Article II. Executive Department |
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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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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
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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
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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)).
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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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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.
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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).
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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).
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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).
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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).
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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.
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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.
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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).
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The pre-war actions of Presidents Wilson and Franklin Roosevelt
advanced in substantial degrees the fact of presidential |