. Ford ed.
(New York: 1895), 161, 162.
\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,
[[Page 542]]
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\
\574\This measure is now contained in 18 U.S.C. Sec. 953.
\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\
\578\1 Letters and Other Writings of James Madison
(Philadelphia: 1865), 611.
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The President's Diplomatic Role.--Hamilton, although he had
expressed substantially the same view in The Federalist re
[[Page 543]]
garding 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\
\579\No. 69 (J. Cooke ed. 1961), 468.
\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
[[Page 544]]
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\
\581\4 J. Moore, International Law Digest (Washington: 1906),
680-681.
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The Power of Recognition
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\
\582\Letters of Helvidius, 5 Writings of James Madison, G. Hunt
ed. (New York: 1905), 133.
---------------------------------------------------------------------------
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
[[Page 545]]
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\
\583\1 J. Moore, International Law Digest (Washington: 1906),
243-244. See American Law Institute, Restatement (Third) of the Law, The
Foreign Relations Law of the United States (1987), Sec. Sec. 204, 205.
---------------------------------------------------------------------------
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
[[Page 546]]
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.
\584\S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20-22.
\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
[[Page 547]]
an important part of American foreign policy during the Cold War.\586\
\586\President Carter's termination of the Mutual Defense Treaty
with Taiwan, which precipitated a constitutional and political debate,
was perhaps an example of nonrecognition or more appropriately
derecognition. On recognition and nonrecognition policies in the post-
World War II era, see Restatement, Foreign Relations, op. cit., n.262,
Sec. Sec. 202, 203.
---------------------------------------------------------------------------
Congressional Implementation of Presidential Policies
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\
\587\1 Messages and Papers of Woodrow Wilson, A. Shaw ed. (New
York: 1924), 58.
---------------------------------------------------------------------------
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
[[Page 548]]
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\
\588\55 Stat. 31 (1941).
\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).
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The Doctrine of Political Questions
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.
\592\2 Pet. (27 U. S.) 253 (1829).
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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;
[[Page 549]]
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.
\593\Id., 308.
\594\13 Pet. (38 U.S.) 415 (1839).
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``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
[[Page 550]]
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\
\595\Id., 420.
\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).
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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\
\604\333 U.S. 103 (1948).
\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.
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[[Page 551]]
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\
\606\335 U.S. 160 (1948).
\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.
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[[Page 552]]
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
[[Page 553]]
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\
\608\369 U.S. 186 (1962).
\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).
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THE PRESIDENT AS LAW ENFORCER
Powers Derived From This Duty
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
[[Page 554]]
agencies; third, in what relation does he stand to the enforcement of
the criminal laws of the United States?\613\
\613\Notice that in Lujan v. Defenders of Wildlife, 112 S.Ct.
2130, 2142-2146 (1992), the Court purported to draw from the ``take
care'' clause the principle that Congress could not authorize citizens
with only generalized grievances to sue to compel governmental
compliance with the law, inasmuch as permitting that would be ``to
permit Congress to transfer from the President to the courts the Chief
Executive's most important constitutional duty, to `take Care that the
Laws be faithfully executed.''' Id., 2145.
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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\
\614\7 Ops. Atty. Gen. 453, 464-465 (1855).
\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.
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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
[[Page 555]]
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\
\619\The President, in the exercise of his executive power under
the Constitution, ``speaks and acts through the heads of the several
departments in relation to subjects which appertain to their respective
duties.'' The heads of the departments are his authorized assistants in
the performance of his executive duties, and their official acts,
promulgated in the regular course of business, are presumptively his
acts. Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 513 (1839). See also
United States v. Eliason, 16 Pet. (41 U.S.) 291 (1842); Williams v.
United States, 1 How. (42 U.S.) 290, 297 (1843); United States v. Jones,
18 How. (59 U.S.) 92, 95 (1856); The Confiscation Cases, 20 Wall. (87
U.S.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879); Wolsey v.
Chapman, 101 U.S. 755 (1880).
\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).
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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 de
[[Page 556]]
laying 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\
\624\1 J. Richardson, op. cit., n.42, 348, 360.
\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).
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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\
\626\There is no satisfactory definition of impoundment.
Legislation enacted by Congress uses the phrase ``deferral of budget
authority'' which is defined to include: ``(A) withholding or delaying
the obligation or expenditure of budget authority (whether by
establishing reserves or otherwise) provided for projects or activities;
or (B) any other type of Executive action or inaction which effectively
precludes the obligation or expenditure of budget authority, including
authority to obligate by contract in advance of appropriations as
specifically authorized by law.'' 2 U.S.C. Sec. 682(1).
\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).
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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
[[Page 557]]
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\
\628\Id., 1-6 (Senator Ervin). Of course, it was long ago
established that Congress could direct the expenditure of at least some
moneys from the Treasury, even over the opposition of the President.
Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838).
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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\
\629\Train v. City of New York, 420 U.S. 35 (1975); Train v.
Campaign Clean Water, 420 U.S. 136 (1975). See also State Highway Comm.
of Missouri v. Volpe, 479 F.2d 1099 (8th Cir., 1973); Commonwealth of
Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir., 1974) (the latter case
finding statutory discretion not to spend).
\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.
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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 per
[[Page 558]]
mitted 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\
\631\Originally passed as the Act of Feb. 27, 1906, ch. 510,
Sec. 3, 34 Stat. 27, 48. The provisions as described in the text were
added in the General Appropriations Act of 1951, ch. 896,
Sec. 1211(c)(2), 64 Stat. 595, 765. The amendments made by the
Impoundment Control Act, were Sec. 1002, 88 Stat. 332, 31 U.S.C.
Sec. Sec. 1341, 1512. On the Anti-Deficiency Act generally, see Stith,
Congress' Power of the Purse, 97 Yale L. J. 1343, 1370-1377 (1988).
\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).
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``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,
[[Page 559]]
limited to deferrals only for those purposes set out in the Anti-
Deficiency Act.\639\
\634\Sec. Sec. 1011(1), 1012, 1013, 88 Stat. 333-334, 2 U.S.C.
Sec. Sec. 628(1), 683, 684.
\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.
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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.
\640\P. L. 99-177, 99 Stat. 1037, codified as amended in titles
2, 31, and 42 U.S.C., with the relevant portions to this discussion at 2
U.S.C. Sec. 901 et seq.
\641\See Stith, Rewriting the Fiscal Constitution: The Case of
Gramm-Rudman-Hollings, 76 Calif. L. Rev. 593 (1988).
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Power and Duty of the President in Relation to Subordinate
Executive Officers
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\
\642\1 Annals of Cong. 495, 499 (1789).
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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
[[Page 560]]
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\
\643\Id., 611-612.
\644\1 Cr. (5 U.S.) 137 (1803).
\645\Id., 165-166.
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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
[[Page 561]]
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.
\646\1 Ops. Atty. Gen. 624 (1823).
\647\3 J. Richardson, op. cit., n.42, 1288.
\648\Id., 1304.
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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.
\649\12 Pet. (37 U.S.) 524 (1838).
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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 ques
[[Page 562]]
tion 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.
\650\Id., 610.
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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\
\651\Myers v. United States, 272 U.S. 52 (1926); Morrison v.
Olson, 487 U.S. 654 (1988).
\652\Id., 689-690.
\653\Id., 690-691.
\654\Id., 691.
\655\Id., 691-692.
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The ``bright-line'' rule previously observed no longer holds.
Now, Congress has a great deal more leeway in regulating execu
[[Page 563]]
tive 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
[[Page 564]]
reasons that the power of removing the District Attorney resides in the
President.''\656\
\656\B. Wyman, The Principles of the Administrative Law
Governing the Relations of Public Officers (St. Paul: 1903), 231-232.
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The President as Law Interpreter
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
[[Page 565]]
lands, both mineral and nonmineral, from private acquisition, Congress
having never repudiated the practice.
\657\United States v. Eliason, 16 Pet. (41 U.S.) 291, 301-302
(1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney,
116 U.S. 167, 180-181 (1886). For a recent analysis of the approach to
determining the validity of presidential, or other executive,
regulations and orders under purported congressional delegations or
implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301-
316 (1979).
\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).
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Military Power in Law Enforcement: The Posse Comitatus
``Whenever the President considers that unlawful obstructions,
combinations, or assemblages, or rebellion against the authority of the
United States, make it impracticable to enforce the laws of the United
States in any State or Territory by the ordinary course of judicial
proceedings, he may call into Federal service such of the militia of any
State, and use such of the armed forces, as he considers necessary to
enforce those laws or to suppress the rebellion.
``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\
\661\10 U.S.C. Sec. Sec. 332, 333. The provisions were invoked
by President Eisenhower when he dispatched troops to Little Rock,
Arkansas, in 1957 to counter resistance to Federal District Court orders
pertaining to desegregation of certain public schools in the Little Rock
School District. Although the validity of his action was never expressly
reviewed, the Court, in Cooper v. Aaron, 358 U.S. 1, 4, 18-19 (1958),
rejected a contention advanced by critics of the legality of his
conduct, namely, that the President's constitutional duty to see to the
faithful execution of the laws as implemented by the provisions quoted
above, does not afford a sanction for the use of troops to enforce
decrees of federal courts, inasmuch as the latter are not statutory
enactments which alone are comprehended within the phrase, ``laws of the
United States.'' According to the Court, a judicial decision
interpreting a constitutional provision, specifically the Court's
interpretation of the Fourteenth Amendment enunciated ``. . . in the
Brown Case [ Brown v. Board of Education, 347 U.S. 483 (1954)] is the
supreme law of the land, and Art. VI of the Constitution makes it of
binding effect . . . .''
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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
[[Page 566]]
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.
\662\1 Stat. 264 (1792); 1 Stat. 424 (1794); 2 Stat. 443 (1807);
12 Stat. 281 (1861); now covered by 10 U.S.C. Sec. Sec. 332-334.
\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.
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Suspension of Habeas Corpus by the President
See Article I, Sec. 9.
Preventive Martial Law
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
[[Page 567]]
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.
\668\212 U.S. 78 (1909).
\669\In re Debs, 158 U.S. 564 (1895).
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``. . . 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\
\670\212 U.S., 84-85. See also Sterling v. Constantin, 287 U.S.
378 (1932), which endorses Moyer v. Peabody, while emphasizing the fact
that it applies only to a condition of disorder.
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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
[[Page 568]]
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\
\671\158 U.S., 584, 586. Some years earlier, in United States v.
San Jacinto Tin Co., 125 U.S. 273, 279 (1888), the Court sustained the
right of the Attorney General and his assistants to institute suits
simply by virtue of their general official powers. ``If,'' the Court
said, ``the United States in any particular case has a just cause for
calling upon the judiciary of the country, in any of its courts, for
relief . . . the question of appealing to them must primarily be decided
by the Attorney General . . . and if restrictions are to be placed upon
the exercise of this authority it is for Congress to enact them.'' Cf.
Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792), in which the Court rejected
Attorney General Randolph's contention that he had the right ex officio
to move for a writ of mandamus ordering the United States circuit court
for Pennsylvania to put the Invalid Pension Act into effect.
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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\
\672\47 Stat. 170 (1932), 29 U.S.C. Sec. Sec. 101-115.
\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.
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[[Page 569]]
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\
\676\403 U.S. 713 (1971).
\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).
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The President's Duty in Cases of Domestic Violence in the States
See Article IV, Sec. 4, pp. 892-895, and Supra, pp. 487-488.
The President as Executor of the Law of Nations
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
[[Page 570]]
deem it necessary in securing obedience to his proclamation of
neutrality.''\678\
\678\30 Ops. Atty. Gen. 291 (1914).
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PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD
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.
\679\7 J. Moore, Digest of International Law (Washington: 1906),
346-354.
\680\Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y.
1860).
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``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\
\681\Id., 112.
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[[Page 571]]
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.
\682\See United States Solicitor of the Department of State,
Right to Protect Citizens in Foreign Countries by Landing Forces
(Washington: 3d rev. ed. 1934); M. Offutt, The Protection of Citizens
Abroad by the Armed Forces of the United States (Baltimore: 1928).
\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.
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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
[[Page 572]]
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\
\686\Cf. Metzger, Property in International Law, 50 Va. L. Rev.
594 (1964); Vaughn, Finding the Law of Expropriation: Traditional v.
Quantitative Research, 2 Texas Intl. L. Forum 189 (1966).
\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).
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PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS STEEL SEIZURE CASE
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 ``inher
[[Page 573]]
ent'' executive powers,\696\ but they raise difficult conceptual and
practical problems with regard to presidential powers.
\691\E.O. 10340, 17 Fed. Reg. 3139 (1952).
\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).
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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\
\697\Id., 343 U.S., 585-589.
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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
[[Page 574]]
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\
\698\2 Cr. (6 U.S.) 170 (1804).
\699\1 Stat. 613 (1799).
\700\Little v. Barreme, 2 Cr. (6 U.S.) 170, 177-178 (1804).
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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\
\701\10 Annals of Cong. 596, 613-614 (1800). The argument was
endorsed in Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).
The presence of a treaty, of which this provision was self-executing, is
sufficient to distinguish this example from the steel seizure situation.
\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).
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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-
[[Page 575]]
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\
\704\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593
(1952).
\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.
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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 imme
[[Page 576]]
diately, 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.
\709\Brief for the United States, United States v. Midwest Oil
Co., 236 U.S. 459 (1915), 11, 75-77.
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``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\
\710\Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.
579, 667, 689-691 (1952) (dissenting opinion).
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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\
\711\Id., 585-587.
\712\Id., 597.
\713\Id., 602.
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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,
[[Page 577]]
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.
\714\Id., 635-638.
\715\Id., 639, 640.
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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\
\716\Id., 657.
\717\2 Cr. (6 U.S.) 170 (1804).
\718\Id., 343 U.S., 662, 663.
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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
[[Page 578]]
area here under consideration are cloudy and have remained so from the
time of the decision.\719\
\719\In Dames & Moore v. Regan, 453 U.S. 654, 668-669 (1981),
the Court recurred to the Youngstown analysis for resolution of the
presented questions, but one must observe that it did so saying that
``the parties and the lower courts . . . have all agreed that much
relevant analysis is contained in'' Youngstown. See also id., 661-662,
quoting Justice Jackson's Youngstown concurrence, ``which both parties
agree brings together as much combination of analysis and common sense
as there is in this area''.
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PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION
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.
\720\4 Wall. (71 U.S.) 475 (1867).
\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).
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``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
[[Page 579]]
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\
\723\Id., 499, 500-501. One must be aware that the case was
decided in the context of congressional predominance following the Civil
War. The Court's restraint was pronounced when it denied an effort to
file a bill of injunction to enjoin enforcement of the same acts
directed to cabinet officers. Georgia v. Stanton, 6 Wall. (73 U.S.) 50
(1867). Before and since, however, the device to obtain review of the
President's actions has been to bring suit against the subordinate
officer charged with carrying out the President's wishes. Kendall v.
United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838); Panama
Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process
against the President. In Franklin v. Massachusetts, 112 S.Ct. 2767
(1992), resolving a long-running dispute, the Court held that the
President is not subject to the Administrative Procedure Act and his
actions, therefore, are not reviewable in suits under the Act. Inasmuch
as some agency action, the acts of the Secretary of Commerce in this
case, is preliminary to presidential action, the agency action is not
``final'' for purposes of APA review. Constitutional claims would still
be brought, however.
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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,
[[Page 580]]
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\
\724\United States v. Nixon, 418 U.S. 683 (1974).
\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).
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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
[[Page 581]]
and practical reasons he was not subject to ordinary criminal
process.\730\
\728\The impeachment clause, Article I, Sec. 3, cl. 7, provides
that the party convicted upon impeachment shall nonetheless be liable to
criminal proceedings. Morris in the Convention, 2 M. Farrand, The
Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937),
500, and Hamilton in The Federalist, Nos. 65, 69 (J. Cooke ed., 1961),
442, 463, asserted that criminal trial would follow a successful
impeachment.
\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).
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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
[[Page 582]]
analysis of his actions would bring with it the evil immunity was to
prevent; absolute immunity was required.\738\
\731\Nixon v. Fitzgerald, 457 U.S. 731 (1982).
\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.
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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\
\739\E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) (suit to enjoin Secretary of Commerce to return steel mills
seized on President's order); Dames & Moore v. Regan, 453 U.S. 654
(1981) (suit against Secretary of Treasury to nullify presidential
orders on Iranian assets). See also Noble v. Union River Logging
Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605
(1912).
\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).
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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''
[[Page 583]]
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\
\744\An implied cause of action against officers accused of
constitutional violations was recognized in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz
v. Economou, 438 U.S. 478 (1978), a Bivens action, the Court
distinguished between common-law torts and constitutional torts and
denied high federal officials, including cabinet secretaries, absolute
immunity, in favor of the qualified immunity previously accorded high
state officials under 42 U.S.C. Sec. 1983. In Harlow v. Fitzgerald, 457
U.S. 800 (1982), the Court denied presidential aides derivative absolute
presidential immunity, but it modified the rules of qualified immunity,
making it more difficult to hold such aides, other federal officials,
and indeed state and local officials, liable for constitutional torts.
In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended
qualified immunity to the Attorney General for authorizing a warrantless
wiretap in a case involving domestic national security. Although the
Court later held such warrantless wiretaps violated the Fourth
Amendment, at the time of the Attorney General's authorization this
interpretation was not ``clearly established,'' and the Harlow immunity
protected officials exercising discretion on such open questions. See
also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly
opaque opinion, the Court extended similar qualified immunity to FBI
agents who conducted a warrantless search).
\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).
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SEC. 4--IMPEACHMENT
ARTICLE II
EXECUTIVE DEPARTMENT
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.
IMPEACHMENT\747\
Few provisions of the Constitution were adopted from English
practice to the degree the section on impeachment was. In Eng
[[Page 584]]
land, 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.
\747\Impeachment is the subject of several other provisions of
the Constitution. Article I, Sec. 2, cl. 5, gives to the House of
Representatives ``the sole power of impeachment.'' Article I, Sec. 3,
cl. 6, gives to the Senate ``the sole power to try all impeachments,''
requires that Senators be under oath or affirmation when sitting for
that purpose, stipulates that the Chief Justice of the United States is
to preside when the President of the United States is tried, and
provides for conviction on the vote of two-thirds of the members
present. Article I, Sec. 3, cl. 7, limits the judgment after impeachment
to removal from office and disqualification from future federal office
holding, but it allows criminal trial and conviction following
impeachment. Article II, Sec. 2, cl. 1, deprives the President of the
power to grant pardons or reprieves in cases of impeachment. Article
III, Sec. 2, cl. 3, excepts impeachment cases from the jury trial
requirement.
The word ``impeachment'' may be used to mean several different
things. Any member of the House may ``impeach'' an officer of the United
States by presenting a petition or memorial, which is generally referred
to a committee for investigation and report. The House votes to
``impeach,'' the meaning used in Sec. 4, when it adopts articles of
impeachment. The Senate then conducts a trial on these articles and if
the accused is convicted, he has been ``impeached.'' See 3 A. Hinds'
Precedents of the House of Representatives of the United States
(Washington: 1907), 2469-2485, for the range of forms.
\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).
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Persons Subject to Impeachment
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\
\750\1 Annals of Cong. 457, 473, 536 (1789).
\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.
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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
[[Page 585]]
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
[[Page 586]]
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\
\755\See National Comm. on Judicial Discipline & Removal, Report
of the National Comm. on Judicial Discipline & Removal (1993), 9-11. The
Commission was charged by Congress, P. L. 101-650, 104 Stat. 5124, with
investigating and studying problems and issues relating to discipline
and removal of federal judges, to evaluate the advisability of
developing alternatives to impeachment, and to report to the three
Government Branches. The report and the research papers produced for it
contains a wealth of information on the subject.
\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.
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Impeachable Offenses
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\
\759\1 M. Farrand, op. cit., n.4, 88, 90, 230.
\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.
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[[Page 587]]
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.
\764\Article III, 3.
\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
[[Page 588]]
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\
\772\1 J. Q. Adams, Memoirs (Philadelphia: 1874), 322. See also
3 A. Hinds' Precedents of the House of Representatives of the United
States (Washington: 1907), 739, 753.
\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).
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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
[[Page 589]]
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.
\775\Act of March 2, 1867, 14 Stat. 430.
\776\1 Trial of Andrew Johnson, President of the United States
on Impeachment (Washington: 1868), 88, 147.
\777\Id., 409.
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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.
\778\ten Broek, Partisan Politics and Federal Judgeship
Impeachments Since 1903, 23 Minn. L. Rev. 185 (1939).
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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\
\779\Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as
the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. Rev.
1209, 1229-1233 (1991).
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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\
\780\Analyses of the issue from different points of view are
contained in Impeachment Inquiry Staff, House Judiciary Committee,
Constitutional Grounds for Presidential Impeachments, 93d Congress, 2d
sess. (1974) (Comm. Print); J. St. Clair, et al., Legal Staff of the
President, Analysis of the Constitutional Standard for Presidential
Impeachment (Washington: 1974); Office of Legal Counsel, Department of
Justice, Legal Aspects of Impeachment: An Overview, and Appendix I
(Washington: 1974). And see R. Berger, Impeachment: The Constitutional
Problems (Cambridge: 1973), which preceded the instant controversy. The
House Judiciary Committee recommended three articles of impeachment, for
conduct at least one of which, refusal to honor the Committee's
subpoenas, was not an indictable offense, and a second that mixed
indictable and nonindictable offenses. Impeachment of Richard M. Nixon,
President of the United States, H. Rept. No. 93-1305, 93d Cong., 2d
sess. (1974). Mr. Nixon's resignation of course precluded further action
on the issue, although the articles were submitted to and ``accepted''
by the House of Representatives. 120 Cong. Rec. 29219-29362 (1974).
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[[Page 590]]
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\
\781\The question first arose during the grand jury
investigation of former Vice President Agnew, during which the United
States, through the Solicitor General, argued that the Vice President
and all civil officers were not immune from the judicial process and
that removal need not precede indictment, but as to the President it was
argued that for a number of constitutional and practical reasons the
President was not subject to the ordinary criminal process. Memorandum
for the United States, Application of Spiro T. Agnew, Civil No. 73-965
(D.Md., filed October 5, 1973). Courts have specifically held that a
federal judge is indictable and may be convicted prior to removal from
office. United States v. Claiborne, 727 F.2d 842, 847-848 (9th Cir.),
cert. den., 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d
706, 710-711 (11th Cir.), cert. den., 459 U.S. 1203 (1983); United
States, v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. den. sub nom.,
Kerner v. United States, 417 U.S. 976 (1974).
\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).
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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
[[Page 591]]
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\
\783\Both sought to challenge the use under Rule XI of a trial
committee to hear the evidence and report to the full Senate, which
would then carry out the trial. The rule was adopted in the aftermath of
an embarrassingly sparse attendance at the trial of Judge Louderback in
1935. National Comm. Report, op. cit., n.755, 50-53, 54-57; Grimes, op.
cit., n.779, 1233-1237.
\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.