409

ARTICLE II

EXECUTIVE DEPARTMENT

CONTENTS

Page

Section 1. The President ........................................................................................................... 413

Clause 1. Powers and Term of the President ................................................................... 413

Nature and Scope of Presidential Power ................................................................... 413

Creation of the Presidency .................................................................................. 413

Executive Power: Theory of the Presidential Office .......................................... 415

Hamilton and Madison ................................................................................. 416

The Myers Case ............................................................................................. 418

The Curtiss-Wright Case .............................................................................. 418

The Youngstown Case ................................................................................... 420

The Practice in the Presidential Office ....................................................... 422

Executive Power: Separation-of-Powers Judicial Protection ............................ 422

Tenure .......................................................................................................................... 425

Clauses 2, 3 and 4. Election .............................................................................................. 426

Electoral College .......................................................................................................... 427

‘‘Appoint’’ ............................................................................................................... 428

State Discretion in Choosing Electors ................................................................ 429

Constitutional Status of Electors ........................................................................ 430

Electors as Free Agents ....................................................................................... 431

Clause 5. Qualifications ..................................................................................................... 433

Clause 6. Presidential Succession ..................................................................................... 435

Clause 7. Compensation and Emoluments ....................................................................... 435

Clause 8. Oath of Office ..................................................................................................... 436

Section 2. Powers and Duties of the President ....................................................................... 436

Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons ............................ 436

Commander-in-Chief ................................................................................................... 437

Development of the Concept ................................................................................ 437

The Limited View ......................................................................................... 437

The Prize Cases ............................................................................................. 438

Impact of the Prize Cases on World Wars I and II .................................... 439

Presidential Theory of the Commander-in-Chiefship in World War II—and Beyond ........................................................................................................................... 440

Presidential War Agencies ........................................................................... 441

Constitutional Status of Presidential Agencies .......................................... 441

Evacuation of the West Coast Japanese ..................................................... 442

Presidential Government of Labor Relations ............................................. 443

Sanctions Implementing Presidential Directives ....................................... 444

The Postwar Period ...................................................................................... 445

The Cold War and After: Presidential Power to Use Troops Overseas Without

Congressional Authorization ................................................................................... 447

The Historic Use of Force Abroad ....................................................................... 448

The Theory of Presidential Power ...................................................................... 450

The Power of Congress to Control the President’s Discretion .......................... 451

The President as Commander of the Armed Forces ................................................. 453
410 ART. II—EXECUTIVE DEPARTMENT

Section 2. Powers and Duties of the President—Continued

Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons—Continued

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
ART. II—EXECUTIVE DEPARTMENT 411

Section 2. Powers and Duties of the President—Continued

Clause 2. Treaties and Appointment of Officers—Continued

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
412 ART. II—EXECUTIVE DEPARTMENT

Section 3. Legislative, Diplomatic, and Law Enforcement Duties of the President—Continued

The President as Law Enforcer—Continued

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
413

1The 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.

EXECUTIVE DEPARTMENT

ARTICLE II

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.

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
414 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cl. 1—Powers and Terms of the President

3 C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 (Baltimore: 1923),

chs. 1–3. 4The 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. 5 Id., 65.

6 Id., 65, 66, 68, 69, 70, 71, 73.

7 Id., 93.

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

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

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.

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
ART. II—EXECUTIVE DEPARTMENT 415

Sec. 1—The President Cl. 1—Powers and Terms of the President

8The last proposal for a council was voted down on September 7. 2 id., 542.

9 Id., 185.

10 Id., 401. 11 Id., 185. 12 Id., 401. 13 Id., 597. 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. 16W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES (New

York: 1908), 202, 205.

in the Senate the power to ‘‘advise and consent’’ with regard to

these matters. 8

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.

Executive Power: Theory of the Presidential Office

The most obvious meaning of the language of Article II, § 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
416 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cl. 1—Powers and Terms of the President

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).

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.

‘‘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-
ART. II—EXECUTIVE DEPARTMENT 417

Sec. 1—The President Cl. 1—Powers and Terms of the President

18 7 WORKS OF ALEXANDER HAMILTON, J. C. Hamilton ed. (New York: 1851), 76,

80–81 (emphasis in original).

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.

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

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
418 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cl. 1—Powers and Terms of the President

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. 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. 6.24Myers 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). 28 299 U.S. 304 (1936). 29 Id., 315–316, 318.

contentiousness still settles upon the reading of the vesting clauses

of Articles I, II, and III. 21

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

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
ART. II—EXECUTIVE DEPARTMENT 419

Sec. 1—The President Cl. 1—Powers and Terms of the President

30 Ibid.

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. . . .

‘‘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

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
420 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cl. 1—Powers and Terms of the President

31Levitan, 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).

35That 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., §§ 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.

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

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-
ART. II—EXECUTIVE DEPARTMENT 421

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36The 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 CurtissWright.

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).

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 commanderin-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
422 ART. II—EXECUTIVE DEPARTMENT

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41Myers 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. 42For 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. 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).

a substantial retreat from the proclamation of vast presidential

powers made in Myers and Curtiss-Wright. 41

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

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
ART. II—EXECUTIVE DEPARTMENT 423

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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. 50Lujan 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. 51Morrison 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 condown 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
424 ART. II—EXECUTIVE DEPARTMENT

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tempt of court actions, rejected the assertion that the judiciary usurped executive

power in appointing such counsel. 52The 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. 55 Id., 462 U.S., 985–86. 56 Id., 462 U.S., 989. 57 Id., 478 U.S., 736, 750.

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-theboard 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

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
ART. II—EXECUTIVE DEPARTMENT 425

Sec. 1—The President Cl. 1—Powers and Terms of the President

58 Id., 462 U.S., 953 n. 16. 59 Id. 60Pub. 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. §§ 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).

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.

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

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
426 ART. II—EXECUTIVE DEPARTMENT

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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). 63 E. CORWIN, op. cit., n. 44, 34–38, 331–339.

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

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

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-
ART. II—EXECUTIVE DEPARTMENT 427

Sec. 1—The President Cls. 2–4—Election

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
428 ART. II—EXECUTIVE DEPARTMENT

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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. 66See 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 VicePresident. 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. 67McPherson v. Blacker, 146 U.S. 1, 27 (1892).

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.

‘‘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
ART. II—EXECUTIVE DEPARTMENT 429

Sec. 1—The President Cls. 2–4—Election

68 Id., 28–29. 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)). 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, § 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).

division of their strength, and that a uniform rule was preferable.’’ 68

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

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
430 ART. II—EXECUTIVE DEPARTMENT

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75The 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). 76The 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, § 5. 79 In re Green, 134 U.S. 377, 379–380 (1890). 80 United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868). 81 Hawke v. Smith, 253 U.S. 221 (1920).

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.

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.

This function is, moreover, ‘‘a federal function,’’ 81 their capacity to perform which results from no power which was originally
ART. II—EXECUTIVE DEPARTMENT 431

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

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).

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.

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

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).

resident in the States but which springs directly from the Constitution of the United States. 82

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.

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

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
432 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cls. 2–4—Election

89 Congress has so provided in the case of electors of the District of Columbia,

75 Stat. 818 (1961), D.C. Code § 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).

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:

‘‘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,

§ 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-
ART. II—EXECUTIVE DEPARTMENT 433

Sec. 1—The President Cl. 5—Qualifications

92 Id., 228–231. 93 Id., 232–233.

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, § 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

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-
434 ART. II—EXECUTIVE DEPARTMENT

Sec. 1—The President Cl. 5—Qualifications

94 8 U.S.C. § 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, § 3 (1709); 4 Geo. 2, ch. 21 (1731). 98See, e.g., Gordon,Who Can Be President of the United States: The Unresolved

Enigma, 28 Md. L. Rev. 1 (1968).

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.
ART. II—EXECUTIVE DEPARTMENT 435

Sec. 1—The President Cls. 7–8—Compensation, Oath

99 E. CORWIN, op. cit., n. 44, 53–59, 344 n. 46. 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

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 § 1 of

the Twenty-fifth Amendment. That Amendment as well settles a

number of other pressing questions with regard to presidential inability and succession.

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
436 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

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. 101 Act of March 1, 1792, 1 Stat. 239, § 12. 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.

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.

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.

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-
ART. II—EXECUTIVE DEPARTMENT 437

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

105May, 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. 106THE FEDERALIST, No. 69 (J. Cooke ed., 1961), 465.

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.

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-
438 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

107 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1486. 108Fleming v. Page, 9 How. (50 U.S.) 603, 615, 618 (1850). 109 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866). 110 1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. §§ 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.

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.

‘‘. . . 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

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-
ART. II—EXECUTIVE DEPARTMENT 439

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

114 Id., 2 Bl. (67 U.S.), 668–670.

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.’

‘‘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

Impact of the Prize Cases on World Wars I and II.—In

brief, the powers claimable for the President under the Com-
440 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

115See 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. 119 56 Stat. 23 (1942).

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

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:

‘‘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-
ART. II—EXECUTIVE DEPARTMENT 441

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

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. 121For 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. 122 143 F.2d 145 (D.C.Cir. 1944).

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

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

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
442 ART. II—EXECUTIVE DEPARTMENT

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123 Id., 149. 124 E. CORWIN, op. cit., n. 42, 244, 245, 459. 125 E.O. 9066, 7 FED. REG. 1407 (1942). 126 56 Stat. 173 (1942).

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

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.

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
ART. II—EXECUTIVE DEPARTMENT 443

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

127 Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943). 128Korematsu 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. § 1989 et seq. Reparations were approved, and each living survivor of the internment was to be compensated in an amount roughly approximating $20,000. 129 E.O. 8773, 6 FED. REG. 2777 (1941). 130 E. CORWIN, TOTAL WAR AND THE CONSTITUTION (New York: 1946), 47–48.

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

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
444 ART. II—EXECUTIVE DEPARTMENT

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131 7 FED. REG. 237 (1942). 132 57 Stat. 163 (1943). 133See Vanderbilt, War Powers and their Administration, 1945 Annual Survey

of American Law (N.Y. Univ.), 254, 271–273. 134 E.O. 9370, 8 FED. REG. 11463 (1943). 135 56 Stat. 23 (1942). 136 322 U.S. 398 (1944).

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

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

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.

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
ART. II—EXECUTIVE DEPARTMENT 445

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137 Id., 404–405. 138 E. CORWIN, op. cit., n. 44, 249–250. 139Proc. 2714, 12 FED. REG. 1 (1947). 140S.J. Res. 123, 61 Stat. 449 (1947). 141Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948). 142 61 Stat. 193 (1947). 143 62 Stat. 604 (1948).

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

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.

Congress thereafter enacted a new Housing and Rent Act to

continue the controls begun in 1942 142 and continued the draft. 143
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144Defense 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). 150See 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).

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.

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

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
ART. II—EXECUTIVE DEPARTMENT 447

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152 § 301(1), 55 Stat. 838, 839–840 (1941). 153 91 Stat. 1626, 50 U.S.C. §§ 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. §1701. 155P. L. 94–412, 90 Stat. 1255 (1976). 156See 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).

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.

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-
448 ART. II—EXECUTIVE DEPARTMENT

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157See under Article I, § 8, cls. 11–14. 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. 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

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.

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

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-
ART. II—EXECUTIVE DEPARTMENT 449

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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. 161War 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. 162Of 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).

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

The pre-war actions of Presidents Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact
450 ART. II—EXECUTIVE DEPARTMENT

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163For some popular defenses of presidential power during the ‘‘Great Debate,’’

see Corwin, Who Has the Power to Make War? New York Times Magazine (July 31,

1949), 11; Commager, Presidential Power: The Issue Analyzed, New York Times

Magazine (January 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis

for the President’s Action in Using Armed Forces to Repel the Invasion of South

Korea, 96 CONG. REC. 9647 (1950). President Truman and Secretary Acheson utilized the argument from the U. N. Charter in defending the United States actions

in Korea, and the Charter defense has been made much of since. See, e.g.,

Stromseth, Rethinking War Powers: Congress, the President, and the United Nations,

81 Geo. L. J. 597 (1993). 164 Assignment of Ground Forces of the United States to Duty in the European

Area, Hearings before the Senate Foreign Relations and Armed Services Committees, 82d Congress, 1st sess. (1951), 92.

until the ‘‘Great Debate’’ over the commitment of troops by the

United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the

United Nations charter, and the debate over Article 5 of the North

Atlantic Treaty of 1949, declaring that ‘‘armed attack’’ against one

signatory was to be considered as ‘‘an attack’’ against all signatories, provided for the occasion of the formulation of a theory of

independent presidential power to use the armed forces in the national interest at his discretion. 163 Thus, Secretary of State Acheson told Congress: ‘‘Not only has the President the authority to

use the armed forces in carrying out the broad foreign policy of the

United States implementing treaties, but it is equally clear that

this authority may not be interfered with by the Congress in the

exercise of powers which it has under the Constitution.’’ 164

The Theory of Presidential Power.—The fullest expression

of the presidential power proponents has been in defense of the

course followed in Indochina. Thus, the Legal Adviser of the State

Department, in a widely circulated document, contended: ‘‘Under

the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the

prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power

to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States. . . .

‘‘In 1787 the world was a far larger place, and the framers

probably had in mind attacks upon the United States. In the 20th

century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation’s security. In the SEATO treaty, for example, it is formally declared that

an armed attack against Viet Nam would endanger the peace and

security of the United States.
ART. II—EXECUTIVE DEPARTMENT 451

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165Meeker, The Legality of United States Participation in the Defense of Viet

Nam, 54 Dept. State Bull. 474, 484–485 (1966). See also Moore, The National Executive and the Use of the Armed Forces Abroad, 21 Naval War College Rev. 28 (1969);

Wright, The Power of the Executive to Use Military Forces Abroad, 10 Va. J. Int.

L. 43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander-in-Chief and the War in Indochina, Senate Committee on

Foreign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under Secretary

of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120

(Professor Moore), 175 (Assistant Attorney General Rehnquist). 166 E.g., F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR: THE WAR

POWER OF CONGRESS IN HISTORY AND LAW (New York: 1986); J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (Princeton: 1993); U.S. Commitments to Foreign Powers, Hearings before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 9 (Professor Bartlett);

War Powers Legislation, Hearings before the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971), 7 (Professor Commager), 75 (Professor Morris),

251 (Professor Mason). 167P.L. 93–148, 87 Stat. 555, 50 U.S.C. §§ 1541–1548. For the congressional intent and explanation, see H. Rept. No. 93–287, S. Rept. No. 93–220, and H. Rept.

No. 93–547 (Conference Report), all 93d Congress, 1st sess. (1973). The President’s

veto message is H. Doc. No. 93–171, 93d Congress. 1st sess. (1973). All this material

is collected in The War Powers Resolution—Relevant Documents, Reports, Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d sess. (Comm.

Print) (GPO: 1994), 1–46. For a narrative account of passage and an assessment of

the disputed compliance to date, from the congressional point of view, see The War

Powers Resolution, A Special Study of the House Committee on Foreign Affairs,

102d Cong., 2d sess. (Comm. Print) (GPO: 1982).

‘‘Under our Constitution it is the President who must decide

when an armed attack has occurred. He has also the constitutional

responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet

Nam is required, and that military measures against the source of

Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.’’ 165

Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided

between the Executive and Congress but was vested exclusively in

Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander-in-Chief he was empowered to direct the armed forces for

any purpose specified by Congress. 166 Though Congress asserted

itself in some respects, it never really managed to confront the

President’s power with any sort of effective limitation, until recently.

The Power of Congress to Control the President’s Discretion.—Over the President’s veto, Congress enacted the War Powers

Resolution, 167 designed to redistribute the war powers between the

President and Congress. Although ambiguous in some respects, the

Resolution appears to define restrictively the President’s powers, to
452 ART. II—EXECUTIVE DEPARTMENT

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168 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c). 169 Id., § 1543(a). 170 Id., § 1544(b). 171 Id., § 1544(c). It is the general consensus that, following INS v. Chadha, 462

U.S. 919 (1983), this provision of the Resolution is unconstitutional. 172 Id., 50 U.S.C. § 1547(a).

require him to report fully to Congress upon the introduction of

troops into foreign areas, to specify a maximum time limitation on

the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of

hostilities in advance of the time set. The Resolution states that

the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is

limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its

armed forces. 168 In the absence of a declaration of war, a President

must within 48 hours report to Congress whenever he introduces

troops (1) into hostilities or situations of imminent hostilities, (2)

into a foreign nation while equipped for combat, except in certain

nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in

a foreign nation. 169 The President is required to terminate the use

of troops in the reported situation within 60 days of reporting, unless Congress (1) has declared war, (2) has extended the period, or

(3) is unable to meet as a result of an attack on the United States,

but the period can be extended another 30 days by the President’s

certification to Congress of unavoidable military necessity respecting the safety of the troops. 170 Congress may through the passage

of a concurrent resolution require the President to remove the

troops sooner. 171 The Resolution further states that no legislation,

whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad

unless the legislation specifically does so and that no treaty may

so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue. 172

Aside from its use as a rhetorical device, the Resolution has

been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating

under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so ‘‘consistent[ly] with’’ the reporting sec-
ART. II—EXECUTIVE DEPARTMENT 453

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173See the text of the reports in The War Powers Resolution—Relevant Documents, Reports, Correspondence, op. cit., n. 167, 47 (Pres. Ford on transport of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73

(Pres. Reagan on use of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144

(Pres. Bush on Panama), 147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush

on Somalia), 262 (Pres. Clinton on Haiti). 174See Hearings on Crisis in the Persian Gulf Region: U. S. Policy Options and

Implications, Senate Committee on Armed Services, 101st Cong., 2d sess. (1990),

701 (Secretary Chaney) (President did not require ‘‘any additional authorization

from the Congress’’ before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the

requested action, stated: ‘‘I don’t think I need it. . . . I feel that I have the authority

to fully implement the United Nations resolutions.’’ 27 WKLY. COMP. PRES. DOC. 25

(Jan. 8, 1991). 175P. L. 102–1, 105 Stat. 3. 176See, on proposals to amend and on congressional responsibility, J. ELY, WAR

AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH

(Princeton: 1993). 177For a review of how several wartime Presidents have operated in this

sphere, see E. MAY (ed.), THE ULTIMATE DECISION—THE PRESIDENT AS COMMANDER

IN CHIEF (New York: 1960).

tion but not pursuant to the provision. 173 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the

last moment did the President seek authorization from Congress,

he and his officials contending he had the power to act unilaterally. 174 Congress after intensive debate voted, 250 to 183 in the

House of Representatives and 53 to 46 in the Senate, to authorize

the President to use United States troops pursuant to the U. N.

resolution and purporting to bring the act within the context of the

War Powers Resolution. 175

Although there is recurrent talk within Congress and without

with regard to amending the War Powers Resolution to strengthen

it, no consensus has emerged, and there is little evidence that there

exists within Congress the resolve to exercise the responsibility

concomitant with strengthening it. 176

The President as Commander of the Armed Forces

While the President customarily delegates supreme command

of the forces in active service, there is no constitutional reason why

he should do so, and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued

orders for a general advance in the hopes of stimulating McClellan

to action; Wilson in 1918 settled the question of an independent

American command on the Western Front; Truman in 1945 ordered

that the bomb be dropped on Hiroshima and Nagasaki. 177 As

against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme com-
454 ART. II—EXECUTIVE DEPARTMENT

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178Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850). 179Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v.

Eisentrager, 339 U.S. 763, 789 (1950). 180Totten v. United States, 92 U.S. 105 (1876). 181 Hamilton v. Dillin, 21 Wall. (88 U.S.) 73 (1875); Haver v. Yaker, 9 Wall. (76

U.S.) 32 (1869). 182Mitchell v. Harmony, 13 How. (54 U.S.) 115 (1852); United States v. Russell,

13 Wall. (80 U.S.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops.

Atty. Gen. 250, 253 (1942). 183 Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace

of Paris, 30 Stat. 1742 and President Wilson’s Fourteen Points, which were incorporated in the Armistice of November 11, 1918. 184Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850). 185Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230–231 (1901). 186Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See

also Givens v. Zerbst, 255 U.S. 11 (1921). 187 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary

view is stated by Attorney General Wirt. 188 Ex parte Quirin, 317 U.S. 1, 28–29 (1942).

mander. ‘‘He may invade the hostile country, and subject it to the

sovereignty and authority of the United States.’’ 178 In the absence

of attempts by Congress to limit his power, he may establish and

prescribe the jurisdiction and procedure of military commissions,

and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to

do this sometimes survives cessation of hostilities. 179 He may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. 180 He may, at

least with the assent of Congress, authorize intercourse with the

enemy. 181 He may also requisition property and compel services

from American citizens and friendly aliens who are situated within

the theatre of military operations when necessity requires, thereby

incurring for the United States the obligation to render ‘‘just compensation.’’ 182 By the same warrant, he may bring hostilities to a

conclusion by arranging an armistice, stipulating conditions which

may determine to a great extent the ensuing peace. 183 He may not,

however, affect a permanent acquisition of territory, 184 though he

may govern recently acquired territory until Congress sets up a

more permanent regime. 185

He is the ultimate tribunal for the enforcement of the rules

and regulations which Congress adopts for the government of the

forces, and which are enforced through courts-martial. 186 Indeed,

until 1830, courts-martial were convened solely on his authority as

Commander-in-Chief. 187 Such rules and regulations are, moreover,

it would seem, subject in wartime to his amendment at discretion. 188 Similarly, the power of Congress to ‘‘make rules for the

government and regulation of the land and naval forces’’ (Art. I,

§ 8, cl. 14) did not prevent President Lincoln from promulgating in
ART. II—EXECUTIVE DEPARTMENT 455

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

189General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III;

April 24, 1863. 190See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States

v. Corson, 114 U.S. 619 (1885). 191 10 U.S.C. § 804. 192Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257

U.S. 541 (1922).

April, 1863, a code of rules to govern the conduct in the field of the

armies of the United States which was prepared at his instance by

a commission headed by Francis Lieber and which later became the

basis of all similar codifications both here and abroad. 189 One important power he lacks, that of choosing his subordinates, whose

grades and qualifications are determined by Congress and whose

appointment is ordinarily made by and with the advice and consent

of the Senate, though undoubtedly Congress could if it wished vest

their appointment in ‘‘the President alone.’’ 190 Also, the President’s

power to dismiss an officer from the service, once unlimited, is

today confined by statute in time of peace to dismissal ‘‘in pursuance of the sentence of a general court-martial or in mitigation

thereof.’’ 191 But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or

Navy by appointing with the advice and consent of the Senate another person in his place. 192 The President’s power of dismissal in

time of war Congress has never attempted to limit.

The Commander-in-Chief a Civilian Officer.—Is the Commander-in-Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. An opinion by

a New York surrogate deals adequately, though not authoritatively,

with the subject: ‘‘The President receives his compensation for his

services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid

from sums appropriated for the military or naval forces; and it is

equally clear under the Constitution that the President’s duties as

Commander in Chief represents only a part of duties ex officio as

Chief Executive [Article II, sections 2 and 3 of the Constitution]

and that the latter’s office is a civil office. [Article II, section 1 of

the Constitution; vol. 91, Cong. Rec. 4910–4916; Beard, The Republic (1943) pp. 100–103.] The President does not enlist in, and he is

not inducted or drafted into, the armed forces. Nor, is he subject

to court-martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that ‘The President,

[Vice President] and All Civil Officers of the United States shall be

removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.’ . . . The last

two War Presidents, President Wilson and President Roosevelt,
456 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

193Surrogate’s Court, Duchess County, New York, ruling July 25, 1950, that the

estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421

and 939 of the Internal Revenue Code, which extends certain tax benefits to persons

dying in the military services of the United States. New York Times, July 26, 1950,

p. 27, col. 1. 194 C. FAIRMAN, THE LAW OF MARTIAL RULE (Chicago: 1930), 20–22; A. DICEY,

INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (New York: 5th ed.

1923), 283, 290. 195 Id., 539–544. 196 7 How. (48 U.S.) 1 (1849). See also Martin v. Mott, 12 Wheat. (25 U.S.) 19,

32–33 (1827). 197 7 How. (48 U.S.), 45. 198 2 Bl. (67 U.S.) 635 (1863).

both clearly recognized the civilian nature of the President’s position as Commander in Chief. President Roosevelt, in his Navy Day

Campaign speech at Shibe Park, Philadelphia, on October 27, 1944,

pronounced this principle as follows:—‘It was due to no accident

and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty

of the Commander in Chief to appoint the Secretaries of War and

Navy and the Chiefs of Staff.’ It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to

be merely a civilian officer, not in military service. (United States

v. Burns, 79 U.S. 246 (1871)). On the general principle of civilian

supremacy over the military, by virtue of the Constitution, it has

recently been said: ‘The supremacy of the civil over the military is

one of our great heritages.’ Duncan v. Kahanamoku, 324 U.S. 833

(1945), 14 L.W. 4205 at page 4210.’’ 193

Martial Law and Constitutional Limitations

Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right,

1628, provides that the common law knows no such thing as martial law; 194 that is to say, martial law is not established by official

authority of any sort, but arises from the nature of things, being

the law of paramount necessity, leaving the civil courts to be the

final judges of necessity. 195 By the second theory, martial law can

be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the

American judiciary embraced the latter theory as it held in Luther

v. Borden 196 that state declarations of martial law were conclusive

and therefore not subject to judicial review. 197 In this case, the

Court found that the Rhode Island legislature had been within its

rights in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases, 198 while
ART. II—EXECUTIVE DEPARTMENT 457

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

199 Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866). 200 Id., 127.

not dealing directly with the subject of martial law, gave national

scope to the same general principle in 1863.

The Civil War being safely over, however, a divided Court, in

the elaborately argued Milligan case, 199 reverting to the older doctrine, pronounced void President Lincoln’s action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as

‘‘spies’’ and ‘‘abettors of the enemy.’’ The salient passage of the

Court’s opinion bearing on this point is the following: ‘‘If, in foreign

invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the

theatre of active military operations, where war really prevails,

there is a necessity to furnish a substitute for the civil authority,

thus overthrown, to preserve the safety of the army and society;

and as no power is left but the military, it is allowed to govern by

martial rule until the laws can have their free course. As necessity

creates the rule, so it limits its duration; for, if this government is

continued after the courts are reinstated, it is a gross usurpation

of power. Martial rule can never exist where the courts are open,

and in proper and unobstructed exercise of their jurisdiction. It is

also confined to the locality of actual war.’’ 200 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have

been void because violative of the Act of March 3, 1863, governing

the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could

have authorized Milligan’s trial. Said the Chief Justice: ‘‘Congress

has the power not only to raise and support and govern armies but

to declare war. It has, therefore, the power to provide by law for

carrying on war. This power necessarily extends to all legislation

essential to the prosecution of war with vigor and success, except

such as interferes with the command of the forces and the conduct

of campaigns. That power and duty belong to the President and

Commander-in-Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent

must be determined by their nature, and by the principles of our

institutions.

‘‘. . . We by no means assert that Congress can establish and

apply the laws of war where no war has been declared or exists.

‘‘Where peace exists the laws of peace must prevail. What we

do maintain is, that when the nation is involved in war, and some

portions of the country are invaded, and all are exposed to inva-
458 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

201 Id., 139–140. In Ex parte Vallandigham, 1 Wall. (68 U.S.) 243 (1864), the

Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the

Army, commanding a military department. 202 212 U.S. 78 (1909). 203 Id., 83–85. 204 287 U.S. 378 (1932). ‘‘The nature of the power also necessarily implies that

there is a permitted range of honest judgment as to the measures to be taken in

meeting force with force, in suppressing violence and restoring order, for without

such liberty to make immediate decision, the power itself would be useless. Such

measures, conceived in good faith, in the face of the emergency and directly related

to the quelling of the disorder or the prevention of its continuance, fall within the

discretion of the Executive in the exercise of his authority to maintain peace’’ Id.,

399–400. 205 Id., 400–401. This holding has been ignored by States on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v.

Calus, 178 S.C. 381, 183 S.E. 13 (1935); and Joyner v. Browning, 30 F. Supp. 512

(D.C.W.D. Tenn. 1939).

sion, it is within the power of Congress to determine in what States

or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes

and offenses against the discipline or security of the army or

against the public safety.’’ 201 In short, only Congress can authorize

the substitution of military tribunals for civil tribunals for the trial

of offenses; and Congress can do so only in wartime.

At the turn of the century, however, the Court appears to have

retreated from its stand in Milligan insofar as it held in Moyer v.

Peabody 202 that ‘‘the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff’s position

is that he has been deprived of his liberty without due process of

law. But it is familiar that what is due process of law depends on

circumstances. . . . So long as such arrests are made in good faith

and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he

had not reasonable ground for his belief.’’ 203 The ‘‘good faith’’ test

of Moyer, however, was superseded by the ‘‘direct relation’’ test of

Sterling v. Constantin, 204 where the Court made it very clear that

‘‘[i]t does not follow . . . that every sort of action the Governor may

take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is

conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have

been overstepped in a particular case, are judicial questions.’’ 205

Martial Law in Hawaii.—The question of the constitutional

status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941,

suspending the writ of habeas corpus and conferring on the local
ART. II—EXECUTIVE DEPARTMENT 459

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

206 31 Stat. 141, 153 (1900). 207Duncan v. Kahanamoku, 327 U.S. 304 (1946). 208 Id., 324. 209 Id., 336. 210 Id., 343.

commanding General of the Army all his own powers as governor

and also ‘‘all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and

until the danger of invasion is removed.’’ Two days later the Governor’s action was approved by President Roosevelt. The regime

which the proclamation set up continued with certain abatements

until October 24, 1944.

By section 67 of the Organic Act of April 30, 1900, 206 the Territorial Governor was authorized ‘‘in case of rebellion or invasion,

or imminent danger thereof, when the public safety requires it, [to]

suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication

can be had with the President and his decision thereon made

known.’’ By section 5 of the Organic Act, ‘‘the Constitution . . .

shall have the same force and effect within the said Territory as

elsewhere in the United States.’’ In a brace of cases which reached

it in February 1945, but which it contrived to postpone deciding till

February 1946, 207 the Court, speaking by Justice Black, held that

the term ‘‘martial law’’ as employed in the Organic Act, ‘‘while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not

intended to authorize the supplanting of courts by military tribunals.’’ 208

The Court relied on the majority opinion in Ex parte Milligan.

Chief Justice Stone concurred in the result. ‘‘I assume also,’’ he

said, ‘‘that there could be circumstances in which the public safety

requires, and the Constitution permits, substitution of trials by

military tribunals for trials in the civil courts,’’ 209 but added that

the military authorities themselves had failed to show justifying

facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii

as a military outpost and its constant exposure to the danger of

fresh invasion. He warned that ‘‘courts must guard themselves

with special care against judging past military action too closely by

the inapplicable standards of judicial, or even military, hindsight.’’ 210

Articles of War: The Nazi Saboteurs.—The saboteurs were

eight youths, seven Germans and one an American, who, following
460 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

211 Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942). 212 Id., 41–42. 213 Id., 28–29.

a course of training in sabotage in Berlin, were brought to this

country in June 1942 aboard two German submarines and put

ashore, one group on the Florida coast, the other on Long Island,

with the idea that they would proceed forthwith to practice their

art on American factories, military equipment, and installations.

Making their way inland, the saboteurs were soon picked up by the

FBI, some in New York, others in Chicago, and turned over to the

Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of

the laws of war, to wit: for not wearing fixed emblems to indicate

their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for

the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense

charged against them was not known to the laws of the United

States; (2) that it was not one arising in the land and naval forces;

and (3) that the tribunal trying them had not been constituted in

accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses

against the law of war is sufficiently definite, although Congress

has not undertaken to codify or mark the precise boundaries of the

law of war, or to enumerate or define by statute all the acts which

that law condemns. ‘‘. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United

States], discarding their uniforms upon entry, for the commission

of hostile acts involving destruction of life or property, have the

status of unlawful combatants punishable as such by military commission.’’ 211 The second argument it disposed of by showing that

petitioners’ case was of a kind that was never deemed to be within

the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre. 212 The third contention the Court overruled by declining to draw the line between the

powers of Congress and the President in the premises, 213 thereby,

in effect, attributing to the latter the right to amend the Articles

of War in a case of the kind before the Court ad libitum.

The decision might well have rested on the ground that the

Constitution is without restrictive force in wartime in a situation

of this sort. The saboteurs were invaders; their penetration of the

boundary of the country, projected from units of a hostile fleet, was

essentially a military operation, their capture was a continuation
ART. II—EXECUTIVE DEPARTMENT 461

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

214 In re Yamashita, 327 U.S. 1 (1946). 215 Id., 81. 216See Gross, The Criminality of Aggressive War, 41 Am. Pol. Sci. Rev. 205

(1947). 217 United States Adjutant-General, Federal Aid in Domestic Disturbances 1787–

1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903); Pollitt, Presidential Use of

Troops to Enforce Federal Laws: A Brief History, 36 N.C. L. Rev. 117 (1958). United

States Marshals were also used on approximately 30 occasions. United States Commission on Civil Rights, Law Enforcement—A Report on Equal Protection in the

South (Washington: 1965), 155–159.

of that operation. Punishment of the saboteurs was therefore within the President’s purely martial powers as Commander-in-Chief.

Moreover, seven of the petitioners were enemy aliens, and so,

strictly speaking, without constitutional status. Even had they

been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes

to restraint and other disciplinary action by the President without

appeals to the courts.

Articles of War: World War II Crimes.—As a matter of fact,

in General Yamashita’s case, 214 which was brought after the termination of hostilities for alleged ‘‘war crimes,’’ the Court abandoned its restrictive conception altogether. In the words of Justice

Rutledge’s dissenting opinion in this case: ‘‘The difference between

the Court’s view of this proceeding and my own comes down in the

end to the view, on the one hand, that there is no law restrictive

upon these proceedings other than whatever rules and regulations

may be prescribed for their government by the executive authority

or the military and, on the other hand, that the provisions of the

Articles of War, of the Geneva Convention and the Fifth Amendment apply.’’ 215 And the adherence of the United States to the

Charter of London in August 1945, under which the Nazi leaders

were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war,

which at the time of its commission was not a crime either under

international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor does international law forbid ex

post facto laws. 216

Martial Law and Domestic Disorder.—President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called

into federal service were required. 217 Since World War II, however,

the President, by virtue of his own powers and the authority vested
462 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

218 10 U.S.C. §§ 331–334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424

1861, 12 Stat. 281, and 1871 17 Stat. 14. 219The other instances were in domestic disturbances at the request of state

Governors. 220Proc. No. 3204, 22 FED. REG. 7628 (1957); E.O. 10730, 22 FED. REG. 7628.

See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. Aaron, 358 U.S. 1 (1958);

Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark. 1959), affd. sub nom. Faubus v.

Aaron, 361 U.S. 197 (1959); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958),

cert. den. 358 U.S. 829 (1958). 221Proc. No. 3497, 27 FED. REG. 9681 (1962); E.O. 11053, 27 FED. REG. 9693

(1962). See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965). 222Proc. 3542, 28 FED. REG. 5707 (1963); E.O. 11111, 28 FED. REG. 5709 (1963);

Proc. No. 3554, 28 FED. REG. 9861; E.O. 11118, 28 FED. REG. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963). 223Proc. No. 3645, 30 FED. REG. 3739 (1965); E.O. 11207, 30 FED. REG. 2743

(1965). See Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965). 224 Ibid. 225 1 M. FARRAND, op. cit., n. 4, 70, 97, 110; 2 id., 285, 328, 335–337, 367, 537–

542. Debate on the issue in the Convention is reviewed in C. THACH, THE CREATION

OF THE PRESIDENCY 1775–1789 (Baltimore: 1923), 82, 83, 84, 85, 109, 126.

in him by Congress, 218 has utilized federal troops on nine occasions, five of them involving resistance to desegregation decrees in

the South. 219 In 1957, Governor Faubus employed the Arkansas

National Guard to resist court-ordered desegregation in Little

Rock, and President Eisenhower dispatched federal soldiers and

brought the Guard under federal authority. 220 In 1962, President

Kennedy dispatched federal troops to Oxford, Mississippi, when

upon the admission of an African American student to the University of Mississippi rioting broke out, with which federal marshals

originally assigned could not cope. 221 In June and September of

1964, President Johnson sent troops into Alabama to enforce court

decrees opening schools to blacks. 222 And in 1965, the President

used federal troops and federalized local Guardsmen to protect participants in a civil rights march. 223 The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing the marchers protection. 224

PRESIDENTIAL ADVISERS

The Cabinet

The above provisions are the meager residue from a persistent

effort in the Federal Convention to impose a council on the President. 225 The idea ultimately failed, partly because of the diversity

of ideas concerning the council’s make-up. One member wished it

to consist of ‘‘members of the two houses,’’ another wished it to

comprise two representatives from each of three sections, ‘‘with a

rotation and duration of office similar to those of the Senate.’’ The

proposal which had the strongest backing was that it should con-
ART. II—EXECUTIVE DEPARTMENT 463

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

226 E. CORWIN, op. cit., n. 44, 82. 227L. WHITE, THE FEDERALISTS—A STUDY IN ADMINISTRATIVE HISTORY (New

York: 1948), ch. 4. 228 E. CORWIN, op. cit., n. 44, 19, 61, 79–85, 211, 295–299, 312, 320–323, 490–

493.229 United States v. Wilson, 7 Pet. (32 U.S.) 150, 160–161 (1833). 230 236 U.S. 79, 86 (1915).

sist of the head of departments and the Chief Justice of the Supreme Court, who should preside when the President was absent.

Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely

one-sided affair, is to be conducted with each principal officer separately and in writing, and is to relate only to the duties of their

respective offices. 226 The Cabinet, as we know it today, that is to

say, the Cabinet meeting, was brought about solely on the initiative

of the first President, 227 and may be dispensed with on presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet

meeting to little more than a ceremony with social trimmings. 228

PARDONS AND REPRIEVES

The Legal Nature of a Pardon

In the first case to be decided concerning the pardoning power,

Chief Justice Marshall, speaking for the Court, said: ‘‘As this power

had been exercised from time immemorial by the executive of that

nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their

books for the rules prescribing the manner in which it is to be used

by the person who would avail himself of it. A pardon is an act of

grace, proceeding from the power entrusted with the execution of

the laws, which exempts the individual, on whom it is bestowed,

from the punishment the law inflicts for a crime he has committed.

It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not

communicated officially to the Court. . . . A pardon is a deed, to

the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to

whom it is tendered; and if it be rejected, we have discovered no

power in a court to force it on him.’’ Marshall continued to hold

that to be noticed judicially this deed must be pleaded, like any private instrument. 229

In the case of Burdick v. United States, 230 Marshall’s doctrine

was put to a test that seems to have overtaxed it, perhaps fatally.
464 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 1—Commander-in-Chief

231 Id., 90–91. 232 Armstrong v. United States, 13 Wall. (80 U.S.), 154, 156 (1872). In Brown

v. Walker, 161 U.S. 591 (1896), the Court had said: ‘‘It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon,

he cannot longer set up his privilege, since he stands with respect to such offence

as if it had never been committed.’’ Id., 599, citing British cases. 233 Biddle v. Perovich, 274 U.S. 480, 486 (1927). 234 Cf. W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT (Washington:

1941), 73. 235 Biddle v. Perovich, 274 U.S. 480, 486 (1927). In Schick v. Reed, 419 U.S. 256

(1976), the Court upheld the presidential commutation of a death sentence to imprisonment for life with no possibility of parole, the foreclosure of parole being contrary to the scheme of the Code of Military Justice. ‘‘The conclusion is inescapable

that the pardoning power was intended to include the power to commute sentences

on conditions which do not in themselves offend the Constitution, but which are not

specifically provided for by statute.’’ Id., 264.

Burdick, having declined to testify before a federal grand jury on

the ground that his testimony would tend to incriminate him, was

proffered by President Wilson ‘‘a full and unconditional pardon for

all offenses against the United States,’’ which he might have committed or participated in in connection with the matter he had

been questioned about. Burdick, nevertheless, refused to accept the

pardon and persisted in his contumacy with the unanimous support

of the Supreme Court. ‘‘The grace of a pardon,’’ remarked Justice

McKenna sententiously, ‘‘may be only a pretense . . . involving consequences of even greater disgrace than those from which it

purports to relieve. Circumstances may be made to bring innocence

under the penalties of the law. If so brought, escape by confession

of guilt implied in the acceptance of a pardon may be rejected.

. . .’’ 231 Nor did the Court give any attention to the fact that the

President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President

Johnson’s amnesties to the Court’s notice. 232 In 1927, however, in

sustaining the right of the President to commute a sentence of

death to one of life imprisonment, against the will of the prisoner,

the Court abandoned this view. ‘‘A pardon in our days,’’ it said, ‘‘is

not a private act of grace from an individual happening to possess

power. It is a part of the constitutional scheme. When granted it

is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment

fixed.’’ 233 Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful. 234 They seem clearly to indicate

that by substituting a commutation order for a deed of pardon, a

President can always have his way in such matters, provided the

substituted penalty is authorized by law and does not in common

understanding exceed the original penalty. 235
ART. II—EXECUTIVE DEPARTMENT 465

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236 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Central Railroad v. Bosworth,

133 U.S. 92 (1890). 237 Ex parte William Wells, 18 How. (59 U.S.) 307 (1856). For the contrary view,

see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2

Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458

(1845); United States v. Wilson, 7 Pet. (32 U.S.) 150, 161 (1833). 238 Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, within the same term of court, by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement

of the pardoning power. United States v. Benz, 282 U.S. 304 (1931). 239See 1 J. RICHARDSON, op. cit., n. 42, 173, 293; 2 id., 543; 7 id., 3414, 3508;

8 id., 3853; 14 id., 6690. 240 United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872). See also United

States v. Padelford, 9 Wall. (76 U.S.) 531 (1870). 241 Ex parte Garland, 4 Wall. (71 U.S.) 333, 380 (1867). 242F. MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND (London: 1920), 302–

306; 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation

of the commission of the offense. A pardon may precede the indictment or other beginning of the criminal proceeding, Ex parte Garland, 4 Wall. (71 U.S.) 333, 380

(1867), as indeed President Ford’s pardon of former President Nixon preceded institution of any action. On the Nixon pardon controversy, see Pardon of Richard M.

Nixon and Related Matters, Hearings before the House Judiciary Subcommittee on

Criminal Justice, 93d Congress 2d sess. (1974).

Scope of the Power

The power embraces all ‘‘offences against the United States,’’

except cases of impeachment, and includes the power to remit

fines, penalties, and forfeitures, except as to money covered into

the Treasury or paid an informer, 236 the power to pardon absolutely or conditionally, and the power to commute sentences, which,

as seen above, is effective without the convict’s consent. 237 It has

been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an

invasion of the presidential prerogative, amounting as it does to a

condonation of the offense. 238 It was early assumed that the power

included the power to pardon specified classes or communities

wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in

1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt—to Aguinaldo’s followers—in 1902. 239 Not, however, till

after the Civil War was the point adjudicated, when it was decided

in favor of presidential prerogative. 240

Offenses Against the United States; Contempt of Court.—

In the first place, such offenses are not offenses against the United

States. In the second place, they are completed offenses. 241 The

President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which

was the principal cause of James II’s forced abdication. 242 Lastly,

the term has been held to include criminal contempts of court.
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243 267 U.S. 87 (1925). 244 Id., 110–111. 245 Id., 121, 122. 246 4 Wall. (71 U.S.) 333, 381 (1867).

Such was the holding in Ex parte Grossman, 243 where Chief Justice Taft, speaking for the Court, resorted once more to English

conceptions as being authoritative in construing this clause of the

Constitution. Said he: ‘‘The King of England before our Revolution,

in the exercise of his prerogative, had always exercised the power

to pardon contempts of court, just as he did ordinary crimes and

misdemeanors and as he has done to the present day. In the mind

of a common law lawyer of the eighteenth century the word pardon

included within its scope the ending by the King’s grace of the punishment of such derelictions, whether it was imposed by the court

without a jury or upon indictment, for both forms of trial for

contempts were had. [Citing cases.] These cases also show that,

long before our Constitution, a distinction had been recognized at

common law between the effect of the King’s pardon to wipe out

the effect of a sentence for contempt insofar as it had been imposed

to punish the contemnor for violating the dignity of the court and

the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court’s order necessary to secure

the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and

criminal contempts, is still maintained in English law.’’ 244 Nor was

any new or special danger to be apprehended from this view of the

pardoning power. ‘‘If,’’ said the Chief Justice, ‘‘we could conjure up

in our minds a President willing to paralyze courts by pardoning

all criminal contempts, why not a President ordering a general jail

delivery?’’ Indeed, he queried further, in view of the peculiarities

of procedure in contempt cases, ‘‘may it not be fairly said that in

order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of

a person convicted by a judge without a jury as in favor of one convicted in a jury trial?’’ 245

Effects of a Pardon: Ex parte Garland.—The great leading

case is Ex parte Garland, 246 which was decided shortly after the

Civil War. By an act passed in 1865, Congress had prescribed that

before any person should be permitted to practice in a federal court

he must take oath asserting that he had never voluntarily borne

arms against the United States, had never given aid or comfort to

enemies of the United States, and so on. Garland, who had been

a Confederate sympathizer and so was unable to take the oath, had
ART. II—EXECUTIVE DEPARTMENT 467

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247 Id., 380. 248 Id., 396–397. 249 233 U.S. 51 (1914).

however received from President Johnson the same year ‘‘a full

pardon ‘for all offences by him committed, arising from participation, direct or implied, in the Rebellion,’ . . .’’ The question before

the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress

just mentioned. Said Justice Field for a divided Court: ‘‘The inquiry

arises as to the effect and operation of a pardon, and on this point

all the authorities concur. A pardon reaches both the punishment

prescribed for the offence and the guilt of the offender; and when

the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before

conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after

conviction, it removes the penalties and disabilities, and restores

him to all his civil rights; it makes him, as it were, a new man,

and gives him a new credit and capacity.’’ 247

Justice Miller, speaking for the minority, protested that the act

of Congress involved was not penal in character, but merely laid

down an appropriate test of fitness to practice law. ‘‘The man who,

by counterfeiting, by theft, by murder, or by treason, is rendered

unfit to exercise the functions of an attorney or counsellor at law,

may be saved by the executive pardon from the penitentiary or the

gallows, but he is not thereby restored to the qualifications which

are essential to admission to the bar.’’ 248 Justice Field’s language

must today be regarded as much too sweeping in light of a decision

rendered in 1914 in the case of Carlesi v. New York. 249 Carlesi had

been convicted several years before of committing a federal offense.

In the instant case, the prisoner was being tried for a subsequent

offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier

federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by

the Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its

decision ‘‘must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United

States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a
468 ART. II—EXECUTIVE DEPARTMENT

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250 Id., 59. 251 142 U.S. 450 (1892). 252Knote v. United States, 95 U.S. 149, 153–154 (1877).

circumstance of aggravation even although for such past offenses

there had been a pardon granted.’’ 250

Limits to the Efficacy of a Pardon.—But Justice Field’s

latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is

also correct in saying that a full pardon restores a convict to his

‘‘civil rights,’’ and this is so even though simple completion of the

convict’s sentence would not have had that effect. One such right

is the right to testify in court, and in Boyd v. United States the

Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect. 251 But a pardon cannot

‘‘make amends for the past. It affords no relief for what has been

suffered by the offender in his person by imprisonment, forced

labor, or otherwise; it does not give compensation for what has

been done or suffered, nor does it impose upon the government any

obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in

force is presumed to have been rightfully done and justly suffered,

and no satisfaction for it can be required. Neither does the pardon

affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired

by others whilst that judgment was in force. If, for example, by the

judgment a sale of the offender’s property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to

whom the law has assigned them, they cannot be subsequently

reached and recovered by the offender. The rights of the parties

have become vested, and are as complete as if they were acquired

in any other legal way. So, also, if the proceeds have been paid into

the treasury, the right to them has so far become vested in the

United States that they can only be secured to the former owner

of the property through an act of Congress. Moneys once in the

treasury can only be withdrawn by an appropriation by law.’’ 252

Congress and Amnesty

Congress cannot limit the effects of a presidential amnesty.

Thus the act of July 12, 1870, making proof of loyalty necessary to

recover property abandoned and sold by the Government during

the Civil War, notwithstanding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pro-
ART. II—EXECUTIVE DEPARTMENT 469

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253 United States v. Klein, 13 Wall. (80 U.S.) 128, 143, 148 (1872). 254The Laura, 114 U.S. 411 (1885). 255 2 M. FARRAND, op. cit., n. 4, 183. 256 Id., 538–539.

nounced void. Said Chief Justice Chase for the majority: ‘‘[T]he legislature cannot change the effect of such a pardon any more than

the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special

pardons as evidence of guilt and to treat them as null and void. It

is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them

their legal effect. This certainly impairs the executive authority

and directs the Court to be instrumental to that end.’’ 253 On the

other hand, Congress itself, under the necessary and proper clause,

may enact amnesty laws remitting penalties incurred under the national statutes. 254

Clause 2. He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds

of the Senators present concur; and he shall nominate, and by

and with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of

the supreme Court, and all other Officers of the United States,

whose Appointments are not herein otherwise provided for, and

which shall be established by Law: but the Congress may by

Law vest the Appointment of such inferior Officers, as they

think proper, in the President alone, in the Court of Law, or

in the Heads of Departments.

THE TREATY-MAKING POWER

President and Senate

The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that ‘‘the Senate of the

United States shall have power to make treaties, and to appoint

Ambassadors, and Judges of the Supreme Court.’’ 255 Not until September 7, ten days before the Convention’s final adjournment, was

the President made a participant in these powers. 256 The constitutional clause evidently assumes that the President and Senate will

be associated throughout the entire process of making a treaty, al-
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257 No. 64 (J. Cooke ed., 1961), 435–436. 258 31 ANNALS OF CONGRESS 106 (1818). 259Washington sought to use the Senate as a council, but the effort proved futile, principally because the Senate balked. For the details see E. CORWIN, op. cit.,

n. 44, 207–217. 260 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). 261 E. CORWIN, op. cit., n. 44, 428–429. 262Treaties and Other International Agreements: The Role of the United States

Senate, A Study Prepared for the Senate Committee on Foreign Relations by the

Congressional Research Service, 103d Cong., 1st sess. (Comm. Print) (1993), 96–98

(hereinafter CRS Study); see also AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD)

OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987), § 314

(hereinafter RESTATEMENT, FOREIGN RELATIONS). See Fourteen Diamond Rings v.

United States, 183 U.S. 176, 183 (1901).

though Jay, writing in THE FEDERALIST, foresaw that the initiative

must often be seized by the President without benefit of senatorial

counsel. 257 Yet, so late as 1818, Rufus King, Senator from New

York, who had been a member of the Convention, declared on the

floor of the Senate: ‘‘In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in

this capacity the Senate may, and ought to, look into and watch

over every branch of the foreign affairs of the nation; they may,

therefore, at any time call for full and exact information respecting

the foreign affairs, and express their opinion and advice to the

President respecting the same, when, and under whatever other

circumstances, they may think such advice expedient.’’ 258

Negotiation, a Presidential Monopoly.—Actually, the negotiation of treaties had long since been taken over by the President;

the Senate’s role in relation to treaties is today essentially legislative in character. 259 ‘‘He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to

invade it,’’ declared Justice Sutherland for the Court in 1936. 260

The Senate must, moreover, content itself with such information as

the President chooses to furnish it. 261 In performing the function

that remains to it, however, it has several options. It may consent

unconditionally to a proposed treaty, it may refuse its consent, or

it may stipulate conditions in the form of amendments to the treaty, of reservations to the act of ratification, or of statements of understanding or other declarations, the formal difference between

the first two and the third being that amendments and reservations, if accepted by the President must be communicated to the

other parties to the treaty, and, at least with respect to amendments and often reservations as well, require reopening negotiations and changes, whereas the other actions may have more problematic results. 262 The act of ratification for the United States is

the President’s act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators
ART. II—EXECUTIVE DEPARTMENT 471

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263 Cf. Art. I, § 5, cl. 1; see also Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276,

283–284 (1919). 264For instance, see S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT

(Washington: 2d ed. 1916), 53; CRS Study, op. cit., n. 264, 109–120. 265Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). See THE FEDERALIST, No.

75 (J. Cooke ed., 1961), 504–505. 266 112 U.S. 580, 598 (1884). For treaty provisions operative as ‘‘law of the land’’

(self-executing), see S. CRANDALL, op. cit., n. 264, 36–42, 49–62, 151, 153–163, 179,

238–239, 286, 321, 338, 345–346. For treaty provisions of an ‘‘executory’’ character,

see id., 162–163, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op.

cit., n. 262, 41–68; RESTATEMENT, FOREIGN RELATIONS, op. cit., n. 262, §§ 111–115.

present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under

the Constitution to do business. 263 Conversely, the President may,

if dissatisfied with amendments which have been affixed by the

Senate to a proposed treaty or with the conditions stipulated by it

to ratification, decide to abandon the negotiation, which he is entirely free to do. 264

Treaties as Law of the Land

Treaty commitments of the United States are of two kinds. In

the language of Chief Justice Marshall in 1829: ‘‘A treaty is, in its

nature, a contract between two nations, not a legislative act. It

does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into

execution by the sovereign power of the respective parties to the instrument.

‘‘In the United States, a different principle is established. Our

constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an

act of the legislature, whenever it operates of itself, without the aid

of any legislative provision. But when the terms of the stipulation

import a contract—when either of the parties engages to perform

a particular act, the treaty addresses itself to the political, not the

judicial department; and the legislature must execute the contract,

before it can become a rule for the Court.’’ 265 To the same effect,

but more accurate, is Justice Miller’s language for the Court a half

century later, in the Head Money Cases: ‘‘A treaty is primarily a

compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it. . . . But a treaty may also contain

provisions which confer certain rights upon the citizens or subjects

of one of the nations residing in the territorial limits of the other,

which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the

country.’’ 266
472 ART. II—EXECUTIVE DEPARTMENT

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267See infra, Art. VI, parag. 2 (the supremacy clause). 268S. CRANDALL, op. cit., n. 264, ch. 3. 269 Id., 30–32. For the text of the Treaty, see 1 W. MALLOY (ed.), TREATIES, CONVENTIONS, INTERNATIONAL ACTS, PROTOCOLS AND AGREEMENTS BETWEEN THE UNITED STATES OF AMERICA AND OTHER POWERS (1776–1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586. 270 Id., 588. 271 R. MORRIS, JOHN JAY, THE NATION, AND THE COURT (Boston: 1967), 73–84. 272S. CRANDALL, op. cit., n. 264, 36–40. 273The Convention at first leaned toward giving Congress a negative over state

laws which were contrary to federal statutes or treaties, 1 M. FARRAND, op. cit., n. 4,

47, 54, and then adopted the Paterson Plan which made treaties the supreme law

of the land, binding on state judges, and authorized the Executive to use force to

compel observance when such treaties were resisted. Id., 245, 316, 2 id., 27–29. In

the draft reported by the Committee on Detail, the language thus adopted was close

to the present supremacy clause; the draft omitted the authorization of force from

the clause, id., 183, but in another clause the legislative branch was authorized to

call out the militia to, inter alia, ‘‘enforce treaties’’. Id., 182. The two words were

struck subsequently ‘‘as being superfluous’’ in view of the supremacy clause. Id.,

389–390.

Origin of the Conception.—How did this distinctive feature

of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of

municipal law, thereby rendering them enforceable by the courts

without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same

footing with acts of Congress. 267 The clause was a direct result of

one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’ promises was dependent on the state

legislatures. 268 Particularly with regard to provisions of the Treaty

of Peace of 1783, 269 in which Congress stipulated to protect the

property rights of British creditors of American citizens and of the

former Loyalists, 270 the promises were not only ignored but were

deliberately flouted by many legislatures. 271 Upon repeated British

protests, John Jay, the Secretary for Foreign Affairs, suggested to

Congress that it request state legislatures to repeal all legislation

repugnant to the Treaty of Peace and to authorize their courts to

carry the treaty into effect. 272 Although seven States did comply to

some extent, the impotency of Congress to effectuate its treaty

guarantees was obvious to the Framers who devised Article VI,

paragraph 2, to take care of the situation. 273

Treaties and the States.—As it so happened, the first case in

which the Supreme Court dealt with the question of the effect of

treaties on state laws involved the same issue that had prompted

the drafting of Article VI, paragraph 2. During the Revolutionary

War, the Virginia legislature provided that the Commonwealth’s

paper money, which was depreciating rapidly, was to be legal cur-
ART. II—EXECUTIVE DEPARTMENT 473

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274 9 W. HENING, STATUTES OF VIRGINIA (Richmond: 1821), 377–380. 275 3 Dall. (3 U.S.) 199 (1796). 276 Id., 236–237 (emphasis by Court). 277 3 Cr. (7 U.S.) 454 (1806). 278See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483,

489–490 (1880). 279 100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–198 (1961),

the International Monetary Fund (Bretton Woods) Agreement of 1945, to which the

United States and Yugoslavia were parties, and an Agreement of 1948 between

these two nations, coupled with continued American observance of an 1881 treaty

granting reciprocal rights of inheritance to Yugoslavian and American nations, were

held to preclude Oregon from denying Yugoslavian aliens their treaty rights because

of a fear that Yugoslavian currency laws implementing such Agreements prevented

American nationals from withdrawing the proceeds from the sale of property inherited in the latter country. 280See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S.

433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S.

187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homerency for the payment of debts and to confound creditors who

would not accept the currency provided that Virginia citizens could

pay into the state treasury debts owed by them to subjects of Great

Britain, which money was to be used to prosecute the war, and

that the auditor would give the debtor a certificate of payment

which would discharge the debtor of all future obligations to the

creditor. 274 The Virginia scheme directly contradicted the assurances in the peace treaty that no bars to collection by British creditors would be raised, and in Ware v. Hylton 275 the Court struck

down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: ‘‘A treaty cannot be

the Supreme law of the land, that is of all the United States, if any

act of a State Legislature can stand in its way. If the constitution

of a State . . . must give way to a treaty, and fall before it; can

it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of

the United States that every treaty made, by the authority of the

United States shall be superior to the Constitution and laws of any

individual State; and their will alone is to decide.’’ 276

In Hopkirk v. Bell, 277 the Court further held that this same

treaty provision prevented the operation of a Virginia statute of

limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate. 278 Such a case was Hauenstein v. Lynham, 279 in

which the Court upheld the right of a citizen of the Swiss Republic,

under the treaty of 1850 with that country, to recover the estate

of a relative dying intestate in Virginia, to sell the same, and to

export the proceeds of the sale. 280
474 ART. II—EXECUTIVE DEPARTMENT

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stead property by any instrument not executed by both husband and wife. Todok

v. Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the

natives of rights and privileges in respect to protection and security of person and

property, violated by a state statute which denied to a non-resident alien wife of

a person killed within the State, the right to sue for wrongful death. Such right was

afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R. Co., 213

U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen’s Compensation Act,

compensation was expressly limited to resident parents; the Supreme Court held

that it did not. Liberato v. Royer, 270 U.S. 535 (1926). 281Terrace v. Thompson, 263 U.S. 197 (1923). 282 332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334 U.S. 410 (1948),

in which a California statute prohibiting the issuance of fishing licenses to persons

ineligible to citizenship was disallowed, both on the basis of the Fourteenth Amendment and on the ground that the statute invaded a field of power reserved to the

National Government, namely, the determination of the conditions on which aliens

may be admitted, naturalized, and permitted to reside in the United States. For the

latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was relied upon. 283This occurred in the much advertised case of Sei Fujii v. State, 38 Cal. 2d

718, 242 P. 2d 617 (1952). A lower California court had held that the legislation

involved was void under the United Nations Charter, but the California Supreme

Court was unanimous in rejecting this view. The Charter provisions invoked in this

connection [Arts. 1, 55 and 56], said Chief Justice Gibson, ‘‘we are satisfied . . .

were not intended to supersede domestic legislation.’’ That is, the Charter provisions

were not self-executing. RESTATEMENT, FOREIGN RELATIONS, op. cit., n. 262, § 701,

Reporters’ Note 5, pp. 155–156. 284 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S.

187 (1961). 285 2 M. FARRAND, op. cit., n. 4, 392–394.

Certain more recent cases stem from California legislation,

most of it directed against Japanese immigrants. A statute which

excluded aliens ineligible to American citizenship from owning real

estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed. 281 But in Oyama v. California, 282 a majority of the Court indicated a strongly held opinion

that this legislation conflicted with the equal protection clause of

the Fourteenth Amendment, a view which has since received the

endorsement of the California Supreme Court by a narrow majority. 283 Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923, between the

United States and the Reich, to whom real property in the United

States had descended or been devised, to dispose of it, had survived

the recent war and certain war legislation, and accordingly prevailed over conflicting state legislation. 284

Treaties and Congress.—In the Convention, a proposal to require the adoption of treaties through enactment of a law before

they should be binding was rejected. 285 But the years since have

seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the ef-
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286Supra, text at n. 265. 287 2 Pet. (27 U.S.) 253, 314 (1829). 288 Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ‘‘When the stipulations

are not self-executing they can only be enforced pursuant to legislation to carry

them into effect. . . . If the treaty contains stipulations which are self-executing that

is, require no legislation to make them operative, to that extent they have the force

and effect of a legislative enactment.’’; S. CRANDALL, op. cit., n. 264, chs. 11–15. 289See infra, text at nn. 312–316. 290 8 Stat. 116 (1794). 291The story is told in numerous sources. E.g., S. CRANDALL, op. cit., n. 264,

165–171. For Washington’s message refusing to submit papers relating to the treaty

to the House, see J. RICHARDSON, op. cit., n. 42, 123. 292Debate in the House ran for more than a month. It was excerpted from the

ANNALS and separately published as DEBATES IN THE HOUSE OF REPRESENTATIVES

OF THE UNITED STATES, DURING THE FIRST SESSION OF THE FOURTH CONGRESS UPON

THE CONSTITUTIONAL POWERS OF THE HOUSE WITH RESPECT TO TREATIES (Philadelphia: 1796). A source of much valuable information on the views of the Framers and

those who came after them on the treaty power, the debates are analyzed in detail

in E. BYRD, TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES (The

Hague: 1960), 35–59.

fects of statutes, in connection with the treaty power. For purposes

of this section, the question is whether entry into and ratification

of a treaty is sufficient in all cases to make the treaty provisions

the ‘‘law of the land’’ or whether there are some types of treaty provisions which only a subsequent act of Congress can put into effect?

The language quoted above 286 from Foster v. Neilson 287 early established that not all treaties are self-executing, for as Marshall

there said, a treaty is ‘‘to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.’’ 288

Leaving aside the question when a treaty is and is not self-executing, 289 the issue of the necessity of congressional implementation and the obligation to implement has frequently roiled congressional debates. The matter arose initially in 1796 in connection

with the Jay Treaty, 290 certain provisions of which required appropriations to carry them into effect. In view of the third clause of

Article I, § 9, which says that ‘‘no money shall be drawn from the

Treasury, but in Consequence of Appropriations made by law . . .’’,

it seems to have been universally conceded that Congress must be

applied to if the treaty provisions were to be executed. 291 A bill

was introduced into the House to appropriate the needed funds and

its supporters, within and without Congress, offered the contention

that inasmuch as the treaty was now the law of the land the legislative branch was bound to enact the bill without further ado; opponents led by Madison and Gallatin contended that the House had

complete discretion whether or not to carry into effect treaty provisions. 292 At the conclusion of the debate, the House voted not only

the money but a resolution offered by Madison stating that it did
476 ART. II—EXECUTIVE DEPARTMENT

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293 5 ANNALS OF CONGRESS 771, 782 (1796). A resolution similar in language

was adopted by the House in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871),

835.294S. CRANDALL, op. cit., n. 264, 171–182; 1 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES (New York: 2d ed. 1929), 549–552; but see RESTATEMENT, FOREIGN RELATIONS, op. cit., n. 262, § 111, Reporters’ Note 7, p. 57. See

also H. Rept. 4177, 49th Congress, 2d sess. (1887). Cf. De Lima v. Bidwell, 182 U.S.

1, 198 (1901). 295S. CRANDALL, op. cit., n. 264, 183–199. 296 8 Stat. 228 (1815). 297 3 Stat. 255 (1816). See S. CRANDALL, op. cit., n. 264, 184–188. 298 Id., 188–195; 1 W. WILLOUGHBY, op. cit., n. 294, 555–560. 299S. CRANDALL, op. cit., n. 264, 189–190.

not claim any agency in the treaty-making process, ‘‘but that when

a treaty stipulates regulations on any of the subjects submitted by

the Constitution to the power of Congress, it must depend for its

execution as to such stipulations on a law or laws to be passed by

Congress, and it is the constitutional right and duty of the House

of Representatives in all such cases to deliberate on the expediency

or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive

to the public good.’’ 293 This early precedent with regard to appropriations has apparently been uniformly adhered to. 294

Similarly, with regard to treaties which modify and change

commercial tariff arrangements, the practice has been that the

House always insisted on and the Senate acquiesced in legislation

to carry into effect the provisions of such treaties. 295 The earliest

congressional dispute came over an 1815 Convention with Great

Britain, 296 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation

as the convention might require for effectuation. The Senate and

some members of the House were of the view that no implementing

legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did

not discriminate against United States goods; the House majority

felt otherwise and compromise legislation was finally enacted acceptable to both points of view. 297 But subsequent cases have seen

legislation enacted, 298 the Senate once refused ratification of a

treaty, which purported to reduce statutorily-determined duties, 299

and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity

of some form of congressional implementation.

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by

the Secretary of State, it is said, in summary of the practice and

reasoning from the text of the Constitution, that the limitation on

the treaty power which necessitate legislative implementation may
ART. II—EXECUTIVE DEPARTMENT 477

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300 Anderson, The Extent and Limitations of the Treaty-Making Power, 1 Amer.

J. Int. L. 636, 641 (1907). 301 At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was

bound to provide, but did not indicate what in their opinion made some treaties selfexecuting and others not. 29 ANNALS OF CONGRESS 160 (1816). The House conferees

observed that they thought, and that in their opinion the Senate conferees agreed,

that legislative implementation was necessary to carry into effect all treaties which

contained ‘‘stipulations requiring appropriations, or which might bind the nation to

lay taxes, to raise armies, to support navies, to grant subsidies, to create States,

or to cede territory. . . .’’ Id., 1019. Much the same language was included in a later

report. H. Rept. No. 37, 40th Congress, 2d sess. (1868). Controversy with respect

to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of

United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055

(D.C.Cir.), cert. den., 436 U. S. 907 (1978). 302T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW (New York: 3d ed.

1898, 175; Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS (New York:

1922), 353–356. 303 Head Money Cases, 112 U.S. 580, 598–599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in

1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially

‘‘be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government

the exercise of certain of the delegated powers. . . .’’ 300 The same

thought has been expressed in Congress 301 and by commentators. 302 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for

the courts.

Congressional Repeal of Treaties.—It is in respect to his

contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient,

that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned

to the question: What happens when a treaty provision and an act

of Congress conflict? The answer is, that neither has any intrinsic

superiority over the other and that therefore the one of later date

will prevail leges posteriores priores contrarias abrogant. In short,

the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such

case, as the Court has said: ‘‘Its infraction becomes the subject of

international negotiations and reclamations, so far as the injured

party chooses to seek redress, which may in the end be enforced

by actual war. It is obvious that with all this the judicial courts

have nothing to do and can give no redress.’’ 303
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in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United

States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass

1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871); United States

v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez,

130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney

v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S.

698, 721 (1893). ‘‘Congress by legislation, and so far as the people and authorities

of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved

by the Senate.’’ La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460

(1899). Cf. Reichart v. Felps, 6 Wall. (73 U.S.) 160, 165–166 (1868), wherein it is

stated obiter that ‘‘Congress is bound to regard the public treaties, and it had no

power . . . to nullify [Indian] titles confirmed many years before. . . .’’ 304Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314–315 (1829). In a later case, it

was determined in a different situation that by its terms the treaty in issue, which

had been assumed to be executory in the earlier case, was self-executing. United

States v. Percheman, 7 Pet. (32 U.S.) 51 (1833). 305 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–221 (1902); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309,

320–321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888). 306 1 W. WILLOUGHBY, op. cit., n. 294, 555. 307Other cases, which are cited in some sources, appear distinguishable. United

States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801), applied a treaty entered into

subsequent to enactment of a statute abrogating all treaties then in effect between

the United States and France, so that it is inaccurate to refer to the treaty as superseding a prior statute. In United States v. Forty-Three Gallons of Whiskey, 93 U.S.

188 (1876), the treaty with an Indian tribe in which the tribe ceded certain territory, later included in a State, provided that a federal law restricting the sale of

liquor on the reservation would continue in effect in the territory ceded; the Court

found the stipulation an appropriate subject for settlement by treaty and the provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913). 308 288 U.S. 102 (1933).

Treaties Versus Prior Acts of Congress.—The cases are numerous in which the Court has enforced statutory provisions which

were recognized by it as superseding prior treaty engagements.

Chief Justice Marshall early asserted that the converse would be

true as well, 304 that a treaty which is self-executing is the law of

the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta. 305 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: ‘‘In

fact, however, there have been few (the writer is not certain that

there has been any) instances in which a treaty inconsistent with

a prior act of Congress has been given full force and effect as law

in this country without the assent of Congress. There may indeed

have been cases in which, by treaty, certain action has been taken

without reference to existing Federal laws, as, for example, where

by treaty certain populations have been collectively naturalized,

but such treaty action has not operated to repeal or annul the existing law upon the subject.’’ 306

The one instance that may be an exception 307 is Cook v. United States. 308 There, a divided Court held that a 1924 treaty with
ART. II—EXECUTIVE DEPARTMENT 479

Sec. 2—Powers and Duties of the President Cl. 2—Treaty-Making Power

309 42 Stat. 858, 979, § 581. 310 46 Stat. 590, 747, § 581. 311 United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801). 312 2 Pet. (27 U.S.) 253, 314–315 (1829). 313 Ibid. 314Generally, the qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to

the former, it has always apparently been the practice to insert in treaties affecting

the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by

Congress. 1 W. WILLOUGHBY, op. cit., n. 294, 558. Perhaps of the same nature was

a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama.

TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article

Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were

within the distance from the coast that could be traversed in one

hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of

the Tariff Act of 1922 309 for Coast Guard officers to inspect and

seize any vessel within four leagues—12 miles—of the coast under

like circumstances. The difficulty with the case is that the Tariff

Act provision had been reenacted in 1930, 310 so that a simple application of the rule of the later governing should have caused a

different result. It may be suspected that the low estate to which

Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more

than slightly influential in the Court’s decision.

When Is a Treaty Self-Executing.—Several references have

been made above to a distinction between treaties as self-executing

and as merely executory. But what is it about a treaty that makes

it the law of the land and which gives a private citizen the right

to rely on it in a court of law? As early as 1801, the Supreme Court

took notice of a treaty and finding it applicable to the situation before gave judgment for the petitioner based on it. 311 In Foster v.

Neilson, 312 Chief Justice Marshall explained that a treaty is to be

regarded in courts ‘‘as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.’’ It appears thus that the Court has had in mind two characteristics of treaties which keep them from being self-executing.

First, ‘‘when the terms of the stipulation import a contract—when

either of the parties engages to perform a particular act, the treaty

addresses itself to the political, not the judicial department; and

the legislature must execute the contract, before it can become a

rule for the Court.’’ 313 In other words, the treaty itself may by its

terms require implementation, as by an express stipulation for legislative execution. 314
480 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 2—Treaty-Making Power

V of the Webster-Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by

the two States and payment to them of compensation. S. CRANDALL, op. cit., n. 264,

222–224. 315Q. WRIGHT, op. cit., n. 302, 207–208. See also L. HENKIN, FOREIGN AFFAIRS

AND THE CONSTITUTION (Mineola, N.Y.: 1972), 156–162. 316Thus, compare Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314–315 (1829), with

Cook v. United States, 288 U.S. 102, 118–119 (1933).

Second, the nature of the stipulation may require legislative

execution. That is, with regard to the issue discussed above, whether the delegated powers of Congress imposes any limitation on the

treaty power, it may be that a treaty provision will be incapable

of execution without legislative action. As one authority says:

‘‘Practically this distinction depends upon whether or not the courts

and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities.

. . .

‘‘Treaty provisions which define the rights and obligations of

private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto

are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered. . . .

‘‘On the other hand certain treaty obligations are addressed

solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction

of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc.’’ 315 It may well be that these two

characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them. 316

Treaties and the Necessary and Proper Clause.—What

power, or powers, does Congress exercise when it enacts legislation

for the purpose of carrying treaties of the United States into effect?

When the subject matter of the treaty falls within the ambit of

Congress’ enumerated powers, then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals

with a subject which falls within the national jurisdiction because

of its international character, then recourse is had to the necessary

and proper clause. Thus, of itself, Congress would have had no

power to confer judicial powers upon foreign consuls in the United
ART. II—EXECUTIVE DEPARTMENT 481

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317 Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614. 318See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are

given. The supplementary legislation, later reenacted at Rev. Stat. 4083–4091, was

repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross

case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957). 319 18 U.S.C. §§ 3181–3195. 320 Baldwin v. Franks, 120 U.S. 678, 683 (1887). 321 Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by

Justice Story in his opinion for the court in Prigg v. Pennsylvania, 16 Pet. (41 U.S.)

539 (1842), in the following words: ‘‘Treaties made between the United States and

foreign powers, often contain special provisions, which do not execute themselves,

but require the interposition of Congress to carry them into effect, and Congress has

constantly, in such cases, legislated on the subject; yet, although the power is given

to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.’’ Id., 619. Story was here

in quest of arguments to prove that Congress had power to enact a fugitive slave

law, which he based on its power ‘‘to carry into effect rights expressly given and

duties expressly enjoined’’ by the Constitution. Id., 618–619. However, the treatymaking power is neither a right nor a duty, but one of the powers ‘‘vested by this

Constitution in the Government of the United States.’’ Art. I, § 8, cl. 18.

States, but the treaty-power can do this and has done it repeatedly

and Congress has supplemented these treaties by appropriate legislation. 317 Congress could not confer judicial power upon American

consuls abroad to be there exercised over American citizens, but

the treaty-power can and has, and Congress has passed legislation

perfecting such agreements and such legislation has been

upheld. 318

Again, Congress of itself could not provide for the extradition

of fugitives from justice, but the treaty-power can and has done so

scores of times, and Congress has passed legislation carrying our

extradition treaties into effect. 319 And Congress could not ordinarily penalize private acts of violence within a State, but it can

punish such acts if they deprive aliens of their rights under a treaty. 320 Referring to such legislation, the Court has said: ‘‘The power

of Congress to make all laws necessary and proper for carrying into

execution as well the powers enumerated in section 8 of Article I

of the Constitution, as all others vested in the Government of the

United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give

efficacy to any stipulations which it is competent for the President

by and with the advice and consent of the Senate to insert in a

treaty with foreign power.’’ 321 In a word, the treaty-power cannot

purport to amend the Constitution by adding to the list of Congress’ enumerated powers, but having acted, the consequence will

often be that it has provided Congress with an opportunity to enact

measures which independently of a treaty Congress could not pass;

the only question that can be raised as to such measures will be
482 ART. II—EXECUTIVE DEPARTMENT

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322 252 U.S. 416 (1920). 323 39 Stat. 1702 (1916). 324 40 Stat. 755 (1918). 325 United States v. Shauver, 214 F. 154 (E.D.Ark. 1914); United States v.

McCullagh, 221 F. 288 (D.Kan. 1915). The Court did not purport to decide whether

those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920).

Today, there seems no doubt that Congress’ power under the commerce clause

would be deemed more than adequate but at that time a majority of the Court had

a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S.

251 (1918). 326Missouri v. Holland, 252 U.S. 416, 432 (1920). 327 Id., 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14,

33 (1903). 328Whitney v. Robertson, 124 U.S. 190, 194 (1888).

whether they are ‘‘necessary and proper’’ measures for the carrying

of the treaty in question into operation.

The foremost example of this interpretation is Missouri v. Holland. 322 There, the United States and Great Britain had entered

into a treaty for the protection of migratory birds, 323 and Congress

had enacted legislation pursuant to the treaty to effectuate it. 324

The State objected that such regulation was reserved to the States

by the Tenth Amendment and that the statute infringed on this

reservation, pointing to lower court decisions voiding an earlier act

not based on a treaty. 325 Noting that treaties ‘‘are declared the supreme law of the land,’’ Justice Holmes for the Court said: ‘‘If the

treaty is valid there can be no dispute about the validity of the

statute under Article I, § 8, as a necessary and proper means to

execute the powers of the Government.’’ 326 ‘‘It is obvious,’’ he continued, ‘‘that there may be matters of the sharpest exigency for the

national well being that an act of Congress could not deal with but

that a treaty followed by such an act could, and it is not lightly to

be assumed that, in matters requiring national action, ‘a power

which must belong to and somewhere reside in every civilized government’ is not to be found.’’ 327 Since the treaty and thus the statute dealt with a matter of national and international concern, the

treaty was proper and the statute was one ‘‘necessary and proper’’

to effectuate the treaty.

Constitutional Limitations on the Treaty Power

A question growing out of the discussion above is whether the

treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ‘‘are declared . . . to be

the supreme law of the land, and no superior efficacy is given to

either over the other.’’ 328 As statutes may be held void because

they contravene the Constitution, it should follow that treaties may

be held void, the Constitution being superior to both. And indeed
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329 ‘‘The treaty is . . . a law made by the proper authority, and the courts of

justice have no right to annul or disregard any of its provisions, unless they violate

the Constitution of the United States.’’ Doe v. Braden, 16 How. (57 U.S.) 635, 656

(1853). ‘‘It need hardly be said that a treaty cannot change the Constitution or be

held valid if it be in violation of that instrument.’’ The Cherokee Tobacco, 11 Wall.

(78 U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle,

265 U.S. 332, 341 (1924). 330 1 W. WILLOUGHBY, op. cit., n. 294, 561; L. HENKIN, op. cit., n. 315, 137. In

Power Authority of New York v. FPC, 247 F. 2d 538 (2d Cir. 1957), a reservation

attached by the Senate to a 1950 treaty with Canada was held invalid. The court

observed that the reservation was properly not a part of the treaty but that if it

were it would still be void as an attempt to circumvent constitutional procedures

for enacting amendments to existing federal laws. The Supreme Court vacated the

judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. Guy W.

Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement with Canada was

held void as conflicting with existing legislation. The Supreme Court affirmed on

nonconstitutional grounds. 348 U.S. 296 (1955). 331 Cf. City of New Orleans v. United States, 10 Pet. (35 U.S.) 662 (1836); Rocca

v. Thompson, 223 U.S. 317 (1912). 332 252 U.S. 416 (1920). 333 Id., 433. Subsequently, he also observed: ‘‘The treaty in question does not

contravene any prohibitory words to be found in the Constitution.’’ Ibid. 334The attempt, the so-called ‘‘Bricker Amendment,’’ was aimed at the expansion into reserved state powers through treaties as well as at executive agreements.

The key provision read: ‘‘A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.’’

S.J. Res. 43, 82d Congress, 1st sess. (1953), § 2. See also S.J. Res. 1, 84th Congress,

1st sess. (1955), § 2. Extensive hearings developed the issues thoroughly but not always clearly. Hearings on S.J. Res. 130, Before a Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d sess. (1952). Hearings on S.J. Res. 1 & 43, Before a Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st sess.

(1953); Hearings on S.J. Res. 1, Before a Subcommittee of the Senate Judiciary

Committee, 84th Congress, 1st sess. (1955). See L. HENKIN, op. cit., n. 315, 383–385.

the Court has numerous times so stated. 329 It does not appear that

the Court has ever held a treaty unconstitutional, 330 although

there are examples in which decision was seemingly based on a

reading compelled by constitutional considerations. 331 In fact,

there would be little argument with regard to the general point

were it not for certain dicta in Justice Holmes’ opinion in Missouri

v. Holland. 332 ‘‘Acts of Congress,’’ he said, ‘‘are the supreme law of

the land only when made in pursuance of the Constitution, while

treaties are declared to be so when made under the authority of the

United States. It is open to question whether the authority of the

United States means more than the formal acts prescribed to make

the convention.’’ Although he immediately followed this passage

with a cautionary ‘‘[w]e do not mean to imply that there are no

qualifications to the treaty-making power . . . ,’’ 333 the Justice’s

language and the holding by which it appeared that the reserved

rights of the States could be invaded through the treaty power led

in the 1950s to an abortive effort to amend the Constitution to restrict the treaty power. 334
484 ART. II—EXECUTIVE DEPARTMENT

Sec. 2—Powers and Duties of the President Cl. 2—Treaty-Making Power

335 354 U.S. 1 (1957) (plurality opinion). 336 Id., 16–17. For discussions of the issue, see AMERICAN LAW INSTITUTE, op.

cit., n. 262, § 302; Nowak & Rotunda, A Comment on the Creation and Resolution

of a ‘‘Non-Problem:’’ Dames & Moore v. Regan, the Foreign Affairs Power, and the

Role of the Courts, 29 UCLA L. Rev. 1129 (1982); L. HENKIN, op. cit., n. 315, 137–

156.337Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Fairfax’s Devisee v. Hunter’s

Lessee, 7 Cr. (11 U.S.) 603 (1813); Chirac v. Chirac, 2 Wheat. (15 U.S.) 259 (1817);

Hauenstein v. Lynham, 100 U.S. 483 (1880). Jefferson, in his list of exceptions to

the treaty power, thought the Constitution ‘‘must have meant to except out of these

the rights reserved to the States, for surely the President and Senate cannot do by

treaty what the whole Government is interdicted from doing in any way.’’ JEFFERSON’S MANUAL OF PARLIAMENTARY PRACTICE, § 594, reprinted in THE RULES AND

MANUAL OF THE HOUSE OF REPRESENTATIVES, H. Doc. 102–405, 102d Congress, 2d

sess. (1993), 298–299. But this view has always been the minority one. Q. WRIGHT,

op. cit., n. 302, 92 n. 97. The nearest the Court ever came to supporting this argument appears to be Frederickson v. Louisiana, 23 How. (64 U.S.) 445, 448 (1860).

Controversy over the Holmes language apparently led Justice

Black in Reid v. Covert 335 to deny that the difference in language

of the supremacy clause with regard to statutes and with regard

to treaties was relevant to the status of treaties as inferior to the

Constitution. ‘‘There is nothing in this language which intimates

that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied

the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it

clear that the reason treaties were not limited to those made in

‘pursuance’ of the Constitution was so that agreements made by

the United States under the Articles of Confederation, including

the important treaties which concluded the Revolutionary War,

would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who

were responsible for the Bill of Rights—let alone alien to our entire

constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international

agreement without observing constitutional prohibitions. In effect,

such construction would permit amendment of that document in a

manner not sanctioned by Article V.’’ 336

Establishment of the general principle, however, is but the beginning; there is no readily agreed-upon standard for determining

what the limitations are. The most persistently urged proposition

in limitation has been that the treaty power must not invade the

reserved powers of the States. In view of the sweeping language of

the supremacy clause, it is hardly surprising that this argument

has not prevailed. 337 Nevertheless, the issue, in the context of Congress’ power under the necessary and proper clause to effectuate a

treaty dealing with a subject arguably within the domain of the
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338Missouri v. Holland, 252 U.S. 416 (1920). 339 Id., 433. 340 Id., 435. 341 1 W. WILLOUGHBY, op. cit., n. 294, 569. And see L. HENKIN, op. cit., n. 315,

143–148; RESTATEMENT, FOREIGN RELATIONS, op. cit., 262, § 302, Comment d, & Reporters’ Note 3, pp. 154–157. 342 E.g., Geofroy v. Riggs, 133 U.S. 258, 266–267 (1890); Holden v. Joy, 17 Wall.

(84 U.S.) 211, 243 (1872). Jefferson listed as an exception from the treaty power

‘‘those subjects of legislation in which [the Constitution] gave a participation to the

House of Representatives’’ although he admitted ‘‘that it would leave very little matter for the treaty power to work on.’’ JEFFERSON’S MANUAL, op. cit., n. 337, 299.

States, was presented as recently as 1920, when the Court upheld

a treaty and implementing statute providing for the protection of

migratory birds. 338 ‘‘The treaty in question does not contravene

any prohibitory words to be found in the Constitution. The only

question is whether it is forbidden by some invisible radiation from

the general terms of the Tenth Amendment.’’ 339 The gist of the

holding followed. ‘‘Here a national interest of very nearly the first

magnitude is involved. It can be protected only by national action

in concert with that of another power. The subject-matter is only

transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds

for any powers to deal with. We see nothing in the Constitution

that compels the Government to sit by while a food supply is cut

off and the protectors of our forests and our crops are destroyed.’’ 340

The doctrine which seems deducible from this case and others

is ‘‘that in all that properly relates to matters of international

rights and obligations, whether these rights and obligations rest

upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses

all the powers of a constitutionally centralized sovereign State;

and, therefore, that when the necessity from the international

standpoint arises the treaty power may be exercised, even though

thereby the rights ordinarily reserved to the States are invaded.’’ 341 It is not, in other words, the treaty power which enlarges either the federal power or the congressional power but the

international character of the interest concerned which might be

acted upon.

Dicta in some of the cases lend support to the argument that

the treaty power is limited by the delegation of powers among the

branches of the National Government 342 and especially by the delegated powers of Congress, although it is not clear what the limitation means. If it is meant that no international agreement could be

constitutionally entered into by the United States within the

sphere of such powers, the practice from the beginning has been to
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343Q. WRIGHT, op. cit., n. 302, 101–103. See also, L. HENKIN, op. cit., n. 315,

148–151. 344 Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v. Riggs, 133 U.S. 258,

267 (1890). 345 ‘‘[I]t must be assumed that the framers of the Constitution intended that

[the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty.

. . .’’ Holden v. Joy 17 Wall. (84 U.S.) 211, 243 (1872). With the exceptions noted,

‘‘it is not perceived that there is any limit to the questions which can be adjusted

touching any matter which is properly the subject of negotiation with a foreign

country.’’ Geofroy v. Riggs, 133 U.S. 258, 267 (1890). ‘‘The treatymaking power of

the United States . . . does extend to all proper subjects of negotiation between our

government and other nations.’’ Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). 346 Cf. L. HENKIN, op. cit., n. 315, 151–156. 347Other reservations which have been expressed may be briefly noted. It has

been contended that the territory of a State could not be ceded without such State’s

consent. Geofroy v. Riggs, 133 U.S. 258, 267 (1890), citing Fort Leavenworth R.R.

v. Lowe, 114 U.S. 525, 541 (1885). Cf. the Webster-Ashburton Treaty, Article V, 8

Stat. 572, 575. But see S. CRANDALL, op. cit., n. 264, 220–229; 1 W. WILLOUGHBY,

op. cit., 294, 572–576.

A further contention is that while foreign territory can be annexed to the United States by the treaty power, it could not be incorporated with the United States

except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310–344

(1901) (four Justices dissenting). This argument appears to be a variation of the one

in regard to the correct procedure to give domestic effect to treaties.

Another argument grew out the XII Hague Convention of 1907, proposing an

International Prize Court with appellate jurisdiction from national courts in prize

cases. President Taft objected that no treaty could transfer to a tribunal not known

to the Constitution any part of the judicial power of the United States and a compromise was arranged. Q. WRIGHT, op. cit., n. 302, 117–118; H. Rept. No. 1569, 68th

Congress, 2d sess. (1925).

the contrary; 343 if it is meant that treaty provisions dealing with

matters delegated to Congress must, in order to become the law of

the land, receive the assent of Congress through implementing legislation, it states not a limitation on the power of making treaties

as international conventions but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them.

It has also been suggested that the prohibitions against governmental action contained in the Constitution, the Bill of Rights

particularly, limit the exercise of the treaty power. No doubt this

is true, though again there are no cases which so hold. 344

One other limitation of sorts may be contained in the language

of certain court decisions which seem to say that only matters of

‘‘international concern’’ may be the subject of treaty negotiations. 345 While this may appear to be a limitation, it does not take

account of the elasticity of the concept of ‘‘international concern’’ by

which the subject matter of treaties has constantly expanded over

the years. 346 At best, any attempted resolution of the issue of limitations must be an uneasy one. 347
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348 Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936);

Holmes v. Jenison, 14 Pet. (39 U.S.) 540, 575–576 (1840). 349 1 Stat. 578 (1798). 350 4 Dall. (4 U. S.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340

(1886), with respect to claims arising out of this situation. 351The matter was most extensively canvassed in the debate with respect to

President Carter’s termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination,

Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st

sess. (1979). On the issue generally, see RESTATEMENT, FOREIGN RELATIONS, op. cit.,

In brief, the fact that all the foreign relations power is vested

in the National Government and that no formal restriction is imposed on the treaty-making power in the international context 348

leaves little room for the notion of a limited treaty-making power

with regard to the reserved rights of the States or in regard to the

choice of matters concerning which the Federal Government may

treat with other nations; protected individual rights appear to be

sheltered by specific constitutional guarantees from the domestic

effects of treaties, and the separation of powers at the federal level

may require legislative action to give municipal effect to international agreements.

Interpretation and Termination of Treaties as International

Compacts

The repeal by Congress of the ‘‘self-executing’’ clauses of a treaty as ‘‘law of the land’’ does not of itself terminate the treaty as

an international contract, although it may very well provoke the

other party to the treaty to do so. Hence, the questions arise where

the Constitution lodges this power and where it lodges the power

to interpret the contractual provisions of treaties. The first case of

outright abrogation of a treaty by the United States occurred in

1798, when Congress by the Act of July 7 of that year, pronounced

the United States freed and exonerated from the stipulations of the

Treaties of 1778 with France. 349 This act was followed two days

later by one authorizing limited hostilities against the same country; in the case of Bas v. Tingy, 350 the Supreme Court treated the

act of abrogation as simply one of a bundle of acts declaring ‘‘public

war’’ upon the French Republic.

Termination of Treaties by Notice.—Typically, a treaty provides for its termination by notice of one of the parties, usually

after a prescribed time from the date of notice. Of course, treaties

may also be terminated by agreement of the parties, or by breach

by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been

raised: where in the Government of the United States does the

Constitution lodge the power to unmake treaties? 351 Reasonable
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n. 262, § 339; CRS Study, 158–167; L. HENKIN, op. cit., n. 315, 167–171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—

The Original Intent of the Framers of the Constitution Historically Examined, 55

Wash. L. Rev. 1 (1979); Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577 (1980). 352 Compare the different views of the 1846 action in Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess.

(1979), 160–162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department

of State), and in Taiwan, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 300 (memorandum of Senator Goldwater). 353S. CRANDALL, op. cit., n. 264, 458–459. 354 Id., 459–462; Q. WRIGHT, op. cit., n. 302, 258.

arguments may be made locating the power in the President alone,

in the President-and-Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them

under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the

Senate for making a treaty, one can logically argue that its consent

is as well required for terminating it. Finally, because treaties are,

like statutes, the supreme law of the land, it may well be argued

that, again like statutes, they may be undone only through lawmaking by the entire Congress; additionally, since Congress may be

required to implement treaties and may displace them through legislation, this argument is reenforced.

Definitive resolution of this argument appears remotely possible. Historical practice provides support for all three arguments,

and the judicial branch seems unlikely to essay any answer.

While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a

public law, many instances may be cited of congressional actions

mandating terminations by notice of the President or changing the

legal environment so that the President is required to terminate.

The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846, 352

when by joint resolution Congress authorized the President at his

discretion to notify the British government of the abrogation of the

Convention of August 6, 1827, relative to the joint occupation of the

Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even

those terminable on notice, are terminable only through action of

Congress. 353 Subsequently, Congress has often passed resolutions

denouncing treaties or treaty provisions, which by their own terms

were terminable on notice, and Presidents have usually, though not

invariably, carried out such resolutions. 354 By the La Follette-
ART. II—EXECUTIVE DEPARTMENT 489

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355 38 Stat. 1164 (1915). 356S. CRANDALL, op. cit., n. 264, 460. See Van der Weyde v. Ocean Transp. Co.,

297 U. S. 114 (1936). 357 41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties,

15 Am. J. Int’l. L. 33 (1921). In 1879, Congress passed a resolution requiring the

President to abrogate a treaty with China, but President Hayes vetoed it, partly on

the ground that Congress as an entity had no role to play in ending treaties, only

the President with the advice and consent of the Senate. 9 J. RICHARDSON, op. cit.,

n. 42, 4466, 4470–4471. For the views of President Taft on the matter in context,

see W. TAFT, THE PRESIDENCY, ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES AND ITS

LIMITATIONS (New York: 1916), 112–113. 358Since this time, very few instances appear in which Congress has requested

or directed termination by notice, but they have resulted in compliance. E.g., 65

Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain

Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example

appears to be § 313 of the Anti-Apartheid Act of 1986, which required the Secretary

of State to terminate immediately, in accordance with its terms, the tax treaty and

protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L.

99–440, 100 Stat. 3515, 22 U.S.C. § 5063. 359 5 J. RICHARDSON, op. cit., n. 42, 279, 334. 360S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6–7. The other instance was

President Wilson’s request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 Cong. Rec. 1793–1794 (1921). See CRS

Study, op. cit., n. 262, 161–162.

Furuseth Seaman’s Act, 355 President Wilson was directed, ‘‘within

ninety days after the passage of the act, to give notice to foreign

governments that so much of any treaties as might be in conflict

with the provisions of the act would terminate on the expiration of

the periods of notice provided for in such treaties,’’ and the required notice was given. 356 When, however, by section 34 of the

Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other

parties to certain treaties, with which the Act was not in conflict

but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he ‘‘did not deem the direction contained in section 34

. . . an exercise of any constitutional power possessed by Congress.’’ 357 The same attitude toward section 34 was continued by

Presidents Harding and Coolidge. 358

Very few precedents exist in which the President terminated a

treaty after obtaining the approval of the Senate alone. The first

occurred in 1854–1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark. 359

When the validity of this action was questioned in the Senate, the

Committee on Foreign Relations reported that the procedure was

correct, that prior full-Congress actions were incorrect, and that

the right to terminate resides in the treaty-making authorities, the

President and the Senate. 360
490 ART. II—EXECUTIVE DEPARTMENT

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361 Compare, e.g., Treaty Termination, Hearings before the Senate Committee

on Foreign Relations, 96th Congress, 1st sess. (1979), 156–191 (memorandum of

Hon. Herbert Hansell, Legal Advisor, Department of State), with Taiwan, Hearings

before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979),

300–307 (memorandum of Senator Goldwater). See CRS Study, op. cit., n. 262, 164–

166.362 13 Stat. 568 (1865). 363The treaty, see 11 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA (Washington: 1970), 894, was probably

at odds with the Tariff Act of 1897. 30 Stat. 151. 364 Compare the views expressed in the Hansell and Goldwater memoranda, op.

cit., n. 361. For expressions of views preceding the immediate controversy, see, e.g.,

Riesenfeld, The Power of Congress and the President in International Relations, 25

Calif. L. Rev. 643, 658–665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 Minn. L. Rev. 879 (1958). 365 Note that the President terminated the treaty in the face of an expression

of the sense of Congress that prior consultation between President and Congress

should occur. 92 Stat. 730, 746 (1978). 366Originally, S. Res. 15 had disapproved presidential action alone, but it was

amended and reported by the Foreign Relations Committee to recognize at least 14

bases of presidential termination. S. Rept. No. 119, 96th Congress, 1st sess. (1979).

In turn, this resolution was amended to state the described sense of the Senate

view, but the matter was never brought to final action. See 125 Cong. Rec. 13672,

13696, 13711, 15209, 15859 (1979).

Examples of treaty terminations in which the President acted

alone are much disputed with respect both to facts and to the underlying legal circumstances. 361 Apparently, President Lincoln was

the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action. 362 The first such action

by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an

1850 treaty with Switzerland, but the action may be explainable as

the treaty being inconsistent with a subsequently enacted law. 363

Other such renunciations by the President acting on his own have

been similarly explained, and similarly the explanations have been

controverted. While the Department of State, in setting forth legal

justification for President Carter’s notice of termination of the treaty with Taiwan, cited many examples of the President acting alone,

many of these are ambiguous and may be explained away by, i.e.,

conflicts with later statutes, changed circumstances, or the like. 364

No such ambiguity accompanied President Carter’s action on

the Taiwan treaty, 365 and a somewhat lengthy Senate debate was

provoked. In the end, the Senate on a preliminary vote approved

a ‘‘sense of the Senate’’ resolution claiming for itself a consenting

role in the termination of treaties, but no final vote was ever taken

and the Senate thus did not place itself in conflict with the President. 366 However, several Members of Congress went to court to

contest the termination, apparently the first time a judicial resolu-
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367Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because

of the political question doctrine, id., 1002, but one other Justice in the majority and

one in dissent rejected this analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine. 368 Cf. Baker v. Carr, 369 U.S. 186, 211–213, 217 (1962). 369 229 U.S. 447 (1913). 370 Id., 473–476. 371 Clark v. Allen, 331 U.S. 503 (1947).

tion of the question had been sought. A divided Court of Appeals,

on the merits, held that presidential action was sufficient by itself

to terminate treaties, but the Supreme Court, no majority agreeing

on a common ground, vacated that decision and instructed the trial

court to dismiss the suit. 367 While no opinion of the Court bars future litigation, it appears that the political question doctrine or

some other rule of judicial restraint will leave such disputes to the

contending forces of the political branches. 368

Determination Whether a Treaty Has Lapsed.—At the

same time, there is clear judicial recognition that the President

may without consulting Congress validly determine the question

whether specific treaty provisions have lapsed. The following passage from Justice Lurton’s opinion in Charlton v. Kelly 369 is pertinent: ‘‘If the attitude of Italy was, as contended, a violation of the

obligation of the treaty, which, in international law, would have

justified the United States in denouncing the treaty as no longer

obligatory, it did not automatically have that effect. If the United

States elected not to declare its abrogation, or come to a rupture,

the treaty would remain in force. It was only voidable, not void;

and if the United States should prefer, it might waive any breach

which in its judgment had occurred and conform to its own obligation as if there had been no such breach. . . . That the political

branch of the Government recognizes the treaty obligation as still

existing is evidenced by its action in this case. . . . The executive

department having thus elected to waive any right to free itself

from the obligation to deliver up its own citizens, it is the plain

duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the

land as affording authority for the warrant of extradition.’’ 370 So

also it is primarily for the political departments to determine

whether certain provisions of a treaty have survived a war in

which the other contracting state ceased to exist as a member of

the international community. 371

Status of a Treaty a Political Question.—At any rate, it is

clear that many questions which arise concerning a treaty are of

a political nature and will not be decided by the courts. In the
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372 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855). 373 2 Pet. (27 U.S.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies

this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs

the uncertainty. See L. HENKIN, op. cit., n. 315, 208–216; RESTATEMENT, FOREIGN

RELATIONS, op. cit., n. 262, § 326. 374 5 Pet. (30 U.S.) 1 (1831). 375 6 Pet. (31 U.S.) 515 (1832). 376 Id., 558.

words of Justice Curtis in Taylor v. Morton: 372 It is not ‘‘a judicial

question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation

in a treaty, has been voluntarily withdrawn by one party, so that

it is no longer obligatory on the other; whether the views and acts

of a foreign sovereign, manifested through his representative have

given just occasion to the political departments of our government

to withhold the execution of a promise contained in a treaty, or to

act in direct contravention of such promise. . . . These powers have

not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. The y belong to diplomacy and

legislation, and not to the administration of existing laws and it

necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found

nowhere, in our system of government.’’ Chief Justice Marshall’s

language in Foster v. Neilson 373 is to the same effect.

Indian Treaties

In the early cases of Cherokee Nation v. Georgia, 374 and

Worcester v. Georgia, 375 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign

state within the meaning of that clause of the Constitution which

extends the judicial power of the United States to controversies

‘‘between a State or the citizens thereof and foreign states, citizens

or subjects.’’ Second, it held: ‘‘The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme

law of the land, had adopted and sanctioned the previous treaties

with the Indian nations, and consequently admits their rank

among those powers who are capable of making treaties. The words

‘treaty’ and ‘nation’ are words of our own language, selected in our

diplomatic and legislative proceedings, by ourselves, having each a

definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth.

They are applied to all in the same sense.’’ 376

Later cases established that the power to make treaties with

the Indian tribes was coextensive with the power to make treaties
ART. II—EXECUTIVE DEPARTMENT 493

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377 Holden v. Joy, 17 Wall. (84 U.S.) 211, 242 (1872); United States v. FortyThree Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S.

340, 355–356 (1908). 378The New York Indians, 5 Wall. (72 U.S.) 761 (1867). 379The Kansas Indians, 5 Wall. (72 U.S.) 737, 757 (1867). 380 United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876). 381The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871). See also Ward v. Race

Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898). 382 16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71. 383Ward v. Race Horse, 163 U.S. 504 (1896). 384Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 385 Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 (1890). 386The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871).

with foreign nations, 377 that the States were incompetent to interfere with rights created by such treaties, 378 that as long as the

United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State, 379 that

a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within

an organized county of a State, 380 and that an act of Congress contrary to a prior Indian treaty repealed it. 381

Present Status of Indian Treaties.—Today, the subject of

Indian treaties is a closed account in the constitutional law ledger.

By a rider inserted in the Indian Appropriation Act of March 3,

1871, it was provided ‘‘That hereafter no Indian nation or tribe

within the territory of the United States shall be acknowledged or

recognized as an independent nation, tribe, or power with whom

the United States may contract by treaty: Provided, further, that

nothing herein contained shall be construed to invalidate or impair

the obligation of any treaty heretofore lawfully made and ratified

with any such Indian nation or tribe.’’ 382 Subsequently, the power

of Congress to withdraw or modify tribal rights previously granted

by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the

United States so long as game may be found thereon and to bring

hunting by the Indians within the police power of the State. 383

Similarly, statutes modifying rights of members in tribal lands, 384

granting a right of way for a railroad through lands ceded by treaty

to an Indian tribe, 385 or extending the application of revenue laws

respecting liquor and tobacco over Indian territories, despite an

earlier treaty exemption, 386 have been sustained.

When, on the other hand, definite property rights have been

conferred upon individual Native Americans, whether by treaty or

under an act of Congress, they are protected by the Constitution
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387 Choate v. Trapp, 224 U.S. 665, 677–678 (1912); Jones v. Meehan, 175 U.S.

1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for

escheat to tribe of fractionated interests in land representing less than 2% of a

tract’s total acreage violates Fifth Amendment’s taking clause by completely abrogating rights of intestacy and devise). 388 Compare Article II, § 2, cl. 2, and Article VI, cl. 2, with Article I, 10, cls. 1

and 3. Cf. Holmes v. Jennison, 14 Pet. (39 U.S.) 540, 570–572 (1840). And note the

discussion in Weinberger v. Rossi, 456 U.S. 25, 28–32 (1982).

to the same extent and in the same way as the private rights of

other residents or citizens of the United States. Hence it was held

that certain Indian allottees under an agreement according to

which, in part consideration of their relinquishment of all their

claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period,

acquired vested rights of exemption from State taxation which were

protected by the Fifth Amendment against abrogation by Congress. 387

A regular staple of each Term’s docket of the Court is one or

two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the States. Thus, though no treaties have been negotiated

for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.

INTERNATIONAL AGREEMENTS WITHOUT SENATE

APPROVAL

The capacity of the United States to enter into agreements

with other nations is not exhausted in the treaty-making power.

The Constitution recognizes a distinction between ‘‘treaties’’ and

‘‘agreements’’ or ‘‘compacts’’ but does not indicate what the difference is. 388 The differences, which once may have been clearer,

have been seriously blurred in practice within recent decades. Once

a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification.

During the first half-century of its independence, the United

States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II,

there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940–1989, the Nation entered

into 759 treaties and into 13,016 published executive agreements.

Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in

the first 50 years of its history, the United States concluded twice
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389 CRS Study, op. cit., n. 262, xxxiv-xxxv, 13–16. Not all such agreements, of

course, are published, either because of national-security/secrecy considerations or

because the subject matter is trivial. In a 1953 hearing exchange, Secretary of State

Dulles estimated that about 10,000 executive agreements had been entered into in

connection with the NATO treaty. ‘‘Every time we open a new privy, we have to

have an executive agreement.’’ Hearing on S.J. Res. 1 and S.J. Res. 43, Before a

Subcommittee of the Senate Judiciary Committee, 83d Congress, 1st sess. (1953),

877.390One authority concluded that of the executive agreements entered into between 1938 and 1957, only 5.9 percent were based exclusively on the President’s

constitutional authority. McLaughlin, The Scope of the Treaty Power in the United

States—II, 43 Minn. L. Rev. 651, 721 (1959). Another, somewhat overlapping study

found that in the period 1946–1972, 88.3% of executive agreements were based at

least in part on statutory authority; 6.2% were based on treaties, and 5.5% were

based solely on executive authority. International Agreements: An Analysis of Executive Regulations and Practices, A Study Prepared for the Senate Committee on Foreign Relations by the Congressional Research Service, 95th Cong., 1st sess. (Comm.

Print) (1977), 22. 391 ‘‘[T]he distinction between so-called ‘executive agreements’ and ‘treaties’ is

purely a constitutional one and has no international significance.’’ Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 Amer. J.

Int. L. 697 (Supp.) (1935). See E. BYRD, op. cit., n. 292, 148–151. Many scholars have

aggressively promoted the use of executive agreements, in contrast to treaties, as

a means of enhancing the role of the United States, especially the role of the President, in the international system. See McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 Yale L. J. 181, 534 (1945). 392 1 Stat. 138 (1790). See E. BYRD, op. cit., n. 292, 53 n. 146.

as many treaties as executive agreements. In the 50-year period

from 1839 to 1889, a few more executive agreements than treaties

were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since

1939, executive agreements have comprised more than 90% of the

international agreements concluded. 389

One must, of course, interpret the raw figures carefully. Only

a very small minority of all the executive agreements entered into

were based solely on the powers of the President as Commanderin-Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate. 390 Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation

among the kinds of agreements which are classed under this single

heading. 391

Executive Agreements by Authorization of Congress

Congress early authorized the entry into negotiation and

agreement of officers of the executive branch with foreign governments, authorizing the borrowing of money from foreign countries 392 and appropriating money to pay off the government of Al-
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393W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS (New York: 1941),

41. 394 Id., 38–40. The statute was 1 Stat. 232, 239, 26 (1792). 395 Id., 62–70. 396 Id., 78–81; S. CRANDALL, op. cit., n. 264, 127–131; see CRS Study, op. cit.,

n. 262, 52–55. 397 Id., 121–127; W. MCCLURE, op. cit., n. 393, 83–92, 173–189. 398 Id., 8, 59–60. 399 § 3, 26 Stat. 567, 612. 400Tariff Act of 1897, § 3, 30 Stat. 15, 203; Tariff Act of 1909, 36 Stat. 11, 82. 401 48 Stat. 943, § 350(a), 19 U.S.C. §§ 1351–1354. 402See the continued expansion of the authority. Trade Expansion Act of 1962,

76 Stat. 872, § 201, 19 U.S.C. § 1821; Trade Act of 1974, 88 Stat. 1982, as amended,

19 U.S.C. §§ 2111, 2115, 2131(b), 2435. Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices

of GATT, constrained itself in considering implementing legislation, creating a ‘‘fasttrack’’ procedure under which legislation is brought up under a tight timetable and

without the possibility of amendment. 19 U.S.C. §§ 2191–2194. 403 143 U.S. 649 (1892).

giers to prevent pirate attacks on United States shipping. 393 Perhaps the first formal authorization in advance of an executive

agreement was enactment of a statute that permitted the Postmaster General to ‘‘make arrangements with the Postmasters in

any foreign country for the reciprocal receipt and delivery of letters

and packets, through the post offices.’’ 394 Congress has also approved, usually by resolution, other executive agreements, such as

the annexing of Texas and Hawaii and the acquisition of Samoa. 395

A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and

other countries for the securing of protection for patents, copyrights, and trademarks. 396

Reciprocal Trade Agreements.—But the most copious source

of executive agreements has been legislation which provided authority for the entering into of reciprocal trade agreements with

other nations. 397 Such agreements in the form of treaties providing

for the reciprocal reduction of duties subject to implementation by

Congress were frequently entered into, 398 but beginning with the

Tariff Act of 1890 399 Congress began to insert provisions authorizing the Executive to bargain over reciprocity with no necessity of

subsequent legislative action. The authority was widened in successive acts. 400 Then, in the Reciprocal Trade Agreements Act of

1934, 401 Congress authorized the President to enter into agreements with other nations for reductions of tariffs and other impediments to international trade and to put the reductions into effect

through proclamation. 402

The Constitutionality of Trade Agreements.—In Field v.

Clark, 403 this type of legislation was sustained against the objection that it attempted an unconstitutional delegation ‘‘of both legis-
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404 Id., 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which

the Court sustained a series of implementing actions by the President pursuant to

executive agreements with Iran in order to settle the hostage crisis. The Court

found that Congress had delegated to the President certain economic powers underlying the agreements and that his suspension of claims powers had been implicitly

ratified over time by Congress’ failure to set aside the asserted power. Also see

Weinberger v. Rossi, 456 U.S. 25, 29–30 n. 6 (1982). 405 224 U.S. 583 (1912). 406 Id., 601.

lative and treaty-making powers.’’ The Court met the first objection

with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it

met with a curt rejection: ‘‘What has been said is equally applicable

to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the

third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the

President.’’ 404 Although two Justices disagreed, the question has

never been revived. However, in B. Altman & Co. v. United

States, 405 decided twenty years later, a collateral question was

passed upon. This was whether an act of Congress which gave the

federal circuit courts of appeal jurisdiction of cases in which ‘‘the

validity or construction of any treaty . . . was drawn in question’’

embraced a case involving a trade agreement which had been made

under the sanction of Tariff Act of 1897. Said the Court: ‘‘While it

may be true that this commercial agreement, made under authority

of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United

States, it was an international compact, negotiated between the

representatives of two sovereign nations and made in the name

and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, it was a compact authorized by the Congress

of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the

Circuit Court of Appeals Act, and, where its construction is directly

involved, as it is here, there is a right of review by direct appeal

to this court.’’ 406

The Lend-Lease Act.—The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of

the two departments, the field of foreign relations, and took place

at a time when war appeared to be in the offing and was in fact

only a few months away. The legislation referred to is the Lend-
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407 55 Stat. 31. 408 E.g., 48 Stat. 1182 (1934), authorizing the President to accept membership

for the United States in the International Labor Organization. 409See E. CORWIN, op. cit., n. 44, 216. 410W. MCCLURE, op. cit., n. 393, 13–14.

Lease Act of March 11, 1941, 407 by which the President was empowered for something over two years—and subsequently for additional periods whenever he deemed it in the interest of the national

defense to do so—to authorize ‘‘the Secretary of War, the Secretary

of the Navy, or the head of any other department or agency of the

Government,’’ to manufacture in the government arsenals, factories, and shipyards, or ‘‘otherwise procure,’’ to the extent that

available funds made possible, ‘‘defense articles’’—later amended to

include foodstuffs and industrial products—and ‘‘sell, transfer title

to, exchange, lease, lend, or otherwise dispose of,’’ the same to the

‘‘government of any country whose defense the President deems

vital to the defense of the United States,’’ and on any terms that

he ‘‘deems satisfactory.’’ Under this authorization the United States

entered into Mutual Aid Agreements whereby the Government furnished its allies in World War II forty billions of dollars worth of

munitions of war and other supplies.

International Organizations.—Overlapping of the treatymaking power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions

approving the United States joining of international organizations 408 and participating in international conventions. 409

Executive Agreements Authorized by Treaties

Arbitration Agreements.—In 1904–1905, Secretary of State

John Hay negotiated a series of treaties providing for the general

arbitration of international disputes. Article II of the treaty with

Great Britain, for example, provided as follows: ‘‘In each individual

case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of

the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure.’’ 410 The

Senate approved the British treaty by the constitutional majority

having, however, first amended it by substituting the word ‘‘treaty’’

for ‘‘agreement.’’ President Theodore Roosevelt, characterizing the

‘‘ratification’’ as equivalent to rejection, sent the treaties to repose

in the archives. ‘‘As a matter of historical practice,’’ Dr. McClure

comments, ‘‘the compromis under which disputes have been arbitrated include both treaties and executive agreements in goodly
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411 Id., 14. 412 1 W. WILLOUGHBY, op. cit., n. 294, 543. 413 A Decade of American Foreign Policy, S. Doc. No. 123, 81st Cong., 1st Sess.,

126 (1950). 414 Id., 158.

numbers,’’ 411 a statement supported by both Willoughby and

Moore. 412

Agreements Under the United Nations Charter.—Article

43 of the United Nations Charter provides: ‘‘1. All Members of the

United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining

international peace and security. 2. Such agreement or agreements

shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be

negotiated as soon as possible on the initiative of the Security

Council. The y shall be concluded between the Security Council and

Members or between the Security Council and groups of Members

and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.’’ 413 This

time the Senate did not boggle over the word ‘‘agreement.’’

The United Nations Participation Act of December 20, 1945,

implements these provisions as follows: ‘‘The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress

by appropriate Act or joint resolution, providing for the numbers

and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights

of passage, to be made available to the Security Council on its call

for the purpose of maintaining international peace and security in

accordance with article 43 of said Charter. The President shall not

be deemed to require the authorization of the Congress to make

available to the Security Council on its call in order to take action

under article 42 of said Charter and pursuant to such special

agreement or agreements the armed forces, facilities, or assistance

provided for therein: Provided, That nothing herein contained shall

be construed as an authorization to the President by the Congress

to make available to the Security Council for such purpose armed

forces, facilities, or assistance in addition to the forces, facilities,

and assistance provided for in such special agreement or agreements.’’ 414
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415Wilson v. Girard, 354 U.S. 524 (1957). 416 Reid v. Covert, 354 U.S. 1, 16–17 (1957) (plurality opinion); id., 66 (Justice

Harlan concurring). 417 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1397. 418S. CRANDALL, op. cit., n. 264, ch. 8; see also W. MCCLURE, op. cit., n. 393, chs.

1, 2.

Status of Forces Agreements.—Negotiated pursuant to authorizations contained in treaties between the United States and

foreign nations in the territory of which American troops and their

dependents are stationed, these Agreements afford the United

States a qualified privilege, which may be waived, of trying by

court martial soldiers and their dependents charged with commission of offenses normally within the exclusive, criminal jurisdiction

of the foreign signatory power. When the United States, in conformity with the waiver clause in such an Agreement, consented to

the trial in a Japanese court of a soldier charged with causing the

death of a Japanese woman on a firing range in that country, the

Court could ‘‘find no constitutional barrier’’ to such action. 415 However, at least five of the Supreme Court Justices were persuaded

to reject at length the contention that such Agreements could sustain, as necessary and proper for their effectuation, implementing

legislation subsequently found by the Court to contravene constitutional guaranties set forth in the Bill of Rights. 416

Executive Agreements on the Sole Constitutional Authority

of the President

Many types of executive agreements comprise the ordinary

daily grist of the diplomatic mill. Among these are such as apply

to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story’s

words, ‘‘the mere private rights of sovereignty.’’ 417 Crandall lists

scores of such agreements entered into with other governments by

the authorization of the President. 418 Such agreements were ordinarily directed to particular and comparatively trivial disputes and

by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the

‘‘protocol’’ which marks a stage in the negotiation of a treaty, and

the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country’s destiny. In consequence particularly of our participation in World War II and our immersion

in the conditions of international tension which prevailed both be-
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419 Id., 49–50. 420 Id., 81–82. 421Tucker v. Alexandroff, 183 U.S. 424, 435 (1902). 422 Id., 467. The first of these conventions, signed July 29, 1882, had asserted

its constitutionality in very positive terms. Q. WRIGHT, op. cit., n. 302, 239 (quoting

Watts v. United States, 1 Wash. Terr. 288, 294 (1870)). 423 Id., 245.

fore and after the war, Presidents have entered into agreements

with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing

they have acted without considerable support from precedent.

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid

before the Senate with a query as to whether it was within the

President’s power, or whether advice and consent of the Senate

wwas required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the

President without there having been a formal exchange of ratifications. 419 Of a kindred type, and owing much to the President’s capacity as Commander-in-Chief, was a series of agreements entered

into with Mexico between 1882 and 1896 according each country

the right to pursue marauding Indians across the common border. 420 Commenting on such an agreement, the Court remarked, a

bit uncertainly: ‘‘While no act of Congress authorizes the executive

department to permit the introduction of foreign troops, the power

to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander

in chief of the military and naval forces of the United States. It

may be doubted, however, whether such power could be extended

to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.’’ 421 Justice Gray and

three other Justices were of the opinion that such action by the

President must rest upon express treaty or statute. 422

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the

outset of war with Spain, the President proclaimed that the United

States would consider itself bound for the duration by the last

three principles of the Declaration of Paris, a course which, as Professor Wright observes, ‘‘would doubtless go far toward establishing

these three principles as international law obligatory upon the

United States in future wars.’’ 423 Hostilities with Spain were

brought to an end in August, 1898, by an armistice the conditions
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424S. CRANDALL, op. cit., n. 264, 103–104. 425 Id., 104. 426 1 W. WILLOUGHBY, op. cit., n. 294, 539. 427W. MCCLURE, op. cit., n. 393, 98. 428 Id., 96–97. 429 Id., 98–99.

of which largely determined the succeeding treaty of peace, 424 just

as did the Armistice of November 11, 1918, determine in great

measure the conditions of the final peace with Germany in 1918.

It was also President McKinley who in 1900, relying on his own

sole authority as Commander-in-Chief, contributed a land force of

5,000 men and a naval force to cooperate with similar contingents

from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the

Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers. 425 Commenting

on the Peking protocol Willoughby quotes with approval the following remark: ‘‘This case is interesting, because it shows how the

force of circumstances compelled us to adopt the European practice

with reference to an international agreement, which, aside from

the indemnity question, was almost entirely political in character

. . . purely political treaties are, under constitutional practice in

Europe, usually made by the executive alone. The situation in

China, however, abundantly justified President McKinley in not

submitting the protocol to the Senate. The remoteness of Peking,

the jealousies between the allies, and the shifting evasive tactics of

the Chinese Government, would have made impossible anything

but an agreement on the spot.’’ 426

It was during this period, too, that John Hay, as McKinley’s

Secretary of State, initiated his ‘‘Open Door’’ policy, by notes to

Great Britain, Germany, and Russia, which were soon followed by

similar notes to France, Italy and Japan. These in substance asked

the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of

the others; and all responded favorably. 427 Then, in 1905, the first

Roosevelt, seeking to arrive at a diplomatic understanding with

Japan, instigated an exchange of opinions between Secretary of

War Taft, then in the Far East, and Count Katsura, amounting to

a secret treaty, by which the Roosevelt administration assented to

the establishment by Japan of a military protectorate in Korea. 428

Three years later, Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to

uphold the status quo in the Pacific and maintain the principle of

equal opportunity for commerce and industry in China. 429 Meantime, in 1907, by a ‘‘Gentleman’s Agreement,’’ the Mikado’s govern-
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430 Id., 99–100. 431 Id., 140–144. 432 Id., 391. 433 Id., 391–393. Attorney General Jackson’s defense of the presidential power

to enter into the arrangement placed great reliance on the President’s ‘‘inherent’’

powers under the Commander-in-Chief clause and as sole organ of foreign relations

but ultimately found adequate statutory authority to take the steps deemed desirable. 39 Ops. Atty. Gen. 484 (1940).

ment had agreed to curb the emigration of Japanese subjects to the

United States, thereby relieving the Washington government from

the necessity of taking action that would have cost Japan loss of

face. The final result of this series of executive agreements touching American relations in and with the Far East was the product

of President Wilson’s diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917,

by which the United States recognized Japan’s ‘‘special interests’’

in China, and Japan assented to the principle of the Open Door in

that country. 430

The Litvinov Agreement.—The executive agreement attained

its modern development as an instrument of foreign policy under

President Franklin D. Roosevelt, at times threatening to replace

the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President’s first

important utilization of the executive agreement device took the

form of an exchange of notes on November 16, 1933, with Maxim

M. Litvinov, the USSR Commissar for Foreign Affairs, whereby

American recognition was extended to the Soviet Union and certain

pledges made by each official. 431

The Hull-Lothian Agreement.—With the fall of France in

June, 1940, President Roosevelt entered that summer into two executive agreements the total effect of which was to transform the

role of the United States from one of strict neutrality toward the

European war to one of semi-belligerency. The first agreement was

with Canada and provided for the creation of a Permanent Joint

Board on Defense which would ‘‘consider in the broad sense the defense of the north half of the Western Hemisphere.’’ 432 Second, and

more important than the first, was the Hull-Lothian Agreement of

September 2, 1940, under which, in return for the lease for ninetynine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government

fifty over-age destroyers which had been reconditioned and

recommissioned. 433 And on April 9, 1941, the State Department, in

consideration of the just-completed German occupation of Denmark, entered into an executive agreement with the Danish min-
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434 4 Dept. State Bull. 443 (1941). 435See A Decade of American Foreign Policy, Basic Documents 1941–1949, S.

Doc. No. 123, 81st Congress, 1st sess. (1950), pt. 1. 436For a congressional attempt to evaluate the extent of such commitments, see

United States Security Agreements and Commitments Abroad, Hearings Before a

Subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st sess.

(1969), 10 pts.; see also U.S. Commitments to Foreign Powers, Hearings Before the

Senate Foreign Relations Committee on S. Res. 151, 90th Congress, 1st sess. (1967). 437The ‘‘National Commitments Resolution,’’ S. Res. 85, 91st Congress, 1st

sess., passed by the Senate June 25, 1969. See also S. Rept. No. 797, 90th Congress,

1st sess. (1967). See the discussion of these years in CRS Study, op. cit., n. 262, 169–

202.438 In 1918, Secretary of State Lansing assured the Senate Foreign Relations

Committee that the Lansing-Ishii Agreement had no binding force on the United

States, that it was simply a declaration of American policy so long as the President

and State Department might choose to continue it. 1 W. WILLOUGHBY, op. cit.,

n. 294, 547. In fact, it took the Washington Conference of 1921, two formal treaties,

and an exchange of notes to eradicate it, while the ‘‘Gentlemen’s Agreement’’ was

finally ended after 17 years only by an act of Congress. W. MCCLURE, op. cit., n. 393,

97, 100. 439See E. BYRD, op. cit., n. 292, 151–157.

ister in Washington, whereby the United States acquired the right

to occupy Greenland for purposes of defense. 434

The Post-War Years.—Post-war diplomacy of the United

States was greatly influenced by the executive agreements entered

into at Cairo, Teheran, Yalta, and Potsdam. 435 For a period, the

formal treaty—the signing of the United Nations Charter and the

entry into the multinational defense pacts, like NATO, SEATO,

CENTRO, and the like—reestablished itself, but soon the executive

agreement, as an adjunct of treaty arrangement or solely through

presidential initiative, again became the principal instrument of

United States foreign policy, so that it became apparent in the

1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves. 436

Congressional disquietitude did not result in anything more substantial than passage of a ‘‘sense of the Senate’’ resolution expressing a desire that ‘‘national commitments’’ be made more solemnly

in the future than in the past. 437

The Domestic Obligation of Executive Agreements

When the President enters into an executive agreement, what

sort of obligation is thereby imposed upon the United States? That

international obligations of potentially serious consequences may

be imposed is obvious and that such obligations may linger for long

periods of time is equally obvious. 438 But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned? 439 Executive agreements entered into pursuant to congressional authorization and probably
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440 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d

Cir., 1919); 1 W. WILLOUGHBY, op. cit., n. 294, 589. The State Department held the

same view. 5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW (Washington: 1944),

426.441 224 U.S. 583 (1912). 442 301 U.S. 324 (1937). 443 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 444 Id., 330–332. 445 315 U.S. 203 (1942).

through treaty obligations present little doctrinal problem; those

arrangements which the President purports to bind the Nation

with solely on the basis of his constitutional powers, however, do

raise serious questions.

Until recently, it was the view of most judges and scholars that

this type of executive agreement did not become the ‘‘law of the

land’’ pursuant to the supremacy clause because the treaty format

was not adhered to. 440 A different view seemed to underlay the Supreme Court decision in B. Altman & Co. v. United States, 441 in

which it was concluded that a jurisdictional statute reference to

‘‘treaty’’ encompassed an executive agreement. The idea flowered in

United States v. Belmont, 442 where the Court, in an opinion by

Justice Sutherland, following on his Curtiss-Wright 443 opinion,

gave domestic effect to the Litvinov Agreement. At issue was

whether a district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet

Union, for certain moneys which had once been the property of a

Russian metal corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the

Court ruled. The President’s act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, ‘‘as the sole

organ’’ of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did state

laws and policies make any difference in such a situation, for while

the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds ‘‘in the case of all international compacts and agreements from the very fact that complete

power over international affairs is in the National Government and

is not and cannot be subject to any curtailment or interference on

the part of the several States.’’ 444

In United States v. Pink, 445 decided five years later, the same

course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled

under the Executive Agreement of 1933 to recover the assets of the

New York branch of a Russian insurance company. The company
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argued that the decrees of confiscation of the Soviet Government

did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New

York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts.

The power to remove such obstacles to full recognition as settlement of claims of our nationals was ‘‘a modest implied power of the

President who is the ‘sole organ of the Federal Government in the

field of international relations’. . . . It was the judgment of the political department that full recognition of the Soviet Government

required the settlement of outstanding problems including the

claims of our nationals. . . . We would usurp the executive function

if we held that the decision was not final and conclusive on the

courts.

‘‘It is, of course, true that even treaties with foreign nations

will be carefully construed so as not to derogate from the authority

and jurisdiction of the States of this nation unless clearly necessary

to effectuate the national policy. . . . But state law must yield

when it is inconsistent with, or impairs the policy or provisions of,

a treaty or of an international compact or agreement. . . . Then,

the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the forum . . .

must give way before the superior Federal policy evidenced by a

treaty or international compact or agreement. . . .

‘‘The action of New York in this case amounts in substance to

a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our

constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would ‘imperil the amicable relations between governments and vex the peace of nations.’

. . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government

has diligently endeavored to establish. . . .

‘‘No State can rewrite our foreign policy to conform to its own

domestic policies. Power over external affairs is not shared by the

States; it is vested in the national government exclusively. It need

not be so exercised as to conform to State laws or State policies,

whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitu-
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446 Id., 229–234. Chief Justice Stone and Justice Roberts dissented. 447The decision in Dames & Moore v. Regan, 453 U.S. 654 (1981), is rich in

learning on many topics involving executive agreements, but the Court’s conclusion

that Congress had either authorized various presidential actions or had long acquiesced in others leaves the case standing for little on our particular issue of this section.448 But see United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir., 1953),

wherein Chief Judge Parker held that an executive agreement entered into by the

President without congressional authorization or ratification could not displace domestic law inconsistent with such agreement. The Supreme Court affirmed on other

grounds and declined to consider this matter. 348 U.S. 296 (1955). 449There were numerous variations in language, but typical was § 3 of S.J. Res.

1, as reported by the Senate Judiciary Committee, 83d Congress, 1st sess. (1953),

which provided: ‘‘Congress shall have power to regulate all executive and other

agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.’’ The

limitation relevant on this point was in § 2, which provided: ‘‘A treaty shall become

effective as internal law in the United States only through legislation which would

be valid in the absence of treaty.’’ 450 United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868).

tional sphere, seeks enforcement of its foreign policy in the

courts.’’ 446

No Supreme Court decision subsequent to Belmont and Pink is

available for consideration. 447 Whether the cases in fact turned on

the particular fact that the executive agreement in question was incidental to the President’s right to recognize a foreign state, despite

the language which equates treaties and executive agreements for

purposes of domestic law, cannot be known. Certainly, executive

agreements entered into solely on the authority of the President’s

constitutional powers are not the law of the land because of the

language of the supremacy clause, and the absence of any congressional participation denies them the political requirements they

may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law. 448

This status was another element in the movement for a constitutional amendment in the 1960s to limit the President’s powers in

this field, a movement that ultimately failed. 449

THE EXECUTIVE ESTABLISHMENT

Office

‘‘An office is a public station, or employment, conferred by the

appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.’’ 450

Ambassadors and Other Public Ministers.—The term ‘‘ambassadors and other public ministers,’’ comprehends ‘‘all officers

having diplomatic functions, whatever their title or designa-
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451 7 Ops. Atty. Gen. 168 (1855).

452 It was so assumed by Senator William Maclay. THE JOURNAL OF WILLIAM

MACLAY, E. Maclay ed. (New York: 1890), 109–110.

tion.’’ 451 It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to

them whenever the appointing authority—the President and Senate—deemed desirable. 452 During the first sixty-five years of the

Government, Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the

President. Indeed, during the administrations of Washington,

Adams and Jefferson, and the first term of Madison, no mention

occurs in any appropriation, even of ministers of a specified rank

at this or that place, but the provision for the diplomatic corps consisted of so much money ‘‘for the expenses of foreign intercourse,’’

to be expended at the discretion of the President. In Madison’s second term, the practice was introduced of allocating special sums to

the several foreign missions maintained by the Government, but

even then the legislative provisions did not purport to curtail the

discretion of the President in any way in the choice of diplomatic

agents.

In 1814, however, when President Madison appointed, during

a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent the theory on which the above legislation was based

was drawn into question. Inasmuch, it was argued, as these offices

had never been established by law, no vacancy existed to which the

President could constitutionally make a recess appointment. To

this argument, it was answered that the Constitution recognizes

‘‘two descriptions of offices altogether different in their nature, authorized by the constitution—one to be created by law, and the

other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices.

Of the second, are Ambassadors, other public Ministers, and Consuls. The first descriptions organize the Government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and

how they become vacant, may always be ascertained with perfect

precision. Not so with the second description. They depend for their

original existence upon the law, but are the offspring of the state

of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United
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453 26 ANNALS OF CONGRESS 694–722 (1814) (quotation appearing at 699); 4

LETTERS AND OTHER WRITINGS OF JAMES MADISON (Philadelphia: 1865), 350–353. 454 10 Stat. 619, 623. 455 7 Ops. Atty. Gen. 186, 220 (1855). 456 60 Stat. 999, superseded by the Foreign Service Act of 1980, P. L. 96–465,

94 Stat. 2071, 22 U.S.C. § 3901 et seq.

States have relations with all other independent powers; and the

management of those relations is vested in the Executive.’’ 453

By the opening section of the act of March 1, 1855, it was provided that ‘‘from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent

of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,’’ with a specified annual

compensation for each, ‘‘to the following countries. . . .’’ In the body

of the act was also this provision: ‘‘The President shall appoint no

other than citizens of the United States, who are residents thereof,

or who shall be abroad in the employment of the Government at

the time of their appointment. . . .’’ 454 The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions,

was recommendatory only. It was ‘‘to say, that if, and whenever,

the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary

to Great Britain, or to Sweden, the compensation of that minister

shall be so much and no more.’’ 455

This line of reasoning is only partially descriptive of the facts.

The Foreign Service Act of 1946, 456 pertaining to the organization

of the foreign service, diplomatic as well as consular, contains detailed provisions as to grades, salaries, promotions, and, in part, as

to duties. Under the terms thereof the President, by and with the

advice and consent of the Senate, appoints ambassadors, ministers,

foreign service officers, and consuls, but in practice the vast proportion of the selections are made in conformance to recommendations

of a Board of the Foreign Service.

Presidential Diplomatic Agents

What the President may have lost in consequence of the intervention of Congress in this field, he has made good through his

early conceded right to employ, in the discharge of his diplomatic

function, so-called ‘‘special,’’ ‘‘personal,’’ or ‘‘secret’’ agents without

consulting the Senate. When President Jackson’s right to resort to

this practice was challenged in the Senate in 1831, it was defended

by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. ‘‘The practice of

appointing secret agents,’’ said Livingston, ‘‘is coeval with our exist-
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457 11 T. BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS (Washington:

1860), 221. 458S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104.

ence as a nation, and goes beyond our acknowledgement as such

by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of

their most important services in the capacity of secret agents, with

full powers. Franklin, Adams, Lee, were only commissioners; and

in negotiating a treaty with the Emperor of Morocco, the selection

of the secret agent was left to the Ministers appointed to make the

treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made

a treaty, which was ratified by the Ministers at Paris.

‘‘These instances show that, even prior to the establishment of

the Federal Government, secret plenipotentiaries were known, as

well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795,

in the recess of the Senate, by letters patent under the great broad

seal of the United States, and the signature of their President,

(that President being George Washington,) countersigned by the

Secretary of State, David Humphreys was appointed commissioner

plenipotentiary for negotiating a treaty of peace with Algiers. By

instructions from the President, he was afterwards authorized to

employ Joseph Donaldson as agent in that business. In May, of the

same year, he did appoint Donaldson, who went to Algiers, and in

September of the same year concluded a treaty with the Dey and

Divan, which was confirmed by Humphreys, at Lisbon, on the 28th

November in the same year, and afterwards ratified by the Senate,

and an act passed both Houses on 6th May, 1796, appropriating a

large sum, twenty-five thousand dollars annually, for carrying it

into effect.’’ 457

The precedent afforded by Humphreys’ appointment without

reference to the Senate has since been multiplied many times, 458

as witness the mission of A. Dudley Mann to Hanover and other

German states in 1846, of the same gentleman to Hungary in 1849,

of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan

in 1852, of J. H. Blount to Hawaii in 1893. The last named case

is perhaps the most extreme of all. Blount, who was appointed

while the Senate was in session but without its advice and consent,

was given ‘‘paramount authority’’ over the American resident minister at Hawaii and was further empowered to employ the military

and naval forces of the United States, if necessary to protect Amer-
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459S. Rept. No. 227, 53d Congress, 2d Sess. (1894), 25. At the outset of our entrance into World War I President Wilson dispatched a mission to ‘‘Petrograd,’’ as

it was then called, without nominating the Members of it to the Senate. It was

headed by Mr. Elihu Root, with ‘‘the rank of ambassador,’’ while some of his associates bore ‘‘the rank of envoy extraordinary.’’ 460See 2 G. HOAR, AUTOBIOGRAPHY OF SEVENTY YEARS (New York: 1903), 48–

51.

ican lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which

was created to investigate the constitutional question vindicated

the President in the following terms: ‘‘A question has been made

as to the right of the President of the United States to dispatch Mr.

Blount to Hawaii as his personal representative for the purpose of

seeking the further information which the President believed was

necessary in order to arrive at a just conclusion regarding the state

of affairs in Hawaii. Many precedents could be quoted to show that

such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the

United States. . . . These precedents also show that the Senate of

the United States, though in session, need not be consulted as to

the appointment of such agents, . . . .’’ 459 The continued vitality of

the practice is attested by such names as Colonel House, the late

Norman H. Davis, who filled the role of ‘‘ambassador at large’’ for

a succession of administrations of both parties, Professor Philip

Jessup, Mr. Averell Harriman, and other ‘‘ambassadors at large’’ of

the Truman Administration, and Professor Henry Kissinger of the

Nixon Administration.

How is the practice to be squared with the express words of

the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for

special tasks, and hence do not fulfill the tests of ‘‘office’’ in the

strict sense. In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be

regularized, notwithstanding the provision of Article I, § 6, clause

2 of the Constitution, which provides that ‘‘no Senator or Representative shall . . . be appointed to any civil Office under the Authority of the United States, which shall have been created,’’ during

his term; and no officer of the United States, ‘‘shall be a Member

of either House during his Continuance in Office.’’ 460 The Treaty

of Peace with Spain, the treaty to settle the Bering Sea controversy, the treaty establishing the boundary line between Canada

and Alaska, were negotiated by commissions containing Senators

and Representatives.
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461 However, ‘‘Congress’ power . . . is inevitably bounded by the express language of Article II, cl. 2, and unless the method it provides comports with the latter,

the holders of those offices will not be ‘Officers of the United States.’’’ Buckley v.

Valeo, 424 U.S. 1, 138–139 (1976) (quoted in Freytag v. CIR, 501 U.S. 868, 883

(1991)). 462See Myers v. United States, 272 U.S. 52, 264–274 (1926) (Justice Brandeis

dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions

and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided ‘‘that the qualifications do not so limit selection and so trench upon executive choice as to be in effect

legislative designation.’’ Id., 128–129. For reiteration of Congress’ general powers,

see Buckley v. Valeo, 424 U.S. 1, 134–135 (1976); Morrison v. Olson, 487 U.S. 654,

673–677 (1988). And see United States v. Ferriera, 13 How. (54 U.S.) 40, 51 (1851). 463See data in E. CORWIN, op. cit., n. 44, 363–365. Congress has repeatedly designated individuals, sometimes by name, more frequently by reference to a particular office, for the performance of specified acts or for posts of a nongovernmental

character; e.g., to paint a picture (Jonathan Trumbull), to lay out a town, to act as

Regents of Smithsonian Institution, to be managers of Howard Institute, to select

a site for a post office or a prison, to restore the manuscript of the Declaration of

Independence, to erect a monument at Yorktown, to erect a statue of Hamilton, and

so on and so forth. Note, Power of Appointment to Public Office under the Federal

Constitution, 42 Harv. L. Rev. 426, 430–431 (1929). In his message of April 13,

1822, President Monroe stated the thesis that, ‘‘as a general principle, . . . Congress

have no right under the Constitution to impose any restraint by law on the power

granted to the President so as to prevent his making a free selection of proper persons for these [newly created] offices from the whole body of his fellow-citizens.’’ 2

J. RICHARDSON, op. cit., n. 42, 698, 701. The statement is ambiguous, but its apparent intention is to claim for the President unrestricted power in determining who

are proper persons to fill newly created offices. See the distinction drawn in Myers

v. United States, 272 U.S. 52, 128–129 (1926), quoted, op. cit., n. 462. And note that

in Public Citizen v. U. S. Dept. of Justice, 491 U.S. 440, 482–489 (1989) (concurAppointments and Congressional Regulation of Offices

That the Constitution distinguishes between the creation of an

office and appointment thereto for the generality of national offices

has never been questioned. The former is by law and takes place

by virtue of Congress’ power to pass all laws necessary and proper

for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments

and officers. 461 As an incident to the establishment of an office,

Congress has also the power to determine the qualifications of the

officer and in so doing necessarily limits the range of choice of the

appointing power. First and last, it has laid down a great variety

of qualifications, depending on citizenship, residence, professional

attainments, occupational experience, age, race, property, sound

habits, and so on. It has required that appointees be representative

of a political party, of an industry, of a geographic region, or of a

particular branch of the Government. It has confined the President’s selection to a small number of persons to be named by others. 462 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power. 463 De-
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ring), Justice Kennedy suggested the President has sole and unconfined discretion

in appointing). 464The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S.

361 (1989), numbered among its members three federal judges; the President was

to select them ‘‘after considering a list of six judges recommended to the President

by the Judicial Conference of the United States.’’ Id., 397 (quoting 28 U.S.C.

§ 991(a)). The Comptroller General is nominated by the President from a list of

three individuals recommended by the Speaker of the House of Representatives and

the President pro tempore of the Senate. Bowsher v. Synar, 478 U.S. 714, 727 (1986)

(citing 31 U.S.C. § 703(a)(2)). In Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 268–269 (1991), the

Court carefully distinguished these examples from the particular situation before it

that it condemned, but see id., 288 (Justice White dissenting), and in any event it

never actually passed on the list devices in Mistretta and Synar. The fault in Airports Authority was not the validity of lists generally, the Court condemning the device there as giving Congress control of the process, in violation of Buckley v. Valeo. 465 Buckley v. Valeo, 424 U.S. 1, 109–143 (1976). The Court took pains to observe that the clause was violated not only by the appointing process but by the

confirming process, inclusion of the House of Representatives, as well. Id., 137. See

also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991). 466 Concurrently, of course, although it may seem odd, the question of what is

a ‘‘Court[] of Law’’ for purposes of the appointments clause is unsettled. See Freytag

spite the record of the past, however, it is not at all clear that Congress may cabin the President’s discretion, at least for offices that

he considers important, by, for example, requiring him to choose

from lists compiled by others. To be sure, there are examples, but

they are not free of ambiguity. 464

But when Congress contrived actually to participate in the appointment and administrative process and provided for selection of

the members of the Federal Election Commission, two by the President, two by the Senate, and two by the House, with confirmation

of all six members vested in both the House and the Senate, the

Court unanimously held the scheme to violate the appointments

clause and the principles of separation of powers. The term ‘‘officers of the United States’’ is a substantive one requiring that any

appointee exercising significant authority pursuant to the laws of

the United States be appointed in the manner prescribed by the

appointments clause. 465 The Court did hold, however, that the

Commission so appointed and confirmed could be delegated the

powers Congress itself could exercise, that is, those investigative

and informative functions that congressional committees carry out

were properly vested in this body.

Congress is authorized by the appointments clause to vest the

appointment of ‘‘inferior Officers,’’ at its discretion, ‘‘in the President alone, in the Courts of Law, or in the Heads of Departments.’’

Principal questions arising under this portion of the clause are

‘‘Who are ‘inferior officers,’’’ and ‘‘what are the ‘‘Departments’’

whose heads may be given appointing power? 466 ‘‘[A]ny appointee
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v. CIR, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a

court of law under the clause). 467Freytag v. CIR, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 424 U.S.

1, 126 (1976)). 468 United States v. Germaine, 99 U.S. 508, 509–510 (1879) (quoted in Buckley

v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional definition of an ‘‘inferior’’ officer

is wondrously imprecise. See Freytag v. CIR, 501 U.S. 868, 880–882 (1991); Morrison v. Olson, 487 U.S. 654, 670–673 (1988). And see United States v. Eaton, 169

U.S. 331 (1898). There is another category, of course, employees, but these are lesser

functionaries subordinate to officers of the United States. Ordinarily, the term ‘‘employee’’ denotes one who stands in a contractual relationship to her employer, but

here it signifies all subordinate officials of the Federal Government receiving their

appointments at the hands of officials who are not specifically recognized by the

Constitution as capable of being vested by Congress with the appointing power.

Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United

States, 282 U.S. 344, 352–353 (1931); Burnap v. United States, 252 U.S. 512, 516–

517 (1920); Germaine, supra, 511–512. 469Freytag v. CIR, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).

exercising significant authority pursuant to the laws of the United

States is an ‘Officer of the United States,’ and must, therefore, be

appointed in the manner prescribed by § 2, cl. 2, of [Article II].’’ 467

‘‘The Constitution for purposes of appointment very clearly divides

all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals

necessary, this mode might be inconvenient, it was provided that,

in regard to officers inferior to those specially mentioned, Congress

might by law vest their appointment in the President alone, in the

courts of law, or in the heads of departments. That all persons who

can be said to hold an office under the government about to be established under the Constitution were intended to be included

within one or the other of these modes of appointment there can

be but little doubt.’’ 468

Thus, officers who are not ‘‘inferior Officers’’ must be appointed

by the President with the advice and consent of the Senate in order

to make sure that all the business of the Executive will be conducted under the supervision of officers appointed by the President

with Senate approval, i.e., principal officers. 469 Further, the Framers intended to limit the ‘‘diffusion’’ of the appointing power with

respect to inferior officers in order to promote accountability. ‘‘The

Framers understood . . . that by limiting the appointment power,

they could ensure that those who wielded it were accountable to political force and the will of the people. . . . The Appointments

Clause prevents Congress from distributing power too widely by

limiting the actors in whom Congress may vest the power to appoint. The Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. given

the inexorable presence of the administrative state, a holding that
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470Freytag v. CIR, 501 U.S. 868, 884–885 (1991). 471 Id., 886 (citing Germaine and Burnap, the opinion clause, Article II, §2, and

the 25th Amendment, which, in its § 4, referred to ‘‘executive departments’’ in a

manner that reached only cabinet-level entities). But compare id., 915–922 (Justice

Scalia concurring). 472 Id., 886(emphasis supplied). 473 Id., 886–888. Compare id., 915–919 (Justice Scalia concurring). 474 Id., 888–892. This holding was vigorously controverted by the other four Justices. Id., 901–914(Justice Scalia concurring).

every organ in the executive Branch is a department would multiply the number of actors eligible to appoint.’’ 470

Yet, even agreed on the principle, the Freytag Court split 5-to–

4 on the reason for the permissibility of the Chief Judge of the Tax

Court to appoint special trial judges. The entire Court agreed that

the Tax Court had to be either a ‘‘department’’ or a ‘‘court of law’’

in order for the authority to be exercised by the Chief Judge, and

it unanimously agreed that the statutory provision was constitutional. But, there, agreement ended. The majority was of the opinion that the Tax Court could not be a department, but it was unclear what those Justices thought a department comprehended.

Seemingly, it started from the premise that departments were

those parts of the executive establishment called departments and

headed by a cabinet officer. 471 Yet, the Court continued immediately to say: ‘‘Confining the term ‘‘Heads of Departments’’ in the

Appointments Clause to executive divisions like the Cabinet-level

departments constrains the distribution of the appointment power

just as the [IRS] Commissioner’s interpretation, in contrast, would

diffuse it. The Cabinet-level departments are limited in number

and easily identified. The heads are subject to the exercise of political oversight and share the President’s accountability to the people.’’ 472 The use of the word ‘‘like’’ in this passage suggests that it

is not just Cabinet-headed departments that are departments but

as well entities that are similar to them in some way, and its reservation of the validity of investing appointing power in the heads

of some named entities, as well as its observation that the term

‘‘Heads of Departments’’ does not embrace ‘‘inferior commissioners

and bureau officers’’ all contribute to an amorphous conception of

the term. 473 In the end, the Court sustained the challenged provision by holding that the Tax Court as an Article I court was a

‘‘Court of Law’’ within the meaning of the appointments clause. 474

The other four Justices concluded that the Tax Court, as an independent establishment in the executive branch, was a ‘‘department’’ for purposes of the appointments clause. In their view, in

the context of text and practice, the term meant, not Cabinet-level

departments, but ‘‘all independent executive establishments,’’ so

that ‘‘‘Heads of Departments’ includes the heads of all agencies im-
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475 Id., 918, 919 (Justice Scalia concurring). 476 Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839). The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is

vested. Id., 257–258; United States v. Germaine, 99 U.S. 508, 509 (1879). 477 100 U.S. 371 (1880). 478Morrison v. Olson, 487 U.S. 654, 673–677 (1988). See also Young v. United

States ex rel. Vuitton et Fils S. A., 481 U.S. 787 (1987) (appointment of private attorneys to act as prosecutors for judicial contempt judgments); Freytag v. CIR, 501

U.S. 868, 888–892 (1991) (appointment of special judges by Chief Judge of Tax

Court). 479 19 Stat. 143, 169 (1876). 480 Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id., 372–

373.

mediately below the President in the organizational structure of

the Executive Branch.’’ 475

The Freytag decision must be considered a tentative rather

than a settled construction. The close division of the Court means

that new appointments, some of which have already occurred, could

change the construction. Further guidance must be awaited.

As noted, the appointments clause also authorizes Congress to

vest the power in ‘‘Courts of Law.’’ Must the power to appoint when

lodged in courts be limited to those officers acting in the judicial

branch, as the Court first suggested? 476 But in Ex parte

Siebold, 477 the Court sustained Congress’ decision to vest the appointment of federal election supervisors, charged with preventing

fraud and rights violations in congressional elections in the South,

in courts and disavowed any thought that interbranch appointments could not be authorized under the clause. A special judicial

division was authorized to appoint independent counsels to investigate and, if necessary, prosecute charges of corruption in the executive, and the Court, in near unanimity, sustained the law, denying that interbranch appointments, in and of themselves, and leaving aside more precise separation-of-powers claims, were improper

under the clause. 478

Congressional Regulation of Conduct in Office.—Congress

has very broad powers in regulating the conduct in office of officers

and employees of the United States, especially regarding their political activities. By an act passed in 1876, it prohibited ‘‘all executive officers or employees of the United States not appointed by the

President, with the advice and consent of the Senate, . . . from requesting, giving to, or receiving from, any other officer or employee

of the Government, any money or property or other thing of value

for political purposes.’’ 479 The validity of this measure having been

sustained, 480 the substance of it, with some elaborations, was in-
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481 22 Stat. 403 (the Pendleton Act). On this law and subsequent enactments

that created the civil service as a professional cadre of bureaucrats insulated from

politics, see Developments in the Law - Public Employment, 97 Harv. L. Rev. 1611,

1619–1676 (1984). 482 Act of Aug. 24, 1912, § 6, 37 Stat. 539, 555, codified as amended at 5 U.S.C.

§ 7513. The protection was circumscribed by the limited enforcement mechanisms

under the Civil Service Commission, which were gradually strengthened. See id.,

n. 481, 97 Harv. L. Rev., 1630–1631. 483 92 Stat. 1111 (codified in scattered sections of titles 5, 10, 15, 28, 31, 38, 39,

and 42 U.S.C.). For the long development, see id., n. 481, 97 Harv. L. Rev., 1632–

1650.484 54 Stat. 767 (1940), then 5 U.S.C. § 7324(a). By P. L. 103–94, §§ 2(a), 12, 107

Stat. 1001, 1011, to be codified at 5 U.S.C. §§ 7321–7325, Congress liberalized the

restrictions of the Act, allowing employees to take an active part in political management or in political campaigns, subject to specific exceptions. The 1940 law,

§ 12(a), 54 Stat. 767–768, also applied the same broad ban to employees of federally

funded state and local agencies, but this provision was amended in 1974 to bar state

and local government employees only from running for public office in partisan elections. Act of Oct. 15, 1974, P. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502. 485 330 U.S. 75 (1947). See also CSC. v. National Assn. of Letter Carriers, 413

U.S. 548 (1973), in which the constitutional attack was renewed, in large part based

on the Court’s expanding jurisprudence of First Amendment speech, but the Act was

again sustained. A ‘‘little Hatch Act’’ of a State, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973). 486 53 Stat. 1147, 5 U.S.C. § 7311.

corporated in the Civil Service Act of 1883. 481 The Lloyd-La

Follette Act in 1912 began the process of protecting civil servants

from unwarranted or abusive removal by codifying ‘‘just cause’’

standards previously embodied in presidential orders, defining ‘‘just

causes’’ as those that would promote the ‘‘efficiency of the service.’’ 482 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished the

Civil Service Commission, and divided its responsibilities, its management and administrative duties to the Office of Personnel Management and its review and protective functions to the Merit Systems Protection Board. 483

By the Hatch Act, 484 all persons in the executive branch of the

Government, or any department or agency thereof, except the

President and Vice President and certain ‘‘policy determining’’ officers, were forbidden to ‘‘take an active part in political management or political campaigns,’’ although they were still permitted to

‘‘express their opinions on all political subjects and candidates.’’ In

United Public Workers v. Mitchell, 485 these provisions were upheld

as ‘‘reasonable’’ against objections based on the First, Fifth, Ninth,

and Tenth Amendments.

The Loyalty Issue.—By § 9A of the Hatch Act of 1939, federal

employees were disqualified from accepting or holding any position

in the Government or the District of Columbia, if they belonged to

an organization that he knew advocated, the overthrow of our constitutional form of government. 486 The 79th Congress followed up
518 ART. II—EXECUTIVE DEPARTMENT

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487See Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956), 60. 488 5 U.S.C. § 3333. The loyalty disclaimer oath was declared unconstitutional

in Stewart v. Washington, 301 F. Supp. 610 (D.C.D.C. 1969), and the Government

elected not to appeal. The strike disclaimer oath was voided in National Association

of Letter Carriers v. Blount, 305 F. Supp, 546 (D.C.D.C. 1969); after noting probable

jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on the Government’s motion. 400 U.S. 801 (1970). The actual prohibition on strikes, however, has

been sustained. United Federation of Postal Clerks v. Blount, 325 F. Supp. 879

(D.C.D.C. 1971), affd. per curiam, 404 U.S. 802 (1971). 489 E.O. 9835, 12 FED. REG. 1935 (1947). 490 E.O. 10450, 18 FED. REG. 2489 (1953). 491See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956). 492P. L. 95–521, tits. I-III, 92 Stat. 1824–1861. The Act was originally codified

in three different titles, 2, 5, and 28, corresponding to legislative, executive, and judicial branch personnel, but by P. L. 101–194, title II, 103 Stat. 1725 (1989), one

comprehensive title, as amended, applying to all covered federal personnel was enacted. 5 U.S.C.App. §§ 101–111. 493See op. cit., n. 481, 97 Harv. L. Rev., 1660–1669. 494 Id., 1661 (citing S. Rept. 170, 95th Cong., 2d sess. (1978), 21–22).

this provision with a rider to its appropriation acts forbidding the

use of any appropriated funds to pay the salary of any person who

advocated, or belonged to an organization which advocated, the

overthrow of the Government by force, or of any person who engaged in a strike or who belonged to an organization which asserted the right to strike against the Government. 487 These provisos ultimately wound up in permanent law requiring all government employees to take oaths disclaiming either disloyalty or

strikes as a device for dealing with the Government as an employer. 488 Along with the loyalty-security programs initiated by

President Truman 489 and carried forward by President Eisenhower, 490 these measures reflected the Cold War era and the fear

of subversion and espionage following the disclosures of several

such instances here and abroad. 491

Financial Disclosure and Limitations.—By the Ethics in

Government Act of 1978, 492 Congress required high-level federal

personnel to make detailed, annual disclosures of their personal financial affairs. 493 The aims of the legislation are to enhance public

confidence in government, to demonstrate the high level of integrity of government employees, to deter and detect conflicts and interests, to discourage individuals with questionable sources of income from entering government, and to facilitate public appraisal

of government employees’ performance in light of their personal financial interests. 494 Despite the assertions of some that employee

privacy interests are needlessly invaded by the breadth of disclosures, to date judicial challenges have been unsuccessful, absent
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495 Id., 1664–1669. The Ethics Act also expanded restrictions on

postemployment by imposing bans on employment, varying from a brief period to

an out-and-out lifetime ban in certain cases. Id., 1669–1676. The 1989 revision enlarged and expanded on these provisions. 103 Stat. 1716–1724, amending 18 U.S.C.

§ 207.496 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5

U.S.C.App. §§ 501–505. 497 5 U.S.C.App. § 505(3). 498 NTEU v. United States, 990 F.2d 1271 (D.C.Cir.), pet. for reh. en banc den.,

3 F.3d 1555 (D.C.Cir. 1993). 499Shoemaker v. United States, 147 U.S. 282, 301 (1893). 500Marbury v. Madison, 1 Cr. (5 U.S.) 137, 155–156 (1803) (Chief Justice Marshall). Marshall’s statement that the appointment ‘‘is the act of the President,’’ conflicts with the more generally held and sensible view that when an appointment is

made with its consent, the Senate shares the appointing power. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 1525; Matter of Hennen, 13 Pet. (38 U.S.) 230, 259 (1839).

even a Supreme Court review. 495 One provision, however, has generated much opposition and invalidation, so far, in the courts.

Under § 501(b) of the Ethics in Government Act, 496 there is imposed a ban on Members of Congress or any officer or employee of

the Government, regardless of salary level, taking any ‘‘honorarium,’’ which is defined as ‘‘a payment of money or anything of

value for an appearance, speech or article (including a series of appearances, speeches, or articles if the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with the Government) . . . .’’ 497 The

statute, even interpreted in accordance with the standards applicable to speech restrictions on government employees, has been held

to be overbroad and not sufficiently tailored to serve the governmental interest to be promoted by it. 498 Only a Supreme Court review, of course, will finally resolve the matter.

Legislation Increasing Duties of an Officer.—Finally, Congress may devolve upon one already in office additional duties

which are germane to his office without thereby ‘‘rendering it necessary that the incumbent should be again nominated and appointed.’’ Such legislation does not constitute an attempt by Congress to seize the appointing power. 499

Stages of Appointment Process

Nomination.—The Constitution appears to distinguish three

stages in appointments by the President with the advice and consent of the Senate. The first is the ‘‘nomination’’ of the candidate

by the President alone; the second is the assent of the Senate to

the candidate’s ‘‘appointment;’’ and the third is the final appointment and commissioning of the appointee, by the President. 500

Senate Approval.—The fact that the power of nomination belongs to the President alone prevents the Senate from attaching
520 ART. II—EXECUTIVE DEPARTMENT

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501 3 Ops. Atty. Gen. 188 (1837). 502 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Boston: 1833), 1525–1526; 5 WORKS OF THOMAS JEFFERSON, P. Ford ed., (New

York: 1904), 161–162; 9 WRITINGS OF JAMES MADISON, G. Hunt ed. (New York:

1910), 111–113. 503 286 U.S. 6 (1932). 504 E. CORWIN, op. cit., n. 44, 77.

conditions to its approval of an appointment, such as it may do to

its approval of a treaty. In the words of an early opinion of the Attorney General: ‘‘The Senate cannot originate an appointment. Its

constitutional action is confined to the simple affirmation or rejection of the President’s nominations, and such nominations fail

whenever it rejects them. The Senate may suggest conditions and

limitations to the President, but it cannot vary those submitted by

him, for no appointment can be made except on his nomination,

agreed to without qualifications or alteration.’’ 501 This view is

borne out by early opinion, 502 as well as by the record of practice

under the Constitution.

When Senate Consent Is Complete.—Early in January,

1931, the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the

Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within ‘‘the next two

days of actual executive session of the Senate’’ and the recall of the

notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon

the discharge of their duties, the President responded with a refusal, saying: ‘‘I cannot admit the power in the Senate to encroach

upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.’’

The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third,

against whom it instructed the District Attorney of the District of

Columbia to institute quo warranto proceedings in the Supreme

Court of the District. In United States v. Smith, 503 the Supreme

Court overruled the proceedings on the ground that the Senate had

never before attempted to apply its rule in the case of an appointee

who had already been installed in office on the faith of the Senate’s

initial consent and notification to the President. In 1939, the late

President Roosevelt rejected a similar demand by the Senate, an

action that was unchallenged. 504

SECTION 3. The President * * * shall Commission all the

Officers of the United States.
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505Marbury v. Madison, 1 Cr. (5 U.S.) 137, 157–158, 173 (1803). 506 12 Ops. Atty. Gen. 306 (1867). 507 It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee. 508See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 (1832); 3:673 (1841);

4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 (1866); 12:455 (1868); 14:563

(1875); 15:207 (1877); 16:523 (1880); 18:28 (1884); 19:261 (1889); 26:234 (1907);

30:314 (1914); 33:20 (1921). In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the

previous session of Congress, but this distinction was rejected in the following Ops.

Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In harmony with the

opinions is United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). For the early practice with reference to recess appointments, see 2 G. HAYNES, THE SENATE OF THE

UNITED STATES, (Boston: 1938), 772–778.

Commissioning the Officer.—This, as applied in practice,

does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage but merely

that it is he and no one else who has the power to commission

them, which he may do at his discretion. The sealing and delivery

of the commission is, on the other hand, by the doctrine of Marbury

v. Madison, in the case both of appointee by the President and Senate and by the President alone, a purely ministerial act which has

been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed. 505 By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus

poenitentiae and may withhold it; nor is the appointee in office till

he has this commission. 506 This is probably the correct doctrine. 507

Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by

granting Commissions which shall expire at the End of their

next Session.

Recess Appointments

Setting out from the proposition that the very nature of the executive power requires that it shall always be ‘‘in capacity for action,’’ Attorneys General early came to interpret ‘‘happen’’ to mean

‘‘happen to exist,’’ and long continued practice securely establishes

this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted,

the President may fill it in the way described. 508 But a Senate ‘‘recess’’ does not include holidays, or very brief temporary adjourn-
522 ART. II—EXECUTIVE DEPARTMENT

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509 23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 (1898). How long a ‘‘recess’’ must be to be actually a recess, a question here as in the pocket veto area,

is uncertain. 3 O. L. C. 311, 314 (1979). A ‘‘recess,’’ however, may be merely ‘‘constructive,’’ as when a regular session succeeds immediately upon a special session.

It was this kind of situation that gave rise to the once famous Crum incident. See

3 W. WILLOUGHBY, op. cit., n. 294, 1508–1509. 510 5 U.S.C. § 5503. The provision has been on the books, in somewhat stricter

form, since 12 Stat. 646 (1863). 511 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. den.,

475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth of data

on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Warren, Brennan, and Stewart, were so appointed and later confirmed after participation on the

Court. The Senate in 1960 adopted a ‘‘sense-of-the-Senate’’ resolution suggesting the

practice was not a good idea. 106 CONG. REC. 18130–18145 (1960). 512See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258

(1904); 28:95 (1909); 38:298 (1935). 513 272 U.S. 52 (1926).

ments, 509 while by an act of Congress, if the vacancy existed when

the Senate was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed

by the Senate. 510

Judicial Appointments.—Federal judges clearly fall within

the terms of the recess-appointments clause. But, unlike with other

offices, a problem exists. Article III judges are appointed ‘‘during

good behavior,’’ subject only to removal through impeachment. A

judge, however, who is given a recess appointment may be ‘‘removed’’ by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, she

may be subject to influence not felt by other judges. Nonetheless,

a constitutional attack upon the status of a federal district judge,

given a recess appointment and then withdrawn as a nominee, was

rejected by a federal court. 511

Ad Interim Designations.—To be distinguished from the

power to make recess appointments is the power of the President

to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation

is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in

the lack of such provision, both theory and practice concede the

President the power to make the designation. 512

The Removal Power

The Myers Case.—Save for the provision which it makes for

a power of impeachment of ‘‘civil officers of the United States,’’ the

Constitution contains no reference to a power to remove from office,

and until its decision in Myers v. United States, 513 on October 25,

1926, the Supreme Court had contrived to side-step every occasion
ART. II—EXECUTIVE DEPARTMENT 523

Sec. 3—Powers and Duties of the President Cl. 3—Recess Appointment

514 19 Stat. 78, 80.

for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers

case was the effectiveness of an order of the Postmaster General,

acting by direction of the President, to remove from office a firstclass postmaster, in the face of the following provision of an act of

Congress passed in 1876: ‘‘Postmasters of the first, second, and

third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall

hold their offices for four years unless sooner removed or suspended according to law.’’ 514

A divided Court, speaking through Chief Justice Taft, held the

order of removal valid and the statutory provision just quoted void.

The Chief Justice’s main reliance was on the so-called ‘‘decision of

1789,’’ the reference being to Congress’ course that year in inserting in the act establishing the Department of State a proviso which

was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by

Madison, who invoked in support of it the opening words of Article

II and the President’s duty to ‘‘take care that the laws be faithfully

executed.’’ Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice

regarding the removal power down to the Civil War, which was

held to yield the following results: ‘‘That article II grants to the

President the executive power of the Government, i.e., the general

administrative control of those executing the laws, including the

power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative

power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior

offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on

condition that it does vest, their appointment in other authority

than the President with the Senate’s consent; that the provisions

of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established

as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident

does not by implication extend to removals the Senate’s power of

checking appointments; and finally that to hold otherwise would
524 ART. II—EXECUTIVE DEPARTMENT

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515 Id., 272 U.S., 163–164. 516The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of ‘‘estate in office,’’

from which the conclusion followed that the impeachment power was the only power

of removal intended by the Constitution; second, that the power of removal was an

incident of the power of appointment and hence belonged, at any rate in the absence

of legal or other provision to the contrary, to the appointing authority; third, that

Congress could, by virtue of its power ‘‘to make all laws which shall be necessary

and proper,’’ etc., determine the location of the removal power; fourth, that the

President by virtue of his ‘‘executive power’’ and his duty ‘‘to take care that the laws

be faithfully executed,’’ possesses the power of removal over all officers of the United

States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views

were put forward, with the final result that a clause was incorporated in the measure that implied, as pointed out above, that the head of the department would be

removable by the President at his discretion. Contemporaneously, and indeed until

after the Civil War, this action by Congress, in other words ‘‘the decision of 1789,’’

was interpreted as establishing ‘‘a practical construction of the Constitution’’ with

respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the ‘‘correct interpretation’’ of the Constitution was that the power of removal was always an incident

of the power of appointment, and that therefore in the case of officers appointed by

the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. For an

extensive review of the issue at the time of Myers, see Corwin, The President’s Removal Power Under the Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL

LAW (Chicago: 1938), 1467.

517 Id., 272 U.S., 134. Note the parallelism of the arguments from separationof-powers and the President’s ability to enforce the laws in the decision rendered

on Congress’ effort to obtain a role in the actual appointment of executive officers

in Buckley v. Valeo, 424 U.S. 1, 109–143 (1976), and in many of the subsequent separation-of-powers decisions.

make it impossible for the President, in case of political or other

differences with the Senate or Congress, to take care that the laws

be faithfully executed.’’ 515

The holding in the Myers case boils down to the proposition

that the Constitution endows the President with an illimitable

power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on

the Chief Justice’s part to set history aright—or awry. 516 Rather,

it was the concern that he voiced in the following passage in his

opinion: ‘‘There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged

in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important

of his subordinates in their most important duties must, therefore,

control the interpretation of the Constitution as to all appointed by

him.’’ 517 Thus spoke the former President Taft, and the result of
ART. II—EXECUTIVE DEPARTMENT 525

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518 ANNALS OF CONGRESS 611–612 (1789). 519 295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United

States, Humphrey having, like Myers before him, died in the course of his suit for

salary. Proponents of strong presidential powers long argued that Humphrey’s Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935),

both cases argued and decided contemporaneously, reflected the anti-New Deal

views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 Yearbook of the Supreme Court Historical Society 103, 106–110. Now-Justice Scalia continues to adhere to his views

and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 707–711, 723–727 (1988) (dissenting).

his prepossession was a rule which, as was immediately pointed

out, exposed the so-called ‘‘independent agencies,’’ the Interstate

Commerce Commission, the Federal Trade Commission, and the

like, to presidential domination.Unfortunately, the Chief Justice,

while professing to follow Madison’s leadership, had omitted to

weigh properly the very important observation which the latter had

made at the time regarding the office of Comptroller of the Treasury. ‘‘The Committee,’’ said Madison, ‘‘has gone through the bill

without making any provision respecting the tenure by which the

comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it.

It will be necessary to consider the nature of this office, to enable

us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as

well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness

and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of

this kind should not hold his office at the pleasure of the executive

branch of the government.’’ 518 In Humphrey’s Executor v. United

States, 519 the Court seized upon ‘‘the nature of the office’’ concept

and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case.—The material element of this case was

that Humphrey, a member of the Federal Trade Commission, was

on October 7, 1933, notified by President Roosevelt that he was ‘‘removed’’ from office, the reason being their divergent views of public

policy. In due course, Humphrey sued for salary. Distinguishing

the Myers case, Justice Sutherland, speaking for the unanimous

Court, said: ‘‘A postmaster is an executive officer restricted to the

performance of executive functions. He is charged with no duty at

all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an

office is merely one of the units in the executive department and,

hence, inherently subject to the exclusive and illimitable power of
526 ART. II—EXECUTIVE DEPARTMENT

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520 Id., 295 U.S., 627–629, 631–632. Justice Sutherland’s statement, quoted

above, that a Federal Trade Commissioner ‘‘occupies no place in the executive department’’ was not necessary to the decision of the case, was altogether out of line

with the same Justice’s reasoning in Springer v. Philippine Islands, 277 U.S. 189,

201–202 (1928), and seems later to have caused the author of it much perplexity.

See R. CUSHMAN, THE INDEPENDENT REGULATORY COMMISSION (New York: 1941),

447–448. As Professor Cushman adds: ‘‘Every officer and agency created by Congress to carry laws into effect is an arm of Congress. . . . The term may be a synonym; it is not an argument.’’ Id., 451.

removal by the Chief Executive, whose subordinate and aide he is.

. . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no

part of the executive power vested by the Constitution in the President.

‘‘The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied

in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the

statute, must be free from executive control. . . . We think it plain

under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of

those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes,

as an appropriate incident, power to fix the period during which

they shall continue in office, and to forbid their removal except for

cause in the meantime. For it is quite evident that one who holds

his office only during the pleasure of another, cannot be depended

upon to maintain an attitude of independence against the latter’s

will. . . .

‘‘The result of what we now have said is this: Whether the

power of the President to remove an officer shall prevail over the

authority of Congress to condition the power by fixing a definite

term and precluding a removal except for cause, will depend upon

the character of the office; the Myers decision, affirming the power

of the President alone to make the removal, is confined to purely

executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or

more of the causes named in the applicable statute.’’ 520

The Wiener Case.—Curtailment of the President’s power of

removal, so liberally delineated in the Myers decision, was not to
ART. II—EXECUTIVE DEPARTMENT 527

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521 357 U.S. 349 (1958). 522 28 U.S.C. § 516. 523 28 U.S.C. §§ 509, 510, 515, 533. 524 38 FED. REG. 14688 (1973). The Special Prosecutor’s status and duties were

the subject of negotiation between the Administration and the Senate Judiciary

Committee. Nomination of Elliot L. Richardson to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973), 143 passim. 525The formal documents effectuating the result are set out in 9 WKLY. COMP.

OF PRES. DOCS. 1271–1272 (1973). 526 38 FED. REG. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 FED. REG. 30739, as amended by 38 FED. REG. 32805.

See Nomination of William B. Saxbe to be Attorney General, Hearings before the

Senate Judiciary Committee, 93d Congress, 1st sess. (1973).

end with the Humphrey case. Unresolved by the latter was the

question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed

with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative

answer in Wiener v. United States. 521 Emphasizing therein that

the duties of the War Claims Commission were wholly adjudicatory

and its determinations, final and exempt from review by any other

official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he

lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the

life of that agency.

The Watergate Controversy.—A dispute arose regarding the

discharge of the Special Prosecutor appointed to investigate and

prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government, 522 and it further authorized

him to appoint subordinate officers to assist him in the discharge

of his duties. 523 Pursuant to presidential direction, the Attorney

General designated a Watergate Special Prosecutor with broad

power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and

the regulations provided that the Special Prosecutor ‘‘will not be removed from his duties except for extraordinary improprieties on his

part.’’ 524 On October 20, following the resignations of the Attorney

General and the Deputy Attorney General, the Solicitor General as

Acting Attorney General formally dismissed the Special Prosecutor 525 and three days later rescinded the regulation establishing

the office. 526 In subsequent litigation, it was held, by a federal district court, that the firing by the Acting Attorney General had vio-
528 ART. II—EXECUTIVE DEPARTMENT

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527 Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973). 528 418 U.S. 683, 692–697 (1974). 529The first question remained unstated, but the second issue was extensively

debated in Special Prosecutor, Hearings before the Senate Judiciary Committee, 93d

Congress, 1st sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d

Congress, 1st sess. (1973). 530 Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654

(1988). This is not to say that the language and analytical approach of Synar are

not in conflict with that of Morrison; it is to say that the results are consistent and

the analytical basis of the latter case does resolve the ambiguity present in some

of the reservations in Synar.

lated the regulations, which were in force at the time and which

had to be followed until they were rescinded. 527 The Supreme

Court in United States v. Nixon 528 seemed to confirm this analysis

by the district court in upholding the authority of the new Special

Prosecutor to take the President to court to obtain evidence in the

President’s possession. Left unsettled were two questions, the

power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President. 529 When Congress acted to create an office,

first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

The Removal Power Rationalized.— The tension that had

long been noticed between Myers and Humphrey’s Executor, at least

in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important,

purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of

persons appointed under the appointments clause. 530 Myers actually struck down only a law involving the Senate in the removal

of postmasters, but the broad-ranging opinion had long stood for

the proposition that inherent in the President’s obligation to see to

the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey’s Executor had

qualified this proposition by upholding ‘‘for cause’’ removal restrictions for members of independent regulatory agencies, at least in

part on the assertion that they exercised ‘‘quasi-’’ legislative and

adjudicative functions as well as some form of executive function.

Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution

of the laws as a core executive function in recent cases had cast
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531 478 U.S. 714 (1986).

532The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L.

99–177, 99 Stat. 1038.

533 Id., 478 U.S., 729, 730. ‘‘By placing the responsibility for execution of the . . .

Act in the hands of an officer who is subject to removal only by itself, Congress in

effect has retained control over the execution of the Act and has intruded into the

executive function.’’ Id., at 734. Because the Act contained contingency procedures

for implementing the budget reductions in the event that the primary mechanism

was invalidated, the Court rejected the suggestion that it should invalidate the 1921

removal provision rather than the Deficit Act’s conferral of executive power in the

Comptroller General. To do so would frustrate congressional intention and significantly alter the Comptroller General’s office. Id., 734–36.

534 Id., 726.

535 Id., 725 n. 4.

536 487 U.S. 654 (1988).

considerable doubt on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar, 531 the Court held that when Congress itself retains the power to remove an official it could not vest him

with the exercise of executive power. Invalidated in Synar were

provisions of the l985 ‘‘Gramm-Rudman-Hollings’’ Deficit Control

Act 532 vesting in the Comptroller General authority to prepare a

detailed report on projected federal revenue and expenditures and

to determine mandatory across-the-board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory

targets. By a 1921 statute, the Comptroller General was removable

by joint congressional resolution for, inter alia, ‘‘inefficiency,’’ ‘‘neglect of duty,’’ or ‘‘malfeasance.’’ ‘‘These terms are very broad,’’ the

Court noted, and ‘‘could sustain removal of a Comptroller General

for any number of actual or perceived transgressions of the legislative will.’’ Consequently, the Court determined, ‘‘the removal powers over the Comptroller General’s office dictate that he will be

subservient to Congress.’’ 533

Relying expressly upon Myers, the Court concluded that ‘‘Congress cannot reserve for itself the power of removal of an officer

charged with the execution of the laws except by impeachment.’’ 534

But Humphrey’s Executor was also cited with approval, and to the

contention that invalidation of this law would cast doubt on the

status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of ‘‘for cause’’ removal by the President rather than congressional involvement as in the instance of the Comptroller General. 535 This reconciliation of Myers and Humphrey’s Executor was

made clear and express in Morrison v. Olson. 536
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537Pub. L. 95–521, title VI, 92 Stat. 1867, as amended by Pub. L. 97–409, 96

Stat. 2039, and Pub. L. 100–191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

That case sustained the independent counsel statute. 537 Under

that law, the independent counsel, appointed by a special court

upon application by the Attorney General, may be removed by the

Attorney General ‘‘only for good cause, physical disability, mental

incapacity, or any other condition that substantially impairs the

performance of such independent counsel’s duties.’’ Inasmuch as

the counsel was clearly exercising ‘‘purely’’ executive duties, in the

sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. But, said the

Court, Myers stood only for the proposition that Congress could not

involve itself in the removal of executive officers. Its broad dicta

that the President must be able to remove at will officers performing ‘‘purely’’ executive functions had not survived Humphrey’s Executor. It was true, the Court admitted, that, in the latter case, it

had distinguished between ‘‘purely’’ executive officers and officers

who exercise ‘‘quasi-legislative’’ and ‘‘quasi-judicial’’ powers in

marking the line between officials who may be presidentially removed at will and officials who can be protected through some form

of good cause removal limits. ‘‘[B]ut our present considered view is

that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s

power to remove an official cannot be made to turn on whether or

not that official is classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will

by the President, but to ensure that Congress does not interfere

with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully

executed’ under Article II. Myers was undoubtedly correct in its

holding, and in its broader suggestion that there are some ‘purely

executive’ officials who must be removable by the President at will

if he is to be able to accomplish his constitutional role. . . . At the

other end of the spectrum from Myers, the characterization of the

agencies in Humphrey’s Executor and Wiener as ‘quasi-legislative’

or ‘quasi-judicial’ in large part reflected our judgment that it was

not essential to the President’s proper execution of his Article II

powers that these agencies be headed up by individuals who were

removable at will. We do not mean to suggest that an analysis of

the functions served by the officials at issue is irrelevant. But the

real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his con-
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538 Id., 487 U.S., 685–93. 539 But notice the analysis followed by three Justices in Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482–489 (1989) (concurring), and consider

the possible meaning of the recurrence to formalist reasoning in Granfinanciera,

S.A. v. Nordberg, 492 U.S. 33, (1989). And see Justice Scalia’s utilization of the

‘‘take care’’ clause in pronouncing limits on Congress’ constitutional power to confer

citizen standing in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142–2146 (1992),

although it is not clear that he had a majority of the Court with him. 540 Indeed, the Court explicitly analogized the civil enforcement powers of the

independent agencies to the prosecutorial powers wielded by the independent counsel. Morrison v. Olson, 487 U.S. 654, 692 n. 31 (1988). 541 United States v. Perkins, 116 U.S. 483 (1886), cited with approval in Myers

v. United States, 272 U.S. 52, 161–163, 164 (1926), and Morrison v. Olson, 487 U.S.

654, 689 n. 27 (1988).

stitutional duty, and the functions of the officials in question must

be analyzed in that light.’’ 538

The Court discerned no compelling reason to find the good

cause limit to interfere with the President’s performance of his duties. The independent counsel did exercise executive, law-enforcement functions, but the jurisdiction and tenure of each counsel

were limited in scope and policymaking or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to

ensure the ‘‘faithful execution’’ of the laws by assuring that the

counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself

in the removal of officials performing executive functions. It is also

established that, in creating offices in the executive branch and in

creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or

another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices

which may be essential to the President’s performance of his constitutionally assigned powers and duties, so that limits on removal

would be impermissible. There are no bright lines marking off one

office from the other, but decision requires close analysis. 539

As a result of these cases, the long-running controversy with

respect to the legitimacy of the independent agencies appears to

have been settled, 540 although it appears likely that the controversies with respect to congressional-presidential assertions of power

in executive agency matters are only beginning.

Other Phases of Presidential Removal Power.—Congress

may ‘‘limit and restrict the power of removal as it deems best for

the public interest’’ in the case of inferior officers. 541 However, in

the absence of specific legislative provision to the contrary, the

President may remove at his discretion an inferior officer whose
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542Parsons v. United States, 167 U.S. 324 (1897). 543Shurtleff v. United States, 189 U.S. 311 (1903). 544 Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States,

177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922). 545Morgan v. TVA, 28 F. Supp. 732 (D.E.D. Tenn. 1939), affd., 115 F. 2d 990

(6th Cir. 1940), cert. den. 312 U.S. 701 (1941). 546 E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890). 547 United States v. Lovett, 328 U.S. 303 (1946). 548 E.g., 2 J. RICHARDSON, op. cit., n. 42, 847. 549 United States v. Lovett, 328 U.S. 303, 313 (1946).

term is limited by statute, 542 or one appointed with the consent of

the Senate. 543 He may remove an officer of the army or navy at

any time by nominating to the Senate the officer’s successor, provided the Senate approves the nomination. 544 In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation

of charges which he had levelled at his fellow directors. 545 Although no such cause of removal by the President was stated in the

act creating TVA, the President’s action, being reasonably required

to promote the smooth functioning of TVA, was within his duty to

‘‘take care that the laws be faithfully executed.’’ So interpreted, it

did not violate the principle of administrative independence.

The Presidential Aegis: Demands for Papers

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in

litigation brought against them 546 or pressing litigation in their

behalf, 547 refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage, 548 challenging the constitutional

validity of legislation which he deemed detrimental to their interests. 549 One of the principal efforts throughout our history has

been his efforts to spread his own official immunity to them, by resisting actions of the courts or of congressional committees to require divulgence of confidential communications from or to the

President, that is, communications that Presidents choose to regard

as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself and the locus of the dispute shifted to the courts.

Following years in which claims of executive privilege were resolved one way or another on the basis of the political strengths of

the parties, in primarily interbranch disputes, the issue was finally

the subject of the first judicial elaboration of the doctrine to take

place in our history; the doctrine of executive privilege was at once

recognized as existing and having a constitutional foundation while
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550For a good statement of the basis of the doctrine, the areas in which it is

asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive, Hearings before the Senate Judiciary Subcommittee on

Separation of Powers, 92d Congress, 1st sess. (1971), 420–443, (then-Assistant Attorney General Rehnquist). Former Attorney General Rogers, in stating the position

of the Eisenhower Administration, identified five categories of executive privilege:

(1) military and diplomatic secrets and foreign affairs, (2) information made confidential by statute, (3) information relating to pending litigation, and investigative

files and reports, (4) information relating to internal government affairs privileged

from disclosure in the public interest, and (5) records incidental to the making of

policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers. The Power of the President To

Withhold Information from the Congress, Memorandum of the Attorney General,

Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d sess.

(Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the

at the same time it was definitely bounded in its assertion by the

principle of judicial review. Because of these cases, because of the

intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President,

either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its

power to impeach the President, Vice President, or civil officers of

the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the

same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need

may over-balance the presidential claim to a greater degree than

that of a private individual. The judicial precedents are so meager

yet that it is not possible so to state, however.

The doctrine of executive privilege defines the authority of the

President to withhold documents or information in his possession

or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any

such privilege, but it has been claimed that the privilege derives

from the constitutional provision of separation of powers and from

a necessary and proper concept respecting the carrying out of the

duties of the presidency imposed by the Constitution. Historically,

assertion of the doctrine has been largely confined to the areas of

foreign relations, military affairs, pending investigations, and

intragovernmental discussions. 550 The current and ongoing litiga-
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Executive Branch, 44 A.B.A.J. 941 (1958). In the most expansive version of the doctrine, Attorney General Kleindeinst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information

at all. Executive Privilege, Secrecy in Government, Freedom of Information, Hearings

before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st sess. (1973), I:18 passim. For a strong argument that the

doctrine lacks any constitutional or other legal basis, see R. BERGER, EXECUTIVE

PRIVILEGE: A CONSTITUTIONAL MYTH (Cambridge: 1974). The book, however, precedes the Court decision in Nixon. 551There are also, of course, instances of claimed access for other purposes, for

which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 552, provides

generally for public access to governmental documents. In 522(b), however, nine

types of information are exempted from coverage, several of which relate to the

types as to which executive privilege has been asserted, such as matter classified

pursuant to executive order, interagency or intra-agency memoranda or letters, and

law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC

v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe

Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F. 2d 820

(D.C.Cir. 1973), cert. den., 415 U.S. 977 (1974). 552See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of

Criminal Procedure. The earliest judicial dispute involving what later became

known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187

(C.C.D. Va. 1807), in which defendant sought certain exculpatory material from

President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance. 553 E.g., Alderman v. United States, 394 U.S. 165 (1968). 554Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.C.D.C.

1974), was held entitled to access to material in the custody of the President wherein the President’s decision to dismiss the prosecution would probably have been

unavailing.

tion involved, of course, the claim of confidentiality of conversations

between the President and his aides.

Private Access to Government Information.—Private parties may seek to obtain information from the Government either to

assist in defense to criminal charges brought by the Government

or in civil cases to use in either a plaintiff’s or defendant’s capacity

in suits with the Government or between private parties. 551 In

criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process

clause is guaranteed access to relevant exculpatory information in

the possession of the prosecution. 552 Generally speaking, when the

prosecution is confronted with a judicial order to turn over information to a defendant that it does not wish to make available, the

prosecution has the option of dropping the prosecution and thus

avoiding disclosure, 553 but that alternative may not always be

available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into

the confines of the Department of Justice could this possibility

have been realized. 554
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555 345 U.S. 1 (1953).

556 Id., 7–8, 9–10, 11. Withholding of information relating to governmental employees’ clearances, disciplines, or discharges often raise claims of such privilege.

E.g., Webster v. Doe, 486 U.S. 592 (1988); U. S.Dept. of the Navy v. Egan, 484 U.S.

518 (1988). After the Court approved and implemented a governmental secrecy

agreement with some of its employees, Snepp v. United States, 444 U.S. 507 (1980),

the Government expanded its secrecy program with respect to classified and ‘‘classifiable’’ information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive

of the President constitutional power to manage the executive. National Federation

of Federal Employees v. United States, 688 F.Supp. 671 (D.D.C.), vacated and remanded sub nom., American Foreign Service Assn. v. Garfinkel, 490 U.S. 153

(1989). For similar assertions in the context of plaintiffs suing the Government for

interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the Government under the state-secrets privilege, see Halkin v. Helms,

598 F.2d 1 (D.C.Cir. 1978); Id., 690 F.2d 977 (D.C.Cir. 1982); Ellsberg v. Mitchell,

709 F.2d 51 (D.C.Cir. 1983). For review and analysis, see Quint, The Separation of

Powers Under Carter, 62 Tex. L. Rev. 785, 875–880 (1984). And see Totten v. United

States, 92 U.S. 105 (1875).

557 United States v. Nixon, 418 U.S. 683, 692–697 (1974).

The civil type of case is illustrated in United States v. Reynolds, 555 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force

plane testing secret electronics equipment. Plaintiffs sought discovery of the Air Force’s investigation report on the accident, and the

Government resisted on a claim of privilege as to the nondisclosure

of military secrets. The Court accepted the Government’s claim,

holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so

far as to force disclosure of the thing the privilege is designed to

protect. The showing of necessity of the private litigant for the information should govern in each case how far the trial court should

probe; where the necessity is strong, the court should require a

strong showing of the appropriateness of the privilege claim but

once satisfied of the appropriateness no matter how compelling the

need the privilege prevails. 556

Prosecutorial and Grand Jury Access to Presidential

Documents.—Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal

situation, was held able to take the President to court to enforce

subpoenas for tape recordings of presidential conversations and

other documents relating to the commission of criminal actions. 557

While holding that the subpoenas were valid and should be obeyed,

the Supreme Court recognized the constitutional status of execu-
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558 Id., 707–708. Presumably, the opinion recognizes a similar power existent in

the federal courts to preserve the confidentiality of judicial deliberations, cf. New

York Times Co. v. United States, 403 U.S. 713, 752 n. 3 (1971) (Chief Justice Burger

dissenting), and in each House of Congress to treat many of its papers and documents as privileged. Cf. Soucie v. David, 448 F. 2d 1067, 1080, 1081–1982 (C.A.D.C.

1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review

Policies, Hearings before the Senate Committee on Armed Services, 87th Congress,

2d sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F. 2d 184 (5th

Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976); United States v. Ehrlichman,

389 F. Supp. 95 (D.D.C., 1974).

tive privilege, insofar as the assertion of that privilege relates to

presidential conversations and indirectly to other areas as well.

Presidential communications, the Court said, have ‘‘a presumptive privilege.’’ ‘‘The privilege is fundamental to the operation of

government and inextricably rooted in the separation of powers

under the Constitution.’’ The operation of government is furthered

by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. ‘‘A President and those who assist him

must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be

unwilling to express except privately.’’ The separation-of-powers

basis derives from the conferral upon each of the branches of the

Federal Government of powers to be exercised by each of them in

great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of

enumerated powers. 558

However, the Court continued, the privilege is not absolute.

The federal courts have the power to construe and delineate claims

arising under express and implied powers. Deference is owed the

constitutional decisions of the other branches, but it is the function

of the courts to exercise the judicial power, ‘‘to say what the law

is.’’ The Judicial Branch has the obligation to do justice in criminal

prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those

clearly privileged, are to be made available. Thus, while the President’s claim of privilege is entitled to deference, the courts must

when the claim depends solely on a broad, undifferentiated claim

of confidentiality balance two sets of interests.

‘‘In this case we must weigh the importance of the general

privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in

preserving confidentiality is weighty indeed and entitled to great

respect. However we cannot conclude that advisers will be moved
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559 418 U.S. 683, 711–713. Essentially the same decision had been arrived at in

the context of subpoenas of tapes and documentary evidence for use before a grand

jury in Nixon v. Sirica, 487 F. 2d 700 (D.C.Cir. 1973). 560 433 U.S. 425, 446–455 (1977). See id., 504, 545 (Chief Justice Burger and

Justice Rehnquist dissenting). The decision does resolve one outstanding question;

assertion of the privilege is not limited to incumbent Presidents. Id., 447–449. Subsequently, a court held that former-President Nixon had had such a property expectancy in his papers that he was entitled to compensation for their seizure under the

Act. Nixon v. United States, 978 F.2d 1269 (D.C.Cir. 1992).

to temper the candor of their remarks by the infrequent occasions

of disclosure because of the possibility that such conversations will

be called for in the context of a criminal prosecution.

‘‘On the other hand, the allowance of the privilege to withhold

evidence that is demonstrably relevant in a criminal trial would cut

deeply into the guarantee of due process of law and gravely impair

the basic function of the courts. A President’s acknowledged need

for confidentiality in the communications of his office is general in

nature, whereas the constitutional need for production of relevant

evidence in a criminal proceeding is specific and central to the fair

adjudication of a particular criminal case in the administration of

justice. . . .

‘‘We conclude that when the ground for asserting privilege as

to subpoenaed materials sought for use in a criminal trial is based

only on the generalized interest in confidentiality, it cannot prevail

over the fundamental demands of due process of law in the fair administration of criminal justice.’’ 559

Obviously, this decision leaves much unresolved. It does recognize the constitutional status of executive privilege as a doctrine.

It does affirm the power of the courts to resolve disputes over

claims of the privilege. But it leaves unsettled just how much

power the courts have to review claims of privilege to protect what

are claimed to be military, diplomatic, or sensitive national security

secrets. It does not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases; nor

does it touch upon denial of information to Congress.

Neither does the Court’s decision in Nixon v. Administrator of

General Services 560 elucidate any of these or other questions that

may be raised to any great degree. In upholding the Presidential

Recordings and Materials Preservation Act, which directed the

Government to take custody of former President Nixon’s records to

be screened, catalogued, and processed by professional archivists,

in GSA, the Court viewed the assertion of privilege as directed only

to the facial validity of the requirement of screening by executive

branch professionals and not at all to be related to the possible

public disclosure of some of the records. The decision does go be-
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561See the extensive discussion in Shane, Legal Disagreement and Negotiation

in a Government of Laws: The Case of Executive Privilege Claims Against Congress,

71 Minn. L. Rev. 461 (1987).

yond the first decision’s recognition of the overbalancing force of

the necessity for disclosure in criminal trials to find ‘‘comparable’’

‘‘adequate justifications’’ for congressional enactment of the law, including the preservation of the materials for legitimate historical

and governmental purposes, the rationalization of preservation and

access to public needs as well as each President’s wishes, the preservation of the materials as a source for facilitating a full airing

of the events leading to the former President’s resignation for public and congressional understanding, and preservation for the light

shed upon issues in civil or criminal litigation. While interestingly

instructive, the decision may be so attuned to the narrow factual

circumstances that led to the Act’s passage as to leave the case of

little value as precedent.

Congressional Access to Executive Branch Information.—

Presidents and Congresses have engaged in protracted disputes

over provision of information from the former to the latter, but the

basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied. 561 The basic premise of the concept of executive

privilege, as it is applied to resist requests for information from

Congress as from private parties with or without the assistance of

the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere

independent of control or direction of the other branches. In this

context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, preservation of

investigative records. Counterpoised against this assertion of presidential privilege is the power of Congress to obtain information

upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating

function of Congress, and in the final analysis to impeach the

President, the Vice President, and all civil officers of the Federal

Government.

Until quite recently, all disputes between the President and

Congress with regard to requests for information were settled in

the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign

Activities, however, elected to seek a declaratory judgment in the
ART. II—EXECUTIVE DEPARTMENT 539

Sec. 3—Powers and Duties of the President Cl. 3—Legislative Role of the President

562Senate Select Committee on Presidential Campaign Activities v. Nixon, 370

F. Supp. 521 (D.D.C.), affd., 498 F. 2d 725 (D.C.Cir. 1974). 563President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 WKLY. COMP. PRES. DOCS. 592 (1974).

The impeachment article and supporting material are set out in H. Rept. No. 93–

1305, 93d Cong., 2d sess. (1974). 564For consideration of various proposals by which Congress might proceed, see

Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. Legis. 145 (1984); Brand

& Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means

by Which Congress May Enforce Investigative Demands Against Executive Branch

Officials, 36 Cath. U. L. Rev. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 Duke L. J. 1333.

courts with respect to the President’s obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of

basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives. 562 The House Judiciary Committee subpoenas were similarly

rejected by the President, but instead of going to the courts for enforcement the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. 563 Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the

bills did not purport to define executive privilege, although some

indicate a standard by which the federal court is to determine

whether the material sought is lawfully being withheld from Congress. 564 The controversy gives little indication at the present time

of abating, and it may be assumed that whenever the Executive

and Congress are controlled by different political parties there will

be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.

SECTION 3. He shall from time to time give to the Congress

Information on the State of the Union, and recommend to their

Consideration such Measures as he shall judge necessary and

expedient; he may, on extraordinary Occasions, convene both

Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may

adjourn them to such Time as he shall think proper; he shall

receive Ambassadors and other public Ministers; he shall take

Care that the Laws be faithfully executed, and * * *
540 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

565 N. SMALL, SOME PRESIDENTIAL INTERPRETATIONS OF THE PRESIDENCY (Baltimore: 1932); W. BINKLEY, THE PRESIDENT AND CONGRESS (New York: 2d ed. 1962);

E. CORWIN, op. cit., n. 44, chs. 1, 7. 566The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this

general effect. See 4 J. RICHARDSON, op. cit., n. 42, 1860, 1864; 6 id., 2513–2519,

2561–2562, 2608, 2615. 567See sources cited supra, n. 565. 568Warren, Presidential Declarations of Independence, 10 B.U.L. Rev. 1 (1930);

3 W. WILLOUGHBY, op. cit., n. 294, 1488–1492. 569 7 Ops. Atty. Gen. 186, 209 (1855). 570 5 J. MOORE, INTERNATIONAL LAW DIGEST (Washington: 1906), 15–19.

LEGISLATIVE ROLE OF THE PRESIDENT

This clause, which imposes a duty rather than confers a power,

is the formal basis of the President’s legislative leadership, which

has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than

any pronounced change in constitutional interpretation. Especially

is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the

introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress. 565 It is true

that certain pre-Civil War Presidents, mostly of Whig extraction,

professed to entertain nice scruples on the score of ‘‘usurping’’ legislative powers, 566 but still earlier ones, Washington, Jefferson, and

Jackson among them, took a very different line, albeit less boldly

and persistently than their later imitators. 567 Today, there is no

subject on which the President may not appropriately communicate

to Congress, in as precise terms as he chooses, his conception of its

duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld. 568 The President has frequently summoned both

Houses into ‘‘extra’’ or ‘‘special sessions’’ for legislative purposes,

and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

THE CONDUCT OF FOREIGN RELATIONS

The Right of Reception: Scope of the Power

‘‘Ambassadors and other public ministers’’ embraces not only

‘‘all possible diplomatic agents which any foreign power may accredit to the United States,’’ 569 but also, as a practical construction

of the Constitution, all foreign consular agents, who therefore may

not exercise their functions in the United States without an exequatur from the President. 570 The power to ‘‘receive’’ ambassadors,

et cetera, includes, moreover, the right to refuse to receive them, to
ART. II—EXECUTIVE DEPARTMENT 541

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

571 Id., 4:473–548; 5:19–32. 572Opinion on the Question Whether the Senate Has the Right to Negative the

Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790,

5 WRITINGS OF THOMAS JEFFERSON, P. Ford ed. (New York: 1895), 161, 162. 573 4 J. MOORE, INTERNATIONAL LAW DIGEST (Washington: 1906), 680–681. 574This measure is now contained in 18 U.S.C. § 953. 575See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess.

(1917). The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the ‘‘Logan Act’’ are given in E. CORWIN,

op. cit., n. 44, 183–184, 430–431.

request their recall, to dismiss them, and to determine their eligibility under our laws. 571 Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

The Presidential Monopoly

Wrote Jefferson in 1790: ‘‘The transaction of business with foreign nations is executive altogether. It belongs, then, to the head

of that department, except as to such portions of it as are specially

submitted to the Senate. Exceptions are to be construed strictly.’’ 572 So when Citizen Genet, envoy to the United States from the

first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that ‘‘as the President was the only channel of

communication between the United States and foreign nations, it

was from him alone ‘that foreign nations or their agents are to

learn what is or has been the will of the nation’; that whatever he

communicated as such, they had a right and were bound to consider ‘as the expression of the nation’; and that no foreign agent

could be ‘allowed to question it,’ or ‘to interpose between him and

any other branch of government, under the pretext of either’s

transgressing their functions.’ Mr. Jefferson therefore declined to

enter into any discussion of the question as to whether it belonged

to the President under the Constitution to admit or exclude foreign

agents. ‘I inform you of the fact,’ he said, ‘by authority from the

President.’ Mr. Jefferson returned the consul’s commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed.’’ 573

The Logan Act.—When in 1798 a Philadelphia Quaker named

Logan went to Paris on his own to undertake a negotiation with

the French Government with a view to averting war between

France and the United States, his enterprise stimulated Congress

to pass ‘‘An Act to Prevent Usurpation of Executive Functions,’’ 574

which, ‘‘more honored in the breach than the observance,’’ still survives on the statute books. 575 The year following John Marshall,
542 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

576 10 ANNALS OF CONGRESS 596, 613–614 (1800). Marshall’s statement is often

cited, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 319

(1936), as if he were claiming sole or inherent executive power in foreign relations,

but Marshall carefully propounded the view that Congress could provide the rules

underlying the President’s duty to extradite. When, in 1848, Congress did enact

such a statute, the Court sustained it. Fong Yue Ting v. United States, 149 U.S.

698, 714 (1893). 577S. Doc. No. 56, 54th Congress, 2d Sess. (1897). 578 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON (Philadelphia: 1865),

611.

then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great

Britain under the 27th article of the Jay Treaty, instead of leaving

the business to the courts. He said: ‘‘The President is the sole

organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign

nation can only be made on him. He possesses the whole Executive

power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to

be performed through him.’’ 576 Ninety-nine years later, a Senate

Foreign Relations Committee took occasion to reiterate Marshall’s

doctrine with elaboration. 577

A Formal or a Formative Power.—In his attack, instigated

by Jefferson, upon Washington’s Proclamation of Neutrality in

1793, at the outbreak of war between France and Great Britain,

Madison advanced the argument that all large questions of foreign

policy fell within the ambit of Congress, by virtue of its power ‘‘to

declare war,’’ and in support of this proposition he disparaged the

presidential function of reception, in the following words: ‘‘I shall

not undertake to examine, what would be the precise extent and

effect of this function in various cases which fancy may suggest, or

which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide

for a particular mode of communication, almost grown into a right

among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their

title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would

be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it.’’ 578

The President’s Diplomatic Role.—Hamilton, although he

had expressed substantially the same view in THE FEDERALIST re-
ART. II—EXECUTIVE DEPARTMENT 543

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

579 No. 69 (J. Cooke ed. 1961), 468. 580Letter of Pacificus, No. 1, 7 WORKS OF ALEXANDER HAMILTON, J. Hamilton

ed. (New York: 1851), 76, 82–83.

garding the power of reception, 579 adopted a very different conception of it in defense of Washington’s proclamation. Writing under

the pseudonym, ‘‘Pacificus,’’ he said: ‘‘The right of the executive to

receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers

are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between

the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is

acknowledged, the treaties between the nations, so far at least as

regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important

instance of the right of the executive, to decide upon the obligations

of the country with regard to foreign nations. To apply it to the

case of France, if there had been a treaty of alliance, offensive and

defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put

the United States in a condition to become as an associate in the

war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of

the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless,

the executive cannot thereby control the exercise of that power.

The legislature is still free to perform its duties, according to its

own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things,

which ought to weigh in the legislative decision. The division of the

executive power in the Constitution, creates a concurrent authority

in the cases to which it relates.’’ 580

Jefferson’s Real Position.—Nor did Jefferson himself officially support Madison’s point of view, as the following extract from

his ‘‘minutes of a Conversation,’’ which took place July 10, 1793,

between himself and Citizen Genet, show: ‘‘He asked if they [Congress] were not the sovereign. I told him no, they were sovereign

in making laws only, the executive was sovereign in executing

them, and the judiciary in construing them where they related to
544 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

581 4 J. MOORE, INTERNATIONAL LAW DIGEST (Washington: 1906), 680–681. 582Letters of Helvidius, 5 WRITINGS OF JAMES MADISON, G. Hunt ed. (New York:

1905), 133.

their department. ‘But,’ said he, ‘at least, Congress are bound to

see that the treaties are observed.’ I told him no; there were very

few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. ‘If

he decides against the treaty, to whom is a nation to appeal?’ I told

him the Constitution had made the President the last appeal. He

made me a bow, and said, that indeed he would not make me his

compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an

idea.’’ 581

The Power of Recognition

In his endeavor in 1793 to minimize the importance of the

President’s power of reception, Madison denied that it involved cognizance of the question, whether those exercising the government

of the accrediting State had the right along with the possession. He

said: ‘‘This belongs to the nation, and to the nation alone, on whom

the government operates. . . . It is evident, therefore, that if the

executive has a right to reject a public minister, it must be founded

on some other consideration than a change in the government, or

the newness of the government; and consequently a right to refuse

to acknowledge a new government cannot be implied by the right

to refuse a public minister. It is not denied that there may be cases

in which a respect to the general principles of liberty, the essential

rights of the people, or the overruling sentiments of humanity,

might require a government, whether new or old, to be treated as

an illegitimate despotism. Such are in fact discussed and admitted

by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the

national will as the executive of the United States; and certainly

not to be brought by any torture of words, within the right to receive ambassadors.’’ 582

Hamilton, with the case of Genet before him, had taken the

contrary position, which history has ratified. In consequence of his

power to receive and dispatch diplomatic agents, but more especially the former, the President possesses the power to recognize

new states, communities claiming the status of belligerency, and

changes of government in established states; also, by the same

token, the power to decline recognition, and thereby decline diplomatic relations with such new states or governments. The affirmative precedents down to 1906 are succinctly summarized by John
ART. II—EXECUTIVE DEPARTMENT 545

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

583 1 J. MOORE, INTERNATIONAL LAW DIGEST (Washington: 1906), 243–244. See

AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987), §§ 204, 205.

Bassett Moore in his famous DIGEST, as follows: ‘‘In the preceding

review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a

precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency, the question of recognition was determined solely by the Executive. In the case of the Spanish-American

republics, of Texas, of Haiti, and of Liberia, the President, before

recognizing the new state, invoked the judgment and cooperation

of Congress; and in each of these cases provision was made for the

appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international

law, a formal recognition. In numerous other cases, the recognition

was given by the Executive solely on his own responsibility.’’ 583

The Case of Cuba.—The question of Congress’ right also to

recognize new states was prominently raised in connection with

Cuba’s final and successful struggle for independence. Beset by numerous legislative proposals of a more or less mandatory character,

urging recognition upon the President, the Senate Foreign Relations Committee, in 1897, made an elaborate investigation of the

whole subject and came to the following conclusions as to this

power: ‘‘The ‘recognition’ of independence or belligerency of a foreign power, technically speaking, is distinctly a diplomatic matter.

It is properly evidenced either by sending a public minister to the

Government thus recognized, or by receiving a public minister

therefrom. The latter is the usual and proper course. Diplomatic relations with a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy

sent for the purpose. The reception of this envoy, as pointed out,

is the act of the President alone. The next step, that of sending a

public minister to the nation thus recognized, is primarily the act

of the President. The Senate can take no part in it at all, until the

President has sent in a nomination. Then it acts in its executive

capacity, and, customarily, in ‘executive session.’ The legislative

branch of the Government can exercise no influence over this step

except, very indirectly, by withholding appropriations. . . . Nor can

the legislative branch of the Government hold any communications

with foreign nations. The executive branch is the sole mouthpiece

of the nation in communication with foreign sovereignties.

‘‘Foreign nations communicate only through their respective

executive departments. Resolutions of their legislative departments
546 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

584S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20–22.

585Said Senator Nelson of Minnesota: ‘‘The President has asked us to give him

the right to make war to expel the Spaniards from Cuba. He has asked us to put

that power in his hands; and when we are asked to grant that power—the highest

power given under the Constitution—we have the right, the intrinsic right, vested

in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised.’’ 31 CONG. REC. 3984 (1898).

upon diplomatic matters have no status in international law. In the

department of international law, therefore, properly speaking, a

Congressional recognition of belligerency or independence would be

a nullity. . . . Congress can help the Cuban insurgents by legislation in many ways, but it cannot help them legitimately by mere

declarations, or by attempts to engage in diplomatic negotiations,

if our interpretation of the Constitution is correct. That it is correct

. . . [is] shown by the opinions of jurists and statesmen of the

past.’’ 584 Congress was able ultimately to bundle a clause recognizing the independence of Cuba, as distinguished from its government, into the declaration of war of April 11, 1898, against Spain.

For the most part, the sponsors of the clause defended it by the following line of reasoning. Diplomacy, they said, was now at an end,

and the President himself had appealed to Congress to provide a

solution for the Cuban situation. In response, Congress was about

to exercise its constitutional power of declaring war, and it has consequently the right to state the purpose of the war which it was

about to declare. 585 The recognition of the Union of Soviet Socialist

Republics in 1933 was an exclusively presidential act.

The Power of Nonrecognition.—The potentialities of nonrecognition were conspicuously illustrated by President Woodrow

Wilson when he refused, early in 1913, to recognize Provisional

President Huerta as the de facto government of Mexico, thereby

contributing materially to Huerta’s downfall the year following. At

the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and

while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics,

and his successors prior to President Franklin D. Roosevelt did the

same. The refusal of the Hoover administration to recognize the

independence of the Japanese puppet state of Manchukuo early in

1932 was based on kindred grounds. Similarly, the nonrecognition

of the Chinese Communist Government from the Truman Administration to President Nixon’s de facto recognition through a visit in

1972—not long after the People’s Republic of China was admitted

to the United Nations and the exclusion of Taiwan—proved to be
ART. II—EXECUTIVE DEPARTMENT 547

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

586President Carter’s termination of the Mutual Defense Treaty with Taiwan,

which precipitated a constitutional and political debate, was perhaps an example of

nonrecognition or more appropriately derecognition. On recognition and nonrecognition policies in the post-World War II era, see RESTATEMENT, FOREIGN RELATIONS,

op. cit., n. 262, §§ 202, 203. 587 1 MESSAGES AND PAPERS OF WOODROW WILSON, A. Shaw ed. (New York:

1924), 58. 588 55 Stat. 31 (1941). 589 E. CORWIN, op. cit., n. 44, 184–193, 423–425, 435–436.

an important part of American foreign policy during the Cold

War. 586

Congressional Implementation of Presidential Policies

No President was ever more jealous of his prerogative in the

realm of foreign relations than President Woodrow Wilson. When,

however, strong pressure was brought to bear upon him by Great

Britain respecting his Mexican Policy, he was constrained to go before Congress and ask for a modification of the Panama Tolls Act

of 1911, which had also aroused British ire. Addressing Congress,

he said, ‘‘I ask this of you in support of the foreign policy of the

Administration. I shall not know how to deal with other matters

of even greater delicacy and nearer consequence if you do not grant

it to me in ungrudging measure.’’ 587

The fact is, of course, that Congress has enormous powers, the

support of which is indispensable to any foreign policy. In the long

run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although

it does not direct them, that pledges the public credit, that declares

war, that defines offenses against the law of nations, that regulates

foreign commerce; and it has the further power ‘‘to make all laws

which shall be necessary and proper’’—that is, which it deems to

be such—for carrying into execution not only its own powers but

all the powers ‘‘of the government of the United States and of any

department or officer thereof.’’ Moreover, its laws made ‘‘in pursuance’’ of these powers are ‘‘supreme law of the land,’’ and the President is bound constitutionally to ‘‘take care that’’ they ‘‘be faithfully

executed.’’ In point of fact, congressional legislation has operated to

augment presidential powers in the foreign field much more frequently than it has to curtail them. The Lend-Lease Act of March

11, 1941 588 is the classic example, although it only brought to culmination a whole series of enactments with which Congress had

aided and abetted the administration’s foreign policy in the years

between 1934 and 1941. 589 Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the

President to use troops abroad in the absence of a declaration of
548 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

590Legislation includes the War Powers Resolution, P.L. 93–148, 87 Stat. 555

(1953), 50 U.S.C. §§ 1541–1548; the National Emergencies Act, P.L. 94–412, 90 Stat.

1255 (1976), 50 U.S.C. §§ 1601–1651 (establishing procedures for presidential declaration and continuation of national emergencies and providing for a bicameral congressional veto); the International Emergency Economic Powers Act, P.L. 95–223, 91

Stat. 1626 (1977), 50 U.S.C. §§ 1701–1706 (limiting the great economic powers conferred on the President by the Trading with the Enemy Act of 1917, 40 Stat. 415,

50 U.S.C. App. § 5(b), to times of declared war, and providing new and more limited

powers, with procedural restraints, for nonwartime emergencies); and see the Foreign Sovereign Immunities Act of 1976, P.L. 94–583, 90 Stat. 2891, 28 U.S.C.

§§ 1330, 1602–1611 (removing from executive control decisions concerning the liability of foreign sovereigns to suit). 591 ‘‘We may say that power to legislate for emergencies belongs in the hands

of Congress, but only Congress itself can prevent power from slipping through its

fingers.’’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice

Jackson concurring). For an account of how the President usually prevails, see H.

KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRANCONTRA AFFAIRS (New Haven: 1990). 592 2 Pet. (27 U. S.) 253 (1829).

war, but also limiting his economic and political powers through

curbs on his authority to declare national emergencies. 590 The lesson of history, however, appears to be that congressional efforts to

regain what is deemed to have been lost to the President is intermittent, whereas the presidential exercise of power in today’s world

is unremitting. 591

The Doctrine of Political Questions

It is not within the province of the courts to inquire into the

policy underlying action taken by the ‘‘political departments’’—Congress and the President—in the exercise of their conceded powers.

This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence

of facts and even questions of law, which the Court would normally

regard as falling within its jurisdiction. Such questions are termed

‘‘political questions,’’ and are especially common in the field of foreign relations. The leading case is Foster v. Neilson, 592 where the

matter in dispute was the validity of a grant made by the Spanish

Government in 1804 of land lying to the east of the Mississippi

River, and in which there was also raised the question whether the

region between the Perdido and Mississippi Rivers belonged in

1804 to Spain or the United States.

Chief Justice Marshall held that the Court was bound by the

action of the political departments, the President and Congress, in

claiming the land for the United States. He said: ‘‘If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty;
ART. II—EXECUTIVE DEPARTMENT 549

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

593 Id., 308. 594 13 Pet. (38 U.S.) 415 (1839). 595 Id., 420. 596Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829). 597Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415 (1839). 598 United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818).

if the legislature has acted on the construction thus asserted, it is

not in its own courts that this construction is to be denied. A question like this, respecting the boundaries of nations, is, as has been

truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will

of the legislature.’’ 593 The doctrine thus clearly stated is further

exemplified, with particular reference to presidential action, by

Williams v. Suffolk Ins. Co. 594 In this case, the underwriters of a

vessel which had been confiscated by the Argentine Government for

catching seals off the Falkland Islands, contrary to that Government’s orders, sought to escape liability by showing that the Argentinean Government was the sovereign over these islands and that,

accordingly, the vessel had been condemned for willful disregard of

legitimate authority. The Court decided against the company on

the ground that the President had taken the position that the Falkland Islands were not a part of Argentina. ‘‘[C]an there be any

doubt, that when the executive branch of the government, which is

charged with our foreign relations, shall, in its correspondence with

a foreign nation, assume a fact in regard to the sovereignty of any

island or country, it is conclusive on the judicial department? And

in this view, it is not material to inquire, nor is it the province of

the court to determine, whether the executive be right or wrong.

It is enough to know, that in the exercise of his constitutional functions, he had decided the question. Having done this, under the responsibilities which belong to him, it is obligatory on the people

and government of the Union.

‘‘If this were not the rule, cases might often arise, in which, on

most important questions of foreign jurisdiction, there would be an

irreconcilable difference between the executive and judicial departments. By one on these departments, a foreign island or country

might be considered as at peace with the United States; whilst the

other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive

of national character.’’ 595 Thus, the right to determine the boundaries of the country is a political function, 596 as is also the right

to determine what country is sovereign of a particular region, 597 to

determine whether a community is entitled under international

law to be considered a belligerent or an independent state, 598 to
550 ART. II—EXECUTIVE DEPARTMENT

Sec. 3—Powers and Duties of the President Cl. 3—Conduct of Foreign Relations

599Doe v. Braden, 16 How. (57 U.S.) 635, 657 (1853). 600 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co.,

246 U.S. 297 (1918). 601 In re Baiz, 135 U.S. 403 (1890). 602 Neely v. Henkel, 180 U.S. 109 (1901). 603Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447

(1913). 604 333 U.S. 103 (1948). 605 Id., 111. See also Oetjen v. Central Leather Co., 246 U.S. 297 (1918); Ricaud

v. American Metal Co., 246 U. S. 304 (1918). Analogous to and arising out of the

determine whether the other party has duly ratified a treaty, 599 to

determine who is the de jure or de facto ruler of a country, 600 to

determine whether a particular person is a duly accredited diplomatic agent to the United States, 601 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty, 602 to determine whether a treaty is in effect or not, although

doubtless an extinguished treaty could be constitutionally renewed

by tacit consent. 603

Recent Statements of the Doctrine.—The assumption underlying the refusal of courts to intervene in such cases is well stated

in the case of Chicago & S. Airlines v. Waterman S.S. Corp. 604

Here, the Court refused to review orders of the Civil Aeronautics

Board granting or denying applications by citizen carriers to engage in overseas and foreign air transportation, which by the then

terms of the Civil Aeronautics Act were subject to approval by the

President and therefore impliedly beyond those provisions of the

act authorizing judicial review of board orders. Elaborating on the

necessity of judicial abstinence in the conduct of foreign relations,

Justice Jackson declared for the Court: ‘‘The President, both as

Commander in Chief and as the Nation’s organ for foreign affairs,

has available intelligence services whose reports are not and ought

not be published to the world. It would be intolerable that courts,

without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the

very nature of executive decisions as to foreign policy is political,

not judicial. Such decisions are wholly confided by our Constitution

on the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of

prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been

held to belong in the domain of political power not subject to judicial intrusion or inquiry.’’ 605
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same considerations as the political question doctrine is the ‘‘act of state’’ doctrine

under which United States courts will not examine the validity of the public acts

of foreign governments done within their own territory, typically, but not always,

in disputes arising out of nationalizations. E.g., Underhill v. Hernandez, 168 U.S.

250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Alfred Dunhill

of London v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of this

amorphous doctrine, see RESTATEMENT, FOREIGN RELATIONS, op. cit., n. 262, §§ 443–

444. Congress has limited the reach of the doctrine in foreign expropriation cases

by the Hickenlooper Amendments. 22 U.S.C. § 2370(e)(2). Consider, also, Dames &

Moore v. Regan, 453 U.S. 654 (1981). Similar, also, is the doctrine of sovereign immunity of foreign states in United States courts, under which jurisdiction over the

foreign state, at least after 1952, turned upon the suggestion of the Department of

State as to the applicability of the doctrine. See Alfred Dunhill of London v. Republic of Cuba, supra, 698–706 (plurality opinion), but see id., 725–728 (Justice Marshall dissenting). For the period prior to 1952, see Z. & F. Assets Corp. v. Hull, 311

U.S. 470, 487 (1941). Congress in the Foreign Sovereign Immunities Act of 1976,

P.L. 94–583, 90 Stat. 2891, 28 U.S.C. §§ 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d),

1602–1611, provided for judicial determination of applicability of the doctrine but

did adopt the executive position with respect to no applicability for commercial actions of a foreign state. E.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U.S.

480 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428

(1989). See RESTATEMENT, FOREIGN RELATIONS, op. cit., n. 262, §§ 451–463 (including

Introductory Note, pp. 390–396. 606 335 U.S. 160 (1948). 607 Id., 167, 170. Four Justices dissented, by Justice Black, who said: ‘‘The Court

. . . holds, as I understand its opinion, that the Attorney General can deport him

whether he is dangerous or not. The effect of this holding is that any unnaturalized

person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany

before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any

To the same effect are the Court’s holding and opinion in

Ludecke v. Watkins, 606 where the question at issue was the power

of the President to order the deportation under the Alien Enemy

Act of 1798 of a German alien enemy after the cessation of hostilities with Germany. Said Justice Frankfurter for the Court: ‘‘War

does not cease with a cease-fire order, and power to be exercised

by the President such as that conferred by the Act of 1798 is a

process which begins when war is declared but is not exhausted

when the shooting stops. . . . The Court would be assuming the

functions of the political agencies of the Government to yield to the

suggestion that the unconditional surrender of Germany and the

disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us

to question a belief by the President that enemy aliens who were

justifiably deemed fit subject for internment during active hostilities do not lose their potency for mischief during the period of

confusion and conflict which is characteristic of a state of war even

when the guns are silent but the peace of Peace has not come.

These are matters of political judgment for which judges have neither technical competence nor official responsibility.’’ 607
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power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General’s deportation order. . . . I think the idea that we are still at war

with Germany in the sense contemplated by the statute controlling here is a pure

fiction. Furthermore, I think there is no act of Congress which lends the slightest

basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing

reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion

of formal peace with Germany, Congress unequivocally required that enemy aliens

be given a fair hearing before they could be deported.’’ Id., 174–175. See also Woods

v. Miller Co., 333 U.S. 138 (1948), where the continuation of rent control under the

Housing and Rent Act of 1947, enacted after the termination of hostilities, was

unanimously held to be a valid exercise of the war power, but the constitutional

question raised was asserted to be a proper one for the Court. Said Justice Jackson,

in a concurring opinion: ‘‘Particularly when the war power is invoked to do things

to the liberties of people, or to their property or economy that only indirectly affect

conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care.’’ Id., 146–147.

608 369 U.S. 186 (1962).

609 Id., 217.

610 Id., 211–212. A case involving ‘‘a purely legal question of statutory interpretation’’ is not a political question simply because the issues have significant political

and foreign relations overtones. Japan Whaling Assn. v. American Cetacean Society,

478 U.S. 221, 229–230 (1986) (Fisherman’s Protective Act does not completely remove Secretary of Commerce’s discretion in certifying that foreign nationals are ‘‘diminishing the effectiveness of’’ an international agreement by taking whales in violation of quotas set pursuant to the agreement).

The most recent Court review of the political question doctrine

is found in Baker v. Carr. 608 There, Justice Brennan noted and

elaborated the factors which go into making a question political

and inappropriate for judicial decision. 609 On the matter at hand,

he said: ‘‘There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only

does resolution of such issues frequently turn on standards that

defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many

such questions uniquely demand single-voiced statement of the

Government’s views. Yet it is error to suppose that every case or

controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the

history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in

the specific case, and of the possible consequences of judicial action.’’ 610 However, recently, the Court came within one vote of creating a broad application of the political question doctrine in foreign relations disputes, at least in the context of a dispute between

Congress and the President with respect to a proper allocation of
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611Goldwater v. Carter, 444 U.S. 996, 1002–1006 (Justices Rehnquist, Stewart,

and Stevens and Chief Justice Burger). The doctrine was applied in just such a dispute in Dole v. Carter, 569 F.2d 1109 (10th Cir., 1977).

612 ‘‘Matters intimately related to foreign policy and national security are rarely

proper subjects for judicial intervention.’’ Haig v. Agee, 453 U.S. 280, 292 (1981).

See also Dames & Moore v. Regan, 453 U.S. 654, 688 (1981); Rostker v. Goldberg,

453 U.S. 57, 64–68 (1981); Greer v. Spock, 424 U.S. 828, 837–838 (1976); Parker

v. Levy, 417 U.S. 733, 756, 758 (1974); Harisiades v. Shaughnessy, 342 U.S. 580,

589 (1952). Neither may private claimants seek judicial review of executive actions

denying constitutional rights ‘‘in such sensitive areas as national security and foreign policy’’ in suits for damages against offending officials, inasmuch as the President is absolutely immune, Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Court

has strongly hinted that in these areas the immunity of presidential aides and other

executive officials ‘‘entrusted with discretionary authority’’ will be held to be absolute rather than qualified. Harlow v. Fitzgerald, 457 U.S. 800, 812–813 (1982).

constitutional powers. 611 In any event, the present Court, in adjudicating on the merits disputes in which the foreign relations powers are called into question, follows a policy of such deference to executive and congressional expertise that the result may not be dissimilar to a broad application of the political question doctrine. 612

THE PRESIDENT AS LAW ENFORCER

Powers Derived From This Duty

The Constitution does not say that the President shall execute

the laws, but that ‘‘he shall take care that the laws be faithfully

executed,’’ i.e., by others, who are commonly, but not always with

strict accuracy, termed his subordinates. What powers are implied

from this duty? In this connection, five categories of executive

power should be distinguished: first, there is that executive power

which the Constitution confers directly upon the President by the

opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total of

the powers which acts of Congress at any particular time confer

upon the President; thirdly, there is the sum total of discretionary

powers which acts of Congress at any particular time confer upon

heads of departments and other executive (‘‘administrative’’) agencies of the National Government; fourthly, there is the power which

stems from the duty to enforce the criminal statutes of the United

States; finally, there are so-called ‘‘ministerial duties’’ which admit

of no discretion as to the occasion or the manner of their discharge.

Three principal questions arise: first, how does the President exercise the powers which the Constitution or the statutes confer upon

him; second, in what relation does he stand by virtue of the ‘‘take

care’’ clause to the powers of other executive or administrative
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613 Notice that in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142–2146

(1992), the Court purported to draw from the ‘‘take care’’ clause the principle that

Congress could not authorize citizens with only generalized grievances to sue to

compel governmental compliance with the law, inasmuch as permitting that would

be ‘‘to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully

executed.’’’ Id., 2145. 614 7 Ops. Atty. Gen. 453, 464–465 (1855). 615 9 Stat. 102 (1846), 20 U.S.C. § 41. 616 Cf. 2 Stat. 78. The provision has long since dropped out of the statute book. 617 Runkle v. United States, 122 U.S. 543 (1887). 618 Cf. In re Chapman, 166 U.S. 661, 670–671 (1897), where it was held that

presumptions in favor of official action ‘‘preclude collateral attack on the sentences

of courts-martial.’’ See also United States v. Fletcher, 148 U.S. 84, 88–89 (1893);

Bishop v. United States, 197 U.S. 334, 341–342 (1905), both of which in effect repudiate Runkle.

agencies; third, in what relation does he stand to the enforcement

of the criminal laws of the United States? 613

Whereas the British monarch is constitutionally under the necessity of acting always through agents if his acts are to receive

legal recognition, the President is presumed to exercise certain of

his constitutional powers personally. In the words of an opinion by

Attorney General Cushing in 1855: ‘‘It may be presumed that he,

the man discharging the presidential office, and he alone, grants

reprieves and pardons for offenses against the United States. . . .

So he, and he alone, is the supreme commander in chief of the

Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.

That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can,

by constitutional possibility, authorize or create any military officer

not subordinate to the President.’’ 614 Moreover, the obligation to

act personally may be sometimes enlarged by statute, as, for example, by the act organizing the President with other designated officials into ‘‘an Establishment by name of the Smithsonian Institute.’’ 615 Here, says the Attorney General, ‘‘the President’s name of

office is designatio personae.’’ He was also of opinion that expenditures from the ‘‘secret service’’ fund, in order to be valid, must be

vouched for by the President personally. 616 On like grounds the

Supreme Court once held void a decree of a court martial, because,

though it has been confirmed by the Secretary of War, it was not

specifically stated to have received the sanction of the President as

required by the 65th Article of War. 617 This case has, however,

been virtually overruled, and at any rate such cases are exceptional. 618

The general rule, as stated by the Court, is that when any

duty is cast by law upon the President, it may be exercised by him
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619The President, in the exercise of his executive power under the Constitution,

‘‘speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.’’ The heads of the departments are

his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts.

Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 513 (1839). See also United States v.

Eliason, 16 Pet. (41 U.S.) 291 (1842); Williams v. United States, 1 How. (42 U.S.)

290, 297 (1843); United States v. Jones, 18 How. (59 U.S.) 92, 95 (1856); The

Confiscation Cases, 20 Wall. (87 U.S.) 92 (1874); United States v. Farden, 99 U.S.

10 (1879); Wolsey v. Chapman, 101 U.S. 755 (1880). 620 1 How. (42 U.S.) 290 (1843). 621 3 Stat. 723 (1823), now covered in 31 U.S.C. § 3324. 622 Id., 1 How. (42 U.S.), 297–298. 623 38 Ops. Atty. Gen. 457, 458 (1936). And, of course, if the President exercises

his duty through subordinates, he must appoint them or appoint the officers who

appoint them, Buckley v. Valeo, 424 U. S. 1, 109–143 (1976), and he must have the

power to discharge those officers in the Executive Branch, Myers v. United States,

272 U.S. 52 (1926), although the Court has now greatly qualified Myers to permit

congressional limits on the removal of some officers. Morrison v. Olson, 487 U.S. 654

(1988).

through the head of the appropriate department, whose acts, if performed within the law, thus become the President’s acts. 619 Williams v. United States 620 involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction

by the President. 621 The Supreme Court held that the act did not

require the personal performance by the President of this duty.

Such a practice, said the Court, if it were possible, would absorb

the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President’s duty in general requires

his superintendence of the administration; yet he cannot be required to become the administrative officer of every department

and bureau, or to perform in person the numerous details incident

to services which, nevertheless, he is, in a correct sense, by the

Constitution and laws required and expected to perform. 622 As a

matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though

in pursuance of powers conferred by statute on the President, do

not even refer to the President. 623

Impoundment of Appropriated Funds.—In his Third Annual Message to Congress, President Jefferson established the first

faint outline of what has been in recent years a major controversy.

Reporting that $50,000 in funds which Congress had appropriated

for fifteen gunboats on the Mississippi remained unexpended, the

President stated that a ‘‘favorable and peaceful turn of affairs on

the Mississippi rendered an immediate execution of the law unnecessary. . . .’’ But he was not refusing to expend the money, only de-
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624 1 J. RICHARDSON, op. cit., n. 42, 348, 360. 625 History and law is much discussed in Executive Impoundment of Appropriated Funds, Hearings before the Senate Judiciary Subcommittee on Separation

of Powers, 92d Congress, 1st sess. (1971); Impoundment of Appropriated Funds by

the President, Hearings before the Senate Government Operations Ad Hoc Subcommittee on Impoundment of Funds, 93d Congress, 1st sess. (1973). The most thorough study of the legal and constitutional issues, informed through historical analysis, is Abascal & Kramer, Presidential Impoundment Part I: Historical Genesis and

Constitutional Framework, 62 Geo. L. J. 1549 (1974); Abascal & Kramer, Presidential Impoundment Part II: Judicial and Legislative Response, 63 id. 149 (1974).

See generally L. FISHER, PRESIDENTIAL SPENDING POWER (Princeton: 1975). 626There is no satisfactory definition of impoundment. Legislation enacted by

Congress uses the phrase ‘‘deferral of budget authority’’ which is defined to include:

‘‘(A) withholding or delaying the obligation or expenditure of budget authority

(whether by establishing reserves or otherwise) provided for projects or activities;

or (B) any other type of Executive action or inaction which effectively precludes the

obligation or expenditure of budget authority, including authority to obligate by contract in advance of appropriations as specifically authorized by law.’’ 2 U.S.C.

§ 682(1). 627 Impoundment of Appropriated Funds by the President, Hearings before the

Senate Government Operations Ad Hoc Subcommittee on Impoundment of Funds,

93d Congress, 1st sess. (1973), 358 (then-Deputy Attorney General Sneed).

laying action to obtain improved gunboats; a year later, he told

Congress that the money was being spent and gunboats were being

obtained. 624 A few other instances of deferrals or refusals to spend

occurred in the Nineteenth and early Twentieth Centuries, but it

was only with the Administration of President Franklin Roosevelt

that a President refused to spend moneys for the purposes appropriated. Succeeding Presidents expanded upon these precedents,

and in the Nixon Administration a well-formulated plan of impoundments was executed in order to reduce public spending and

to negate programs established by congressional legislation. 625

Impoundment 626 was defended by Administration spokesmen

as being a power derived from the President’s executive powers and

particularly from his obligation to see to the faithful execution of

the laws, i.e., his discretion in the manner of execution. The President, the argument went, is responsible for deciding when two conflicting goals of Congress can be harmonized and when one must

give way, when, for example, congressional desire to spend certain

moneys must yield to congressional wishes to see price and wage

stability. In some respects, impoundment was said or implied to

flow from certain inherent executive powers that repose in any

President. Finally, statutory support was sought; certain laws were

said to confer discretion to withhold spending, and it was argued

that congressional spending programs are discretionary rather

than mandatory. 627

On the other hand, it was argued that Congress’ powers under

Article I, § 8, were fully adequate to support its decision to authorize certain programs, to determine the amount of funds to be spent
ART. II—EXECUTIVE DEPARTMENT 557

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628 Id., 1–6 (Senator Ervin). Of course, it was long ago established that Congress

could direct the expenditure of at least some moneys from the Treasury, even over

the opposition of the President. Kendall v. United States ex rel. Stokes, 12 Pet. (37

U.S.) 524 (1838). 629Train v. City of New York, 420 U.S. 35 (1975); Train v. Campaign Clean

Water, 420 U.S. 136 (1975). See also State Highway Comm. of Missouri v. Volpe,

479 F.2d 1099 (8th Cir., 1973); Commonwealth of Pennsylvania v. Lynn, 501 F.2d

848 (D.C.Cir., 1974) (the latter case finding statutory discretion not to spend). 630 Congressional Budget and Impoundment Control Act, P.L. 93–344, title X,

§§ 1001–1017, 88 Stat. 332 (1974), as amended, 2 U.S.C. §§ 681–688. 631Originally passed as the Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27, 48.

The provisions as described in the text were added in the General Appropriations

on them, and to mandate the Executive to execute the laws. Permitting the President to impound appropriated funds allowed him

the power of item veto which he does not have and denies Congress

the opportunity to override his veto of bills enacted by Congress.

In particular, the power of Congress to compel the President to

spend appropriated moneys was said to derive from Congress’

power ‘‘to make all Laws which shall be necessary and proper for

carrying into Execution’’ the enumerated powers of Congress and

‘‘all other Powers vested by this Constitution in the Government of

the United States, or in any Department or officer thereof.’’ 628

The President’s decision to impound large amounts of appropriated funds led to two approaches to curtail the power. First,

many persons and organizations, with a reasonable expectation of

receipt of the impounded funds upon their release, brought large

numbers of suits; with a few exceptions, these suits resulted in decisions denying the President either constitutional or statutory

power to decline to spend or obligate funds, and the Supreme

Court, presented with only statutory arguments by the Administration, held that no discretion existed under the particular statute to

withhold allotments of funds to the States. 629 Second, Congress in

the course of revising its own manner of appropriating funds in accordance with budgetary responsibility provided for mandatory reporting of impoundments to Congress, for congressional disapproval

of impoundments, and for court actions by the Comptroller General

to compel spending or obligation of funds. 630

Generally speaking, the law recognized two types of impoundments: ‘‘routine’’ or ‘‘programmatic’’ reservations of budget authority to provide for the inevitable contingencies that arise in administering congressionally-funded programs and ‘‘policy’’ decisions

that are ordinarily intended to advance the broader fiscal or other

policy objectives of the executive branch contrary to congressional

wishes in appropriating funds in the first place.

Routine reservations were to come under the terms of a revised

Anti-Deficiency Act. 631 Prior to its amendment, this law had per-
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Act of 1951, ch. 896, § 1211(c)(2), 64 Stat. 595, 765. The amendments made by the

Impoundment Control Act, were § 1002, 88 Stat. 332, 31 U.S.C. §§ 1341, 1512. On

the Anti-Deficiency Act generally, see Stith, Congress’ Power of the Purse, 97 Yale

L. J. 1343, 1370–1377 (1988). 632L. FISHER, PRESIDENTIAL SPENDING POWER (Princeton: 1975), 154–157. 633 31 U.S.C. § 1512(c)(1) (present version). Congressional intent was to prohibit

the use of apportionment as an instrument of policymaking. 120 CONG. REC. 7658

(1974) (Senator Muskie); id., 20472–20473 (Senators Ervin and McClellan). 634 §§ 1011(1), 1012, 1013, 88 Stat. 333–334, 2 U.S.C. §§ 628(1), 683, 684. 635 2 U.S.C. § 683. 636 § 1013, 88 Stat. 334. Because the Act was a compromise between the House

of Representatives and the Senate, numerous questions were left unresolved; one

important one was whether the President could use the deferral avenue as a means

of effectuating policy impoundments or whether rescission proposals were the sole

means. The subsequent events described in the text mooted that argument. 637 462 U.S. 919 (1983). 638 City of New Haven v. United States, 809 F.2d 900 (D.C.Cir. 1987).

mitted the President to ‘‘apportion’’ funds ‘‘to provide for contingencies, or to effect savings whenever savings are made possible by

or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which

such appropriation was made available.’’ President Nixon had relied on this ‘‘other developments’’ language as authorization to impound, for what in essence were policy reasons. 632 Congress deleted the controverted clause and retained the other language to

authorize reservations to maintain funds for contingencies and to

effect savings made possible in carrying out the program; it added

a clause permitting reserves ‘‘as specifically provided by law.’’ 633

‘‘Policy’’ impoundments were to be reported to Congress by the

President as permanent rescissions and, perhaps, as temporary deferrals. 634 Rescissions are merely recommendations or proposals of

the President and must be authorized by a bill or joint resolution,

or, after 45 days from the presidential message, the funds must be

made available for obligation. 635 Temporary deferrals of budget authority for less than a full fiscal year, as provided in the 1974 law,

were to be effective unless either the House of Representatives or

the Senate passed a resolution of disapproval. 636 With the decision

in INS v. Chadha, 637 voiding as unconstitutional the one-House

legislative veto, it was evident that the veto provision in the deferral section of the Impoundment Control Act was no longer viable.

An Administration effort to utilize the section, minus the veto device, was thwarted by court action, in which, applying established

severability analysis, the court held that Congress would not have

enacted the deferral provision in the absence of power to police its

exercise through the veto. 638 Thus, the entire deferral section was

inoperative. Congress, in 1987, enacted a more restricted authority,
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639P. L. 100–119, title II, § 206(a), 101 Stat. 785, 2 U.S.C. § 684. 640P. L. 99–177, 99 Stat. 1037, codified as amended in titles 2, 31, and 42

U.S.C., with the relevant portions to this discussion at 2 U.S.C. § 901 et seq. 641See Stith, Rewriting the Fiscal Constitution: The Case of Gramm-RudmanHollings, 76 Calif. L. Rev. 593 (1988). 642 1 ANNALS OF CONG. 495, 499 (1789).

limited to deferrals only for those purposes set out in the Anti-Deficiency Act. 639

With passage of the Act, the constitutional issues faded into

the background; Presidents regularly reported rescission proposals,

and Congress responded by enacted its own rescissions, usually

topping the Presidents’. The entire field was, of course, confounded

by the application of the other part of the 1974 law, the Budget

Act, which restructured how budgets were received and acted on in

Congress, and by the Balanced Budget and Emergency Deficit Control Act of 1985. 640 This latter law was designed as a deficit-reduction forcing mechanism, so that unless President and Congress cooperates each year to reduce the deficit by prescribed amounts, a

‘‘sequestration’’ order would reduce funds down to a mandated figure. 641 Dissatisfaction with the amount of deficit reduction continues to stimulate discussion of other means, such as ‘‘expedited’’ rescission and the line-item veto, many of which may raise some constitutional issues.

Power and Duty of the President in Relation to Subordinate

Executive Officers

Suppose, that the law casts a duty upon a head of department

eo nomine, does the President thereupon become entitled by virtue

of his duty to ‘‘take care that the laws be faithfully executed,’’ to

substitute his own judgment for that of the principal officer regarding the discharge of such duty? In the debate in the House in 1789

on the location of the removal power, Madison argued that it ought

to be attributed to the President alone because it was ‘‘the intention of the Constitution, expressed especially in the faithful execution clause, that the first magistrate should be responsible for the

executive department,’’ and this responsibility, he held, carried

with it the power to ‘‘inspect and control’’ the conduct of subordinate executive officers. ‘‘Vest,’’ said he, ‘‘the power [of removal] in

the Senate jointly with the President, and you abolish at once the

great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public

good.’’ 642

But this was said with respect to the office of the Secretary of

State, and when shortly afterward the question arose as to the

power of Congress to regulate the tenure of the Comptroller of the
560 ART. II—EXECUTIVE DEPARTMENT

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643 Id., 611–612. 644 1 Cr. (5 U.S.) 137 (1803). 645 Id., 165–166. 646 1 Ops. Atty. Gen. 624 (1823). 647 3 J. RICHARDSON, op. cit., n. 42, 1288.

Treasury, Madison assumed a very different attitude, conceding in

effect that this office was to be an arm of certain of Congress’ own

powers and should therefore be protected against the removal

power. 643 And in Marbury v. Madison, 644 Chief Justice Marshall

traced a parallel distinction between the duties of the Secretary of

State under the original act which had created a ‘‘Department of

Foreign Affairs’’ and those which had been added by the later act

changing the designation of the department to its present one. The

former were, he pointed out, entirely in the ‘‘political field,’’ and

hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress.

For these, therefore, the Secretary was ‘‘an officer of the law’’ and

‘‘amenable to the law for his conduct.’’ 645

Administrative Decentralization Versus Jacksonian

Centralism.—An opinion rendered by Attorney General Wirt in

1823 asserted the proposition that the President’s duty under the

‘‘take care’’ clause required of him scarcely more than that he

should bring a criminally negligent official to book for his

derelictions, either by removing him or by setting in motion against

him the processes of impeachment or of criminal prosecutions. 646

The opinion entirely overlooked the important question of the location of the power to interpret the law which is inevitably involved

in any effort to enforce it. The diametrically opposed theory that

Congress is unable to vest any head of an executive department,

even within the field of Congress’ specifically delegated powers,

with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President Jackson’s Protest Message of April 15, 1834, 647 defending his removal

of Duane as Secretary of the Treasury, because of the latter’s refusal to remove the deposits from the Bank of the United States.

Here it is asserted ‘‘that the entire executive power is vested in the

President;’’ that the power to remove those officers who are to aid

him in the execution of the laws is an incident of that power; that

the Secretary of the Treasury was such an officer; that the custody

of the public property and money was an executive function exercised through the Secretary of the Treasury and his subordinates;

that in the performance of these duties the Secretary was subject

to the supervision and control of the President; and finally that the
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648 Id., 1304. 649 12 Pet. (37 U.S.) 524 (1838). 650 Id., 610.

act establishing the Bank of the United States ‘‘did not, as it could

not change the relation between the President and Secretary—did

not release the former from his obligation to see the law faithfully

executed nor the latter from the President’s supervision and control.’’ 648 In short, the President’s removal power, in this case unqualified, was the sanction provided by the Constitution for his

power and duty to control his ‘‘subordinates’’ in all their official actions of public consequence.

Congressional Power Versus Presidential Duty to the

Law.—Four years late the case of Kendall v. United States ex rel.

Stokes, 649 was decided. The United States owed one Stokes money,

and when Postmaster General Kendall, at Jackson’s instigation, refused to pay it, Congress passed a special act ordering payment.

Kendall, however, still proved noncompliant, whereupon Stokes

sought and obtained a mandamus in the United States circuit court

for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall, like Marbury v.

Madison, involved the question of the responsibility of a head of a

department for the performance of a ministerial duty, the discussion by counsel before the Court and the Court’s own opinion covered the entire subject of the relation of the President to his subordinates in the performance by them of statutory duties. The lower

court had asserted that the duty of the President under the faithful

execution clause gave him no other control over the officer than to

see that he acts honestly, with proper motives, but no power to construe the law and see that the executive action conforms to it.

Counsel for Kendall attacked this position vigorously, relying largely upon statements by Hamilton, Marshall, James Wilson, and

Story having to do with the President’s power in the field of foreign

relations.

The Court rejected the implication with emphasis. There are,

it pointed out, ‘‘certain political duties imposed upon many officers

in the executive department, the discharge of which is under the

direction of the President. But it would be an alarming doctrine,

that Congress cannot impose upon any executive officer any duty

they may think proper, which is not repugnant to any rights secured and protected by the Constitution; and in such cases the duty

and responsibility grow out of and are subject to the control of the

law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial

character.’’ 650 In short, the Court recognized the underlying ques-
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651Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654

(1988). 652 Id., 689–690. 653 Id., 690–691. 654 Id., 691. 655 Id., 691–692.

tion of the case to be whether the President’s duty to ‘‘take care

that the laws be faithfully executed’’ made it constitutionally impossible for Congress ever to entrust the construction of its statutes

to anybody but the President, and it answered this in the negative.

Myers Versus Morrison.—How does this issue stand today?

The answer to this question, so far as there is one, is to be sought

in a comparison of the Court’s decision in the Myers case, on the

one hand, and its decision in the Morrison case, on the other. 651

The first decision is still valid to support the President’s right to

remove, and hence to control the decisions of, all officials through

whom he exercises the great political powers which he derives from

the Constitution and also of many but not all officials—usually

heads of departments—through whom he exercises powers conferred upon him by statute. Morrison, however, recasts Myers to be

about the constitutional inability of Congress to participate in removal decisions. It permits Congress to limit the removal power of

the President, and those acting for him, by imposition of a ‘‘good

cause’’ standard, subject to a balancing test. That is, the Court now

regards the critical issue not as what officials do, whether they perform ‘‘purely executive’’ functions or ‘‘quasi’’ legislative or judicial

functions, though the duties and functions must be considered.

Rather, the Courts must ‘‘ensure that Congress does not interfere

with the President’s exercise of the ‘executive power’’ and his constitutionally appointed duty to ‘take care that the laws be faithfully

executed’ under Article II.’’ 652 Thus, the Court continued, Myers

was correct in its holding and in its suggestion that there are some

executive officials who must be removable by the President if he is

to perform his duties. 653 On the other hand, Congress may believe

that it is necessary to protect the tenure of some officials, and if

it has good reasons not limited to invasion of presidential prerogatives, it will be sustained, provided the removal restrictions are not

of such a nature as to impede the President’s ability to perform his

constitutional duties. 654 The officer in Morrison, the independent

counsel, had investigative and prosecutorial functions, purely executive ones, but there were good reasons for Congress to secure her

tenure and no showing that the restriction ‘‘unduly trammels’’ presidential powers. 655

The ‘‘bright-line’’ rule previously observed no longer holds.

Now, Congress has a great deal more leeway in regulating execu-
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tive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court.

Power of the President to Guide Enforcement of the Penal

Law.—This matter also came to a head in ‘‘the reign of Andrew

Jackson,’’ preceding, and indeed foreshadowing, the Duane episode

by some months. ‘‘At that epoch,’’ Wyman relates in his PRINCIPLES

OF ADMINISTRATIVE LAW, ‘‘the first amendment of the doctrine of

centralism in its entirety was set forth in an obscure opinion upon

an unimportant matter—The Jewels of the Princess of Orange, 2

Opin. 482 (1831). These jewels . . . were stolen from the Princess

by one Polari and were seized by the officers of the United States

Customs in the hands of the thief. Representations were made to

the President of the United States by the Minister of the Netherlands of the facts in the matter, which were followed by a request

for return of the jewels. In the meantime the District Attorney was

prosecuting condemnation proceedings in behalf of the United

States which he showed no disposition to abandon. The President

felt himself in a dilemma, whether if it was by statute the duty of

the District Attorney to prosecute or not, the President could interfere and direct whether to proceed or not. The opinion was written

by Taney, then Attorney General; it is full of pertinent illustrations

as to the necessity in an administration of full power in the chief

executive as the concomitant of his full responsibility. It concludes:

If it should be said that, the District Attorney having the power to

discontinue the prosecution, there is no necessity for inferring a

right in the President to direct him to exercise it—I answer that

the direction of the President is not required to communicate any

new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and

proper measure may often be for the President to order the District

Attorney to discontinue prosecution. The District Attorney might

refuse to obey the President’s order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the

President himself could give no order to the court or to the clerk

to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and

who holds his office at his pleasure. And if that officer still continues a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of

one more worthy in his place would enable the President through

him faithfully to execute the law. And it is for this among other
564 ART. II—EXECUTIVE DEPARTMENT

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656 B. WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE

RELATIONS OF PUBLIC OFFICERS (St. Paul: 1903), 231–232. 657 United States v. Eliason, 16 Pet. (41 U.S.) 291, 301–302 (1842); Kurtz v.

Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–181 (1886).

For a recent analysis of the approach to determining the validity of presidential, or

other executive, regulations and orders under purported congressional delegations

or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301–316

(1979). 658 In re Neagle, 135 U.S. 1 (1890). 659 Id., 64. The phrase, ‘‘a law of the United States,’’ came from the Act of March

2, 1833 (4 Stat. 632). However, in the Act of June 25, 1948, 62 Stat. 965, 28 U.S.C.

§ 2241(c)(2), the phrase is replaced by the term, ‘‘an act of Congress,’’ thereby eliminating the basis of the holding in Neagle. 660 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).

reasons that the power of removing the District Attorney resides in

the President.’’ 656

The President as Law Interpreter

The power accruing to the President from his function of law

interpretation preparatory to law enforcement is daily illustrated

in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley

Act, the Internal Security Act, and many lesser statutes. Nor is

this the whole story. Not only do all presidential regulations and

orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not

transgress the Court’s reading of such statutes or of the Constitution, 657 but he sometimes makes law in a more special sense. In

the famous Neagle case, 658 an order of the Attorney General to a

United States marshal to protect a Justice of the Supreme Court

whose life has been threatened by a suitor was attributed to the

President and held to be ‘‘a law of the United States’’ in the sense

of § 753 of the Revised Statutes, and as such to afford basis for a

writ of habeas corpus transferring the marshal, who had killed the

attacker, from state to national custody. Speaking for the Court,

Justice Miller inquired: ‘‘Is this duty [the duty of the President to

take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties

and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of

the government under the Constitution?’’ 659 Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. And in United States v. Midwest Oil Company, 660 it was ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public
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661 10 U.S.C. §§ 332, 333. The provisions were invoked by President Eisenhower

when he dispatched troops to Little Rock, Arkansas, in 1957 to counter resistance

to Federal District Court orders pertaining to desegregation of certain public schools

in the Little Rock School District. Although the validity of his action was never expressly reviewed, the Court, in Cooper v. Aaron, 358 U.S. 1, 4, 18–19 (1958), rejected a contention advanced by critics of the legality of his conduct, namely, that

the President’s constitutional duty to see to the faithful execution of the laws as implemented by the provisions quoted above, does not afford a sanction for the use of

troops to enforce decrees of federal courts, inasmuch as the latter are not statutory

enactments which alone are comprehended within the phrase, ‘‘laws of the United

States.’’ According to the Court, a judicial decision interpreting a constitutional provision, specifically the Court’s interpretation of the Fourteenth Amendment enunciated ‘‘. . . in the Brown Case [ Brown v. Board of Education, 347 U.S. 483 (1954)]

is the supreme law of the land, and Art. VI of the Constitution makes it of binding

effect . . . .’’ 662 1 Stat. 264 (1792); 1 Stat. 424 (1794); 2 Stat. 443 (1807); 12 Stat. 281 (1861);

now covered by 10 U.S.C. §§ 332–334. 663 12 Wheat. (25 U.S.) 19 (1827). 664 Id., 31–32.

lands, both mineral and nonmineral, from private acquisition, Congress having never repudiated the practice.

Military Power in Law Enforcement: The Posse Comitatus

‘‘Whenever the President considers that unlawful obstructions,

combinations, or assemblages, or rebellion against the authority of

the United States, make it impracticable to enforce the laws of the

United States in any State or Territory by the ordinary course of

judicial proceedings, he may call into Federal service such of the

militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

‘‘The President, by using the militia or the armed forces, or

both . . . shall take such measures as he considers necessary to

suppress, in a State, any insurrection, domestic violence, unlawful

combination, or conspiracy, if it—(1) so hinders the execution of the

laws of that State, and of the United States within the State, that

any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by

law . . . .’’ 661

These quoted provisions of the United States Code consolidate

a course of legislation which began at the time of the Whiskey Rebellion of 1792. 662 In Martin v. Mott, 663 which arose out of the

War of 1812, it was held that the authority to decide whether the

exigency had arisen belonged exclusively to the President. 664 Even

before that time, Jefferson had, in 1808, in the course of his efforts

to enforce the Embargo Acts, issued a proclamation ordering ‘‘all officers having authority, civil or military, who shall be found in the

vicinity’’ of an unruly combination, to aid and assist ‘‘by all means

in their power, by force of arms or otherwise’’ the suppression of
566 ART. II—EXECUTIVE DEPARTMENT

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665Wilson, Federal Aid in Domestic Disturbances, S. Doc. No. 209, 57th Congress, 2d Sess. (1907), 51. 666 6 Ops. Atty. Gen. 446 (1854). By the Posse Comitatus Act of 1878, 20 Stat.

152, 18 U.S.C. § 1385, it was provided that ‘‘it shall not be lawful to employ any

part of the Army of the United States, as a posse comitatus, or otherwise, for the

purpose of executing the laws, except in such cases and under such circumstances

as such employment of said force may be expressly authorized by the Constitution

or by act of Congress. . . .’’ The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General ‘‘that by Revised Statutes 5298 and 5300

[10 U.S.C. §§ 332, 334] the military forces, under the direction of the President,

could be used to assist a marshal. 16 Ops. Atty. Gen. 162.’’ B. RICH, THE PRESIDENTS AND CIVIL DISORDER (Washington: 1941), 196 n. 21. 667 12 Stat. (app.) 1258. 668 212 U.S. 78 (1909). 669 In re Debs, 158 U.S. 564 (1895).

such combination. 665 Forty-six years later, Attorney General Cushing advised President Pierce that in enforcing the Fugitive Slave

Act of 1850, marshals of the United States had authority when opposed by unlawful combinations to summon to their aid not only

bystanders and citizens generally, but armed forces within their

precincts, both state militia and United States officers, soldiers,

sailors, and marines, 666 a doctrine that Pierce himself improved

upon two years later by asserting, with reference to the civil war

then raging in Kansas, that it lay within his obligation to take care

that the laws be faithfully executed to place the forces of the United States in Kansas at the disposal of the marshal there, to be

used as a portion of the posse comitatus. Lincoln’s call of April 15,

1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson’s

conception of a posse comitatus subject to presidential call. 667 The

provisions above extracted from the United States Code ratified

this conception as regards the state militias and the national

forces.

Suspension of Habeas Corpus by the President

See Article I, § 9.

Preventive Martial Law

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody, 668 to

which the Debs case 669 may be regarded as an addendum. Moyer,

a labor leader, brought suit against Peabody for having ordered his

arrest during a labor dispute which occurred while Peabody was

governor of Colorado. Speaking for a unanimous Court, one Justice

being absent, Justice Holmes said: ‘‘Of course the plaintiff’s position is that he has been deprived of his liberty without due process

of law. But it is familiar that what is due process of law depends
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670 212 U.S., 84–85. See also Sterling v. Constantin, 287 U.S. 378 (1932), which

endorses Moyer v. Peabody, while emphasizing the fact that it applies only to a condition of disorder.

on circumstances. It varies with the subject matter and the necessities of the situation. . . . The facts that we are to assume are that

a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could

release him.

‘‘. . . In such a situation we must assume that he had a right

under the state constitution and laws to call out troops, as was

held by the Supreme Court of the State. . . . That means that he

shall make the ordinary use of the soldiers to that end; that he

may kill persons who resist and, of course, that he may use the

milder measure of seizing the bodies of those whom he considers

to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent

the exercise of hostile power. So long as such arrests are made in

good faith and in the honest belief that they are needed in order

to head the insurrection off, the Governor is the final judge and

cannot be subjected to an action after he is out of office on the

ground for his belief.

‘‘. . . When it comes to a decision by the head of the State upon

a matter involving its life, the ordinary rights of individuals must

yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.’’ 670

The Debs Case.—The Debs case of 1895 arose out of a railway

strike which had caused the President to dispatch troops to Chicago the previous year. Coincidentally with this move, the United

States district attorney stationed there, acting upon orders from

Washington, obtained an injunction from the United States circuit

court forbidding the strike because of its interference with the

mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which

Debs had been jailed for contempt of court, had been granted with

jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the

ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated

in the following passage of Justice Brewer’s opinion for the Court:

‘‘Every government, entrusted, by the very terms of its being, with

powers and duties to be exercised and discharged for the general
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671 158 U.S., 584, 586. Some years earlier, in United States v. San Jacinto Tin

Co., 125 U.S. 273, 279 (1888), the Court sustained the right of the Attorney General

and his assistants to institute suits simply by virtue of their general official powers.

‘‘If,’’ the Court said, ‘‘the United States in any particular case has a just cause for

calling upon the judiciary of the country, in any of its courts, for relief . . . the question of appealing to them must primarily be decided by the Attorney General . . .

and if restrictions are to be placed upon the exercise of this authority it is for Congress to enact them.’’ Cf. Hayburn’s Case, 2 Dall. (2 U.S.) 409 (1792), in which the

Court rejected Attorney General Randolph’s contention that he had the right ex

officio to move for a writ of mandamus ordering the United States circuit court for

Pennsylvania to put the Invalid Pension Act into effect. 672 47 Stat. 170 (1932), 29 U.S.C. §§ 101–115. 673 330 U.S. 258 (1947). In reaching the result, Chief Justice Vinson invoked the

‘‘rule that statutes which in general terms divest preexisting rights or privileges will

not be applied to the sovereign without express words to that effect.’’ Id., 272. 674Thus, the Chief Justice noted that ‘‘we agree’’ that the debates on NorrisLaGuardia ‘‘indicate that Congress, in passing the Act, did not intend to permit the

United States to continue to intervene by injunction in purely private labor disputes.’’ Of course, he continued, ‘‘whether Congress so intended or not is a question

different from the one before us now.’’ Id., 278. 675 61 Stat. 136, 155 (1947), 29 U.S.C. §§ 176–180. Cf. Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952), with regard to the exclusivity of proceeding.

welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. . . .

While it is not the province of the Government to interfere in any

mere matter of private controversy between individuals, or to use

its granted powers to enforce the rights of one against another, yet,

whenever the wrongs complained of are such as affect the public

at large, and are in respect of matters which by the Constitution

are entrusted to the care of the Nation and concerning which the

Nation owes the duty to all the citizens of securing to them their

common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it

from the courts, or prevent it from taking measures therein to fully

discharge those constitutional duties.’’ 671

Present Status of the Debs Case.—Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the Norris-LaGuardia Act 672 placed substantial restrictions on the power

of federal courts to issue injunctions in such situations. Though, in

United States v. UMW, 673 the Court held that the NorrisLaGuardia Act did not apply where the Government brought suit

as operator of mines, language in the opinion appeared to go a good

way toward repudiating the present viability of Debs, though more

in terms of congressional limitations than of revised judicial opinion. 674 It should be noted that in 1947 Congress authorized the

President to seek injunctive relief in ‘‘national emergency’’ labor

disputes, which would seem to imply absence of authority to act in

situations not meeting the statutory definition. 675
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676 403 U.S. 713 (1971). 677On Justice Marshall’s view on the lack of authorization, see id., 740–748

(concurring opinion); for the dissenters on this issue, see id., 752, 755–759 (Justice

Harlan, with whom Chief Justice Burger and Justice Blackmun joined); and see id.,

727, 729–730 (Justice Stewart, joined by Justice White, concurring).

With regard to the power of the President to seek injunctive

relief in other situations without statutory authority, there is no

clear precedent. In New York Times Co. v. United States, 676 the

Government sought to enjoin two newspapers from publishing classified material given to them by a dissident former governmental

employee. Though the Supreme Court rejected the Government’s

claim, five of the six majority Justices relied on First Amendment

grounds, apparently assuming basic power to bring the action in

the first place, and three dissenters were willing to uphold the constitutionality of the Government’s action and its basic power on the

premise that the President was authorized to protect the secrecy of

governmental documents. Only one Justice denied expressly that

power was lacking altogether to sue. 677

The President’s Duty in Cases of Domestic Violence in the

States

See Article IV, § 4, pp. 892–895, and Supra, pp. 487–488.

The President as Executor of the Law of Nations

Illustrative of the President’s duty to discharge the responsibilities of the United States in international law with a view to avoiding difficulties with other governments was the action of President

Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts, on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval

censorship regulations. Justifying this drastic invasion of private

rights, Attorney General Gregory said: ‘‘The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army

and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be

endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in

doing so, in the absence of any statutory restrictions, he may act

through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of

the extraordinary conditions existing, to advise that the President,

through the Secretary of the Navy or any appropriate department,

close down, or take charge of and operate, the plant . . . should he
570 ART. II—EXECUTIVE DEPARTMENT

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678 30 Ops. Atty. Gen. 291 (1914). 679 7 J. MOORE, DIGEST OF INTERNATIONAL LAW (Washington: 1906), 346–354. 680Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860). 681 Id., 112.

deem it necessary in securing obedience to his proclamation of neutrality.’’ 678

PROTECTION OF AMERICAN RIGHTS OF PERSON AND

PROPERTY ABROAD

In 1854, one Lieutenant Hollins, in command of a United

States warship, bombarded the town of Greytown, Nicaragua because of the refusal of local authorities to pay reparations for an

attack by a mob on the United States consul. 679 Upon his return

to the United States, Hollins was sued in a federal court by

Durand for the value of certain property which was alleged to have

been destroyed in the bombardment. His defense was based upon

the orders of the President and Secretary of the Navy and was sustained by Justice Nelson, on circuit. 680 ‘‘As the Executive head of

the nation, the President is made the only legitimate organ of the

General Government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of

the country or of its citizens. It is to him, also, the citizens abroad

must look for protection of person and of property, and for the

faithful execution of the laws existing and intended for their protection. For this purpose, the whole Executive power of the country

is placed in his hands, under the Constitution, and the laws passed

in pursuance thereof; and different Departments of government

have been organized, through which this power may be most conveniently executed, whether by negotiation or by force—a Department of State and a Department of the Navy.

‘‘Now, as it respects the interposition of the Executive abroad,

for the protection of the lives or property of the citizen, the duty

must, of necessity, rest in the discretion of the President. Acts of

lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to

be effectual or of any avail, may, not infrequently, require the most

prompt and decided action. Under our system of Government, the

citizen abroad is as much entitled to protection as the citizen at

home. The great object and duty of Government is the protection

of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not

worth preserving.’’ 681
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682See United States Solicitor of the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces (Washington: 3d rev. ed. 1934); M.

OFFUTT, THE PROTECTION OF CITIZENS ABROAD BY THE ARMED FORCES OF THE UNITED STATES (Baltimore: 1928). 683Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860). 684M. OFFUTT, op. cit., n. 682, 5. 685 E. CORWIN, op. cit., n. 44, 198–201. 686 Cf. Metzger, Property in International Law, 50 Va. L. Rev. 594 (1964);

Vaughn, Finding the Law of Expropriation: Traditional v. Quantitative Research, 2

Texas Intl. L. Forum 189 (1966). 687 62 Stat. 143 (1948), as amended, 22 U.S.C. § 2191 et seq. See also 22 U.S.C.

§ 1621 et seq. 688 76 Stat. 260 (1962), 22 U.S.C. § 2370(e)(1).

This incident and this case were but two items in the 19th century advance of the concept that the President had the duty and

the responsibility to protect American lives and property abroad

through the use of armed forces if deemed necessary. 682 The duty

could be said to grow out of the inherent powers of the Chief Executive 683 or perhaps out of his obligation to ‘‘take Care that the

Laws be faithfully executed.’’ 684 Although there were efforts made

at times to limit this presidential power narrowly to the protection

of persons and property rather than to the promotion of broader

national interests, 685 no such distinction was observed in practice

and so grew the concepts which have become the source of serious

national controversy in the 1960s and 1970s, the power of the

President to use troops abroad to observe national commitments

and protect the national interest without seeking prior approval

from Congress.

Congress and the President versus Foreign Expropriation.—Congress has asserted itself in one area of protection of

United States property abroad, making provision against uncompensated expropriation of property belonging to United States citizens and corporations. The problem of expropriation of foreign

property and the compensation to be paid therefor remains an unsettled area of international law, of increasing importance because

of the changes and unsettled conditions following World War II. 686

It has been the position of the Executive Branch that just compensation is owed all United States property owners dispossessed

in foreign countries and the many pre-World War II disputes were

carried on between the President and the Department of State and

the nation involved. But commencing with the Marshall Plan in

1948, Congress has enacted programs of guaranties to American investors in specified foreign countries. 687 More relevant to discussion here is that Congress has attached to United States foreign assistance programs various amendments requiring the termination

of assistance and imposing other economic inducements where uncompensated expropriations have been instituted. 688 And when the
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689 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). 690 78 Stat. 1013 (1964), as amended, 22 U.S.C. § 2370(e)(2), applied on remand

in Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), affd. 383 F.

2d 166 (2d Cir., 1967), cert. den., 390 U.S. 956 (1968). 691 E.O. 10340, 17 FED. REG. 3139 (1952). 692 H. Doc. No. 422, 82d Congress, 2d sess. (1952), 98 CONG. REC. 3912 (1952);

H. Doc. No. 496, 82d Congress, 2d sess. (1952), 98 CONG. REC. 6929 (1952). 693 103 F. Supp. 569 (D.D.C. 1952). 694The court of appeals had stayed the district court’s injunction pending appeal. 197 F.2d 582 (D.C.Cir., 1952). The Supreme Court decision bringing the action

up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented. 695 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the majority with Justice Black were Justices Frankfurter, Douglas, Jackson, Burton, and

Clark. Dissenting were Chief Justice Vinson and Justices Reed and Minton. For critical consideration of the case, see Corwin, The Steel Seizure Case: A Judicial Brick

Without Straw, 53 Colum. L. Rev. 53 (1953); Roche, Executive Power and Domestic

Emergency: The Quest for Prerogative, 5 West. Pol. Q. 592 (1952). For a comprehensive account, see M. MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS

OF PRESIDENTIAL POWER (New York: 1977).

Supreme Court in 1964 applied the ‘‘act of state’’ doctrine so as not

to examine the validity of a taking of property by a foreign government recognized by the United States but to defer to the decision

of the foreign government, 689 Congress reacted by attaching another amendment to the foreign assistance act reversing the

Court’s application of the doctrine, except in certain circumstances,

a reversal which was applied on remand of the case. 690

PRESIDENTIAL ACTION IN THE DOMAIN OF

CONGRESS STEEL SEIZURE CASE

To avert a nationwide strike of steel workers which he believed

would jeopardize the national defense, President Truman, on April

8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country. 691 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the

appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress’ power to supersede his order, but Congress did not do so, either then or a few

days later when the President sent up a special message. 692 On

suit by the steel companies, a federal district court enjoined the

seizure, 693 and the Supreme Court brought the case up prior to decision by the court of appeals. 694 Six-to-three, the Court affirmed

the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree

the opinion of the Court by Justice Black. 695 The holding and the

multiple opinions represent a setback for the adherents of ‘‘inher-
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696 Indeed, the breadth of the Government’s arguments in the district court may

well have contributed to the defeat, despite the much more measured contentions

set out in the Supreme Court. See A. WESTIN, THE ANATOMY OF A CONSTITUTIONAL

LAW CASE (New York: 1958), 56–65 (argument in district court). 697 Id., 343 U.S., 585–589. 698 2 Cr. (6 U.S.) 170 (1804). 699 1 Stat. 613 (1799).

ent’’ executive powers, 696 but they raise difficult conceptual and

practical problems with regard to presidential powers.

The Doctrine of the Opinion of the Court.—The chief points

urged in the Black opinion are the following: There was no statute

that expressly or impliedly authorized the President to take possession of the property involved. On the contrary, in its consideration

of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work

stoppages and settling labor disputes. Authority to issue such an

order in the circumstances of the case was not deducible from the

aggregate of the President’s executive powers under Article II of

the Constitution; nor was the order maintainable as an exercise of

the President’s powers as Commander-in-Chief of the Armed

Forces. The power sought to be exercised was the lawmaking

power, which the Constitution vests in the Congress alone. Even if

it were true that other Presidents have taken possession of private

business enterprises without congressional authority in order to

settle labor disputes, Congress was not thereby divested of its exclusive constitutional authority to make the laws necessary and

proper to carry out all powers vested by the Constitution ‘‘in the

Government of the United States, or any Department or Officer

thereof.’’ 697

The Doctrine Considered.—The pivotal proposition of the

opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to

do so without prior congressional authorization. To this reasoning,

not only the dissenters but Justice Clark would not concur and in

fact stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One

of the earliest pronouncements on presidential power in this area

was that of Chief Justice Marshall in Little v. Barreme. 698 There,

a United States vessel under orders from the President had seized

a United States merchant ship bound from a French port allegedly

carrying contraband material; Congress had, however, provided for

seizure only of such vessels bound to French ports. 699 Said the

Chief Justice: ‘‘It is by no means clear that the president of the

United States whose high duty it is to ‘take care that the laws be

faithfully executed,’ and who is commander in chief of the armies
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700Little v. Barreme, 2 Cr. (6 U.S.) 170, 177–178 (1804). 701 10 ANNALS OF CONG. 596, 613–614 (1800). The argument was endorsed in

Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893). The presence of a treaty,

of which this provision was self-executing, is sufficient to distinguish this example

from the steel seizure situation. 702 Cf. E. CORWIN, THE PRESIDENT’S CONTROL OF FOREIGN RELATIONS (New

York: 1916), ch. 1. 703 Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum.

L. Rev. 53, 58–59 (1953). 704 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952). 705 Id., 611–613, 620.

and navies of the United States, might not, without any special authority for that purpose in the then existing state of things, have

empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American

vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a

special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the

legislature seems to have prescribed that the manner in which this

law shall be carried into execution, was to exclude a seizure of any

vessel not bound to a French port.’’ 700

Other examples are at hand. In 1799, President Adams, in

order to execute the extradition provisions of the Jay Treaty, issued

a warrant for the arrest of one Robbins and the action was challenged in Congress on the ground that no statutory authority existed by which the President could act; John Marshall defended the

action in the House of Representatives, the practice continued, and

it was not until 1848 that Congress enacted a statute governing

this subject. 701 Again, in 1793, President Washington issued a neutrality proclamation; the following year, Congress enacted the first

neutrality statute and since then proclamations of neutrality have

been based on acts of Congress. 702 Repeatedly, acts of the President have been in areas in which Congress could act as well. 703

Justice Frankfurter’s concurring opinion 704 listed statutory authorizations for seizures of industrial property, 18 in all of which

all but the first were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents

without definite statutory warrant, eight of which occurred during

World War I, justified in the presidential orders as being done pursuant to ‘‘the Constitution and laws’’ generally, and eleven of which

occurred in World War II. 705 The first such seizure in this period

had been justified by then Attorney General Jackson as being

based upon an ‘‘aggregate’’ of presidential powers stemming from

his duty to see the laws faithfully executed, his commander-in-
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706 89 CONG. REC. 3992 (1943). 707 Id., 343 U.S., 695–696 (dissenting opinion). 708Thus, Justice Jackson noted of the earlier seizure, that ‘‘[i]ts superficial

similarities with the present case, upon analysis, yield to distinctions so decisive

that it cannot be regarded as even a precedent, much less an authority for the

present seizure.’’ Id., 648–649 (concurring opinion). His opinion opens with the sentence: ‘‘That comprehensive and undefined presidential powers hold both practical

advantages and grave dangers for the country will impress anyone who has served

as legal adviser to a President in time of transition and public anxiety.’’ Id., 634. 709 Brief for the United States, United States v. Midwest Oil Co., 236 U.S. 459

(1915), 11, 75–77.

chiefship, and his general executive powers. 706 Chief Justice

Vinson’s dissent dwelt liberally upon this opinion, 707 which reliance drew a disclaimer from Justice Jackson, concurring. 708

The dissent was also fortunate in that chief counsel for the

steel companies was the eminent John W. Davis, who, as Solicitor

General of the United States, had filed a brief in defense of Presidential action in 1914, which had taken precisely the view which

the dissent now presented on this issue. 709 ‘‘Ours,’’ the brief read,

‘‘is a self-sufficient Government within its sphere. (Ex parte

Siebold, 100 U.S. 371, 395; In re Debs, 158 U.S. 564, 578.) ‘Its

means are adequate to its ends’ (McCulloch v. Maryland, 4 Wheat.,

316 424), and it is rational to assume that its active forces will be

found equal in most things to the emergencies that confront it.

While perfect flexibility is not to be expected in a Government of

divided powers, and while division of power is one of the principal

features of the Constitution, it is the plain duty of those who are

called upon to draw the dividing lines to ascertain the essential,

recognize the practical, and avoid a slavish formalism which can

only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function

to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things

and upon men in many relations which have not, though they

might have, been actually regulated by Congress. In other words,

just as there are fields which are peculiar to Congress and fields

which are peculiar to the Executive, so there are fields which are

common to both, in the sense that the Executive may move within

them until they shall have been occupied by legislative action.

These are not the fields of legislative prerogative, but fields within

which the lawmaking powers may enter and dominate whenever it

chooses. This situation results from the fact that the President is

the active agent, not of Congress, but of the Nation. As such he

performs the duties which the Constitution lays upon him imme-
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710Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 667,

689–691 (1952) (dissenting opinion). 711 Id., 585–587. 712 Id., 597. 713 Id., 602.

diately, and as such, also, he executes the laws and regulations

adopted by Congress. He is the agent of the people of the United

States, deriving all his powers from them and responsible directly

to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, but because Congress is enthroned in

authority over him, not because the Constitution directs him to do

so.

‘‘Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional

duty to act for the national protection in situations not covered by

the acts of Congress, and in which, even, it may not be said that

his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled

such a duty have not been rare in our history, though, being for

the public benefit and approved by all, his acts have seldom been

challenged in the courts.’’ 710

Power Denied by Congress.—Justice Black’s opinion of the

Court notes that Congress had refused to give the President seizure authority and had authorized other actions, which had not

been taken. 711 This statement led him only to conclude that since

the power claimed did not stem from Congress, it had to be found

in the Constitution. But four of the concurring Justices made considerably more of the fact that Congress had considered seizure

and had refused to authorize it. Justice Frankfurter stated: ‘‘We

must . . . put to one side consideration of what powers the President would have had if there had been no legislation whatever

bearing on the authority asserted by the seizure, or if the seizure

had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional approval were given.’’ 712

He then reviewed the proceedings of Congress that attended the

enactment of the Taft-Hartley Act and concluded that ‘‘Congress

has expressed its will to withhold this power [of seizure] from the

President as though it had said so in so many words.’’ 713

Justice Jackson attempted a schematic representation of presidential powers, which ‘‘are not fixed but fluctuate, depending upon

their disjunction or conjunction with those of Congress.’’ Thus,

there are essentially three possibilities. ‘‘1. When the President

acts pursuant to an express or implied authorization of Congress,
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714 Id., 635–638.

715 Id., 639, 640.

716 Id., 657.

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

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

his authority is at its maximum, for it includes all that he possess

in his own right plus all that Congress can delegate. . . . 2. When

the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may

have concurrent authority, or in which its distribution is uncertain.

. . . 3. When the President takes measures incompatible with the

expressed or implied will of Congress, his power is at its lowest

ebb, for then he can rely only upon his own constitutional powers

minus any constitutional powers of Congress over the matter.

Courts can sustain exclusive presidential control in such a case

only by disabling the Congress from acting upon the subject.’’ 714

The seizure in question was placed in the third category ‘‘because

Congress has not left seizure of private property an open field but

has covered it by three statutory policies inconsistent with this seizure.’’ Therefore, ‘‘we can sustain the President only by holding

that seizure of such strike-bound industries is within his domain

and beyond control by Congress.’’ 715 That holding was not possible.

Justice Burton, referring to the Taft-Hartley Act, said that ‘‘the

most significant feature of that Act is its omission of authority to

seize,’’ citing debate on the measure to show that the omission was

a conscious decision. 716 Justice Clark placed his reliance on Little

v. Barreme, 717 inasmuch as Congress had laid down specific procedures for the President to follow, which he had declined to follow. 718

Despite the opinion of the Court, therefore, it seems clear that

four of the six Justices in the majority were more moved by the fact

that the President had acted in a manner considered and rejected

by Congress in a field in which Congress was empowered to establish the rules, rules the President is to see faithfully executed, than

with the fact that the President’s action was a form of ‘‘lawmaking’’

in a field committed to the province of Congress. The opinion of the

Court, therefore, and its doctrinal implications must be considered

with care, inasmuch as it is doubtful that the opinion does lay

down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of ‘‘inherent’’ presidential powers—and they are significant—the implications for the
578 ART. II—EXECUTIVE DEPARTMENT

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719 In Dames & Moore v. Regan, 453 U.S. 654, 668–669 (1981), the Court recurred to the Youngstown analysis for resolution of the presented questions, but one

must observe that it did so saying that ‘‘the parties and the lower courts . . . have

all agreed that much relevant analysis is contained in’’ Youngstown. See also id.,

661–662, quoting Justice Jackson’s Youngstown concurrence, ‘‘which both parties

agree brings together as much combination of analysis and common sense as there

is in this area’’. 720 4 Wall. (71 U.S.) 475 (1867). 721The Court declined to express an opinion ‘‘whether, in any case, the President of the United States may be required, by the process of this court, to perform

a purely ministerial act under a positive law, or may be held amenable, in any case,

otherwise than by impeachment for crime.’’ Id., 498. See Franklin v. Massachusetts,

112 S.Ct. 2767, 2788–2790 (1992) (Justice Scalia concurring). In National Treasury

Employees Union v. Nixon, 492 F.2d 587 (D.C.Cir. 1974), the court held that a writ

of mandamus could issue to compel the President to perform a ministerial act, although it said that if any other officer were available to whom the writ could run

it should be applied to him. 722Mississippi v. Johnson, 4 Wall. (71 U.S.) 475, 484–485 (1867) (argument of

counsel).

area here under consideration are cloudy and have remained so

from the time of the decision. 719

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in Mississippi v. Johnson, 720 in

1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers,

whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial. 721 An application for an injunction to forbid President

Johnson to enforce the Reconstruction Acts, on the ground of their

unconstitutionality, was answered by Attorney General Stanberg,

who argued, inter alia, the absolute immunity of the President

from judicial process. 722 The Court refused to permit the filing,

using language construable as meaning that the President was not

reachable by judicial process but which more fully paraded the horrible consequences were the Court to act. First noting the limited

meaning of the term ‘‘ministerial,’’ the Court observed that ‘‘[v]ery

different is the duty of the President in the exercise of the power

to see that the laws are faithfully executed, and among these laws

the acts named in the bill. . . . The duty thus imposed on the

President is in no just sense ministerial. It is purely executive and

political.

‘‘An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President

might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.’

‘‘It is true that in the instance before us the interposition of

the court is not sought to enforce action by the Executive under
ART. II—EXECUTIVE DEPARTMENT 579

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723 Id., 499, 500–501. One must be aware that the case was decided in the context of congressional predominance following the Civil War. The Court’s restraint

was pronounced when it denied an effort to file a bill of injunction to enjoin enforcement of the same acts directed to cabinet officers. Georgia v. Stanton, 6 Wall. (73

U.S.) 50 (1867). Before and since, however, the device to obtain review of the President’s actions has been to bring suit against the subordinate officer charged with

carrying out the President’s wishes. Kendall v. United States ex rel. Stokes, 12 Pet.

(37 U.S.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided

process against the President. In Franklin v. Massachusetts, 112 S.Ct. 2767 (1992),

resolving a long-running dispute, the Court held that the President is not subject

to the Administrative Procedure Act and his actions, therefore, are not reviewable

in suits under the Act. Inasmuch as some agency action, the acts of the Secretary

of Commerce in this case, is preliminary to presidential action, the agency action

is not ‘‘final’’ for purposes of APA review. Constitutional claims would still be

brought, however. 724 United States v. Nixon, 418 U.S. 683 (1974).

constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive

that this circumstance takes the case out of the general principles

which forbid judicial interference with the exercise of Executive

discretion.

. . .

‘‘The Congress is the legislative department of the government;

the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts

of both, when performed, are, in proper cases, subject to its cognizance.

‘‘The impropriety of such interference will be clearly seen upon

consideration of its possible consequences.

‘‘Suppose the bill filed and the injunction prayed for allowed.

If the President refuse obedience, it is needless to observe that the

court is without power to enforce its process. If, on the other hand,

the President complies with the order of the court and refuses to

execute the acts of Congress, is it not clear that a collision may

occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere,

in behalf of the President, thus endangered by compliance with its

mandate, and restrain by injunction the Senate of the United

States from sitting as a court of impeachment? Would the strange

spectacle be offered to the public world of an attempt by this court

to arrest proceedings in that court?’’ 723

Rare has been the opportunity for the Court to elucidate its

opinion in Mississippi v. Johnson, and, in the Watergate tapes

case, 724 it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely,
580 ART. II—EXECUTIVE DEPARTMENT

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725 Id., 706. 726 Ibid. 727 Id., 706–707. The issue was considered more fully by the lower courts. In re

Grand Jury Subpoena to Richard M. Nixon, 360 F. Supp. 1, 6–10 (D.D.C. 1973)

(Judge Sirica), affd. sub nom., Nixon v. Sirica, 487 F.2d 700, 708–712 (D.C.Cir.

1973) (en banc) (refusing to find President immune from process). Present throughout was the conflicting assessment of the result of the subpoena of President Jefferson in the Burr trial. United States v. Burr, 25 Fed. Cas. 187 (No. 14,694)

(C.C.D.Va. 1807). For the history, see Freund, Foreword: On Presidential Privilege,

The Supreme Court, 1973 Term, 88 Harv. L. Rev. 13, 23–30 (1974). 728The impeachment clause, Article I, § 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. Morris

in the Convention, 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF

1787 (New Haven: rev. ed. 1937), 500, and Hamilton in THE FEDERALIST, Nos. 65,

69 (J. Cooke ed., 1961), 442, 463, asserted that criminal trial would follow a successful impeachment. 729 Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95–

122; Nixon v. Sirica, 487 F.2d 700, 756–758 (D.C.Cir., 1973) (en banc) (Judge

MacKinnon dissenting). The Court had accepted the President’s petition to review

the propriety of the grand jury’s naming him as an unindicted coconspirator, but

it dismissed that petition without reaching the question. United States v. Nixon,

supra, 687 n. 2.

with its prior opinion. The President’s counsel had argued the

President was immune to judicial process, claiming ‘‘that the independence of the Executive Branch within its own sphere . . . insulates a President from a judicial subpoena in an ongoing criminal

prosecution, and thereby protects confidential Presidential communications.’’ 725 However, the Court held, ‘‘neither the doctrine of

separation of powers, nor the need for confidentiality of high-level

communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under

all circumstances.’’ 726 The primary constitutional duty of the courts

‘‘to do justice in criminal prosecutions’’ was a critical counterbalance to the claim of presidential immunity and to accept the

President’s argument would disturb the separation-of-powers function of achieving ‘‘a workable government’’ as well as ‘‘gravely impair the role of the courts under Art. III.’’ 727

Present throughout the Watergate crisis, and unresolved by it,

was the question of the amenability of the President to criminal

prosecution prior to conviction upon impeachment. 728 It was argued that the impeachment clause necessarily required indictment

and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from

indictment, and these arguments were advanced as one ground to

deny enforcement of the subpoenas running to the President. 729

Assertion of the same argument by Vice President Agnew was controverted by the Government, through the Solicitor General, but, as

to the President, it was argued that for a number of constitutional
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730Memorandum for the United States, Application of Spiro T. Agnew, Civil No.

73–965 (D.Md., filed October 5, 1973). 731 Nixon v. Fitzgerald, 457 U.S. 731 (1982). 732 Id., 748. 733 Id., 749. 734 Id., 750–752 n. 31. 735 Id., 750. 736 Id., 751. 737 Id., 754.

and practical reasons he was not subject to ordinary criminal process. 730

Finally, most recently, the Court has definitively resolved one

of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts

within the ‘‘outer perimeter’’ of his official duties. 731 The Court’s

close decision was premised on the President’s ‘‘unique position in

the constitutional scheme,’’ that is, it was derived from the Court’s

inquiry of a ‘‘kind of ‘public policy’ analysis’’ of the ‘‘policies and

principles that may be considered implicit in the nature of the

President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.’’ 732

While the Constitution expressly afforded Members of Congress immunity in matters arising from ‘‘speech or debate,’’ and while it

was silent with respect to presidential immunity, the Court nonetheless considered such immunity ‘‘a functionally mandated incident of the President’s unique office, rooted in the constitutional

tradition of the separation of powers and supported by our history.’’ 733 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the

Constitution is silent, although a long common-law history exists,

and in part upon historical evidence, which it admitted was fragmentary and ambiguous, 734 the Court’s principal focus was upon

the fact that the President was distinguishable from all other executive officials. He is charged with a long list of ‘‘supervisory and

policy responsibilities of utmost discretion and sensitivity,’’ 735 and

diversion of his energies by concerns with private lawsuits would

‘‘raise unique risks to the effective functioning of government.’’ 736

Moreover, the presidential privilege is rooted in the separation-ofpowers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action;

‘‘merely private suit[s] for damages based on a President’s official

acts’’ do not serve this ‘‘broad public interest’’ necessitating the

courts to act. 737 Finally, qualified immunity would not adequately

protect the President, because judicial inquiry into a functional
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738 Id., 755–757. Justices White, Brennan, Marshall, and Blackmun dissented.

The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id., 748–749 n. 27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice

Burger disagreed with the implication of this footnote, id., 763–764 n. 7 (concurring

opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id., 770 & n. 4. 739 E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to

enjoin Secretary of Commerce to return steel mills seized on President’s order);

Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury

to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605

(1912). 740 E.g., Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803) (suit against Secretary

of State to compel delivery of commissions of office); Kendall v. United States ex rel.

Stokes, 12 Pet. (37 U.S.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 14 Pet. (39 U.S.)

497 (1840) (suit to compel Secretary of Navy to pay a pension). 741This was originally on the theory that the Supreme Court of the District of

Columbia had inherited, via the common law of Maryland, the jurisdiction of the

King’s Bench ‘‘over inferior jurisdictions and officers.’’ Kendall v. United States ex

rel. Stokes, 12 Pet. (37 U.S.) 524, 614, 620–621 (1838). Congress has now authorized

federal district courts outside the District of Columbia also to entertain such suits.

76 Stat. 744 (1962), 28 U.S.C. § 1361. 742 E.g., Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804); Bates v. Clark, 95 U.S. 204

(1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases, 114 U.S.

269 (1885); Belknap v. Schild, 161 U.S. 10 (1896). 743Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959).

See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature

as well as being within the scope of employment, before federal official is entitled

to absolute immunity). 744 An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978),

analysis of his actions would bring with it the evil immunity was

to prevent; absolute immunity was required. 738

The President’s Subordinates.—While the courts may be unable to compel the President to act or to prevent him from acting,

his acts, when performed, are in proper cases subject to judicial review and disallowance. Typically, the subordinates through whom

he acts may be sued, in a form of legal fiction, to enjoin the commission of acts which might lead to irreparable damage 739 or to

compel by writ of mandamus the performance of a duty definitely

required by law, 740 such suits being usually brought in the United

States District Court for the District of Columbia. 741 In suits under

the common law, a subordinate executive officer may be held personally liable in damages for any act done in excess of authority, 742

although immunity exists for anything, even malicious wrongdoing,

done in the course of his duties. 743

Different rules prevail when such an official is sued for a ‘‘constitutional tort’’ for wrongs allegedly in violation of our basic charter, 744 although the Court has hinted that in some ‘‘sensitive’’
ART. II—EXECUTIVE DEPARTMENT 583

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a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute

immunity, in favor of the qualified immunity previously accorded high state officials

under 42 U.S.C. § 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified

the rules of qualified immunity, making it more difficult to hold such aides, other

federal officials, and indeed state and local officials, liable for constitutional torts.

In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity

to the Attorney General for authorizing a warrantless wiretap in a case involving

domestic national security. Although the Court later held such warrantless wiretaps

violated the Fourth Amendment, at the time of the Attorney General’s authorization

this interpretation was not ‘‘clearly established,’’ and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v.

Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless

search). 745 Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). 746See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see P.L. 94–574,

90 Stat. 2721 (1976), and P.L. 96–486, 94 Stat. 2369 (1980). If such suits are

brought in state courts, they can be removed to federal district courts. 28 U.S.C.

§ 1442(a). 747 Impeachment is the subject of several other provisions of the Constitution.

Article I, § 2, cl. 5, gives to the House of Representatives ‘‘the sole power of impeachment.’’ Article I, § 3, cl. 6, gives to the Senate ‘‘the sole power to try all impeachments,’’ requires that Senators be under oath or affirmation when sitting for that

purpose, stipulates that the Chief Justice of the United States is to preside when

the President of the United States is tried, and provides for conviction on the vote

of two-thirds of the members present. Article I, § 3, cl. 7, limits the judgment after

impeachment to removal from office and disqualification from future federal office

holding, but it allows criminal trial and conviction following impeachment. Article

II, § 2, cl. 1, deprives the President of the power to grant pardons or reprieves in

cases of impeachment. Article III, § 2, cl. 3, excepts impeachment cases from the

jury trial requirement.

The word ‘‘impeachment’’ may be used to mean several different things. Any

member of the House may ‘‘impeach’’ an officer of the United States by presenting

a petition or memorial, which is generally referred to a committee for investigation

and report. The House votes to ‘‘impeach,’’ the meaning used in § 4, when it adopts

areas officials acting in the ‘‘outer perimeter’’ of their duties may

be accorded an absolute immunity from liability. 745 Jurisdiction to

reach such officers for acts for which they can be held responsible

must be under the general ‘‘federal question’’ jurisdictional statute,

which, as recently amended, requires no jurisdictional amount. 746

SECTION 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other

high Crimes and Misdemeanors.

IMPEACHMENT 747

Few provisions of the Constitution were adopted from English

practice to the degree the section on impeachment was. In Eng-
584 ART. II—EXECUTIVE DEPARTMENT

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articles of impeachment. The Senate then conducts a trial on these articles and if

the accused is convicted, he has been ‘‘impeached.’’ See 3 A. HINDS’ PRECEDENTS OF

THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (Washington: 1907), 2469–

2485, for the range of forms. 748 1 W. HOLDSWORTH, HISTORY OF ENGLISH LAW (London: 7th ed. 1956), 379–

385; Clarke, The Origin of Impeachment, in OXFORD ESSAYS IN MEDIEVAL HISTORY,

Presented to Herbert Salter (Oxford: 1934), 164. 749Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653–667 (1916). 750 1 ANNALS OF CONG. 457, 473, 536 (1789). 751 Id., 375, 480, 496–497, 562. 752 Id., 372. 753 3 W. WILLOUGHBY, op. cit., n. 294, 1448. 754This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 A. HINDS’

PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (Washington: 1907), 2294–2318; F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING

THE ADMINISTRATIONS OF WASHINGTON AND ADAMS (Philadelphia: 1849), 200–321.

land, impeachment was a device to remove from office one who

abused his office or misbehaved but who was protected by the

Crown. 748 It was a device that figured in the plans proposed to the

Convention from the first, and the arguments went to such questions as what body was to try impeachments and what grounds

were to be stated as warranting impeachment. 749 The attention of

the Framers was for the most part fixed on the President and his

removal, and the results of this narrow frame of reference are reflected in the questions unresolved by the language of the Constitution.

Persons Subject to Impeachment

During the debate in the First Congress on the ‘‘removal’’ controversy, it was contended by some members that impeachment

was the exclusive way to remove any officer of the Government

from his post, 750 but Madison and others contended that this position was destructive of sound governmental practice, 751 and the

view did not prevail. Impeachment, said Madison, was to be used

to reach a bad officer sheltered by the President and to remove him

‘‘even against the will of the President; so that the declaration in

the Constitution was intended as a supplementary security for the

good behavior of the public officers.’’ 752 The language of § 4 does

not leave any doubt that any officer in the executive branch is subject to the power; it does not appear that military officers are subject to it 753 nor that members of Congress can be impeached. 754

Judges.—Article III, § 1, specifically provides judges with

‘‘good behavior’’ tenure, but the Constitution nowhere expressly

vests the power to remove upon bad behavior; it has been assumed

that judges are made subject to the impeachment power through
ART. II—EXECUTIVE DEPARTMENT 585

Sec. 4—Powers and Duties of the President Impeachment

755See NATIONAL COMM. ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE

NATIONAL COMM. ON JUDICIAL DISCIPLINE & REMOVAL (1993), 9–11. The Commission was charged by Congress, P. L. 101–650, 104 Stat. 5124, with investigating and

studying problems and issues relating to discipline and removal of federal judges,

to evaluate the advisability of developing alternatives to impeachment, and to report

to the three Government Branches. The report and the research papers produced

for it contains a wealth of information on the subject. 756For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. FARRAND, op. cit., n. 4,

22, 244, 223–224, 231; 2 id., 186. On August 27, it was successfully moved that the

provision in the draft of the Committee on Detail giving the Supreme Court jurisdictions of trials of impeachment be postponed, id., 430, 431, which was one of the issues committed to the Committee of Eleven. Id., 481. That Committee reported the

provision giving the Senate power to try all impeachments, id., 497, which the Convention thereafter approved. Id., 551. It may be assumed that so long as trial was

in the Supreme Court, the Framers did not intend that the Justices, at least, were

to be subject to the process.

The Committee of Five on August 20 was directed to report ‘‘a mode for trying

the supreme Judges in cases of impeachment,’’ id., 337, and it returned a provision

making Supreme Court Justices triable by the Senate on impeachment by the

House. Id., 367. Consideration of this report was postponed. On August 27, it was

proposed that all federal judges should be removable by the executive upon the application of both houses of Congress, but the motion was rejected. Id., 428–429. The

matter was not resolved by the report of the Committee on Style, which left in the

‘‘good behavior’’ tenure but contained nothing about removal. Id., 575. Therefore, unless judges were included in the term ‘‘civil officers,’’ which had been added without

comment on September 8 to the impeachment clause, id., 552, they were not made

removable. But see infra. n. 758. 757The House of Representatives has approved articles of impeachment for thirteen judges. Two of the judges resigned before the trials in the Senate. After Senate

trials, seven judges were convicted and removed. Those judges who were tried were:

John Pickering, District Judge, 1803–1804, convicted, 3 A. HINDS’ PRECEDENTS OF

THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (Washington: 1907), 2319–

2341; Justice Samuel Chase, 1804–1805, acquitted, id., 2342–2363; James H. Peck,

District Judge, 1830, acquitted, id., 2364–2384; West H. Humphreys, District Judge,

1862, convicted, id., 2385–2397; Charles Swayne, District Judge, 1904–1905, acquitted, id., 2469–2485; Robert W. Archbald, Judge of Commerce Court, 1912–1913, convicted, 6 C. CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE

UNITED STATES (Washington: 1936), 498–512; Harold Louderback, District Judge,

1932, acquitted, id., 513–524; Halsted L. Ritter, 1936, District Judge, convicted, Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d sess. (1936); Harry Claiborne, District Judge,

1986, convicted, Proceedings of the United States Senate in the Impeachment Trial

of Harry E. Claiborne, S. Doc. 99–48, 99th Cong., 2d sess. (1986); Alcee Hastings,

District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 101–18, 101st Cong., 1st sess. (1989);

Walter Nixon, District Judge, 1989, convicted, Proceedings of the United States Senate in the Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101–22, 101st Cong.,

1st sess. (1989). For discussions of these and of the four acquittals, see A. BOYAN

(ED.), CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (Dobbs

Ferry, N.Y.: 1976) (per listings).

being labeled ‘‘civil officers.’’ 755 The records in the Convention

make this a plausible though not necessary interpretation. 756 And,

in fact, twelve of the fifteen impeachments reaching trial in the

Senate have been directed at federal judges. 757 So settled apparently is the interpretation that the major arguments, scholarly and
586 ART. II—EXECUTIVE DEPARTMENT

Sec. 4—Powers and Duties of the President Impeachment

758 Briefly, it has been argued that the impeachment clause of Article II is a

limitation on the power of Congress to remove judges and that Article III is a limitation on the executive power of removal, but that it is open to Congress to define

‘‘good behavior’’ and establish a mechanism by which judges may be judicially removed. Shartel, Federal Judges—Appointment, Supervision, and Removal—Some

Possibilities Under the Constitution,’’ 28 Mich. L. Rev. 485, 723, 870 (1930). Proposals to this effect were considered in Congress in the 1930s and 1940s and revived

in the late 1960s, stimulating much controversy in scholarly circles. E.g., Kramer

& Barron, The Constitutionality of Removal and Mandatory Retirement Procedures

for the Federal Judiciary: The Meaning of ‘‘During Good Behavior’’, 35 G.W.L. Rev.

455 (1967); Ziskind, Judicial Tenure in the American Constitution: English and

American Precedents, 1969 Sup. Ct. Rev. 135; Berger, Impeachment of Judges and

‘Good Behavior’ Tenure, 79 Yale L. J. 1475 (1970) Congress did in the Judicial Conduct and Disability Act of 1980, P. L. 96–458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331,

332, 372, 604, provide for judicial council of the circuit disciplinary powers over federal judges, but it specifically denied any removal power. The National Commission,

op. cit., n. 755, 17–26, found impeachment to be the exclusive means of removal and

recommended against adoption of an alternative. The issue has been obliquely before the Court as a result of a judicial conference action disciplining a district judge,

but it was not reached, Chandler v. Judicial Council, 382 U.S. 1003 (1966); id., 398

U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that

impeachment was the exclusive power. 759 1 M. FARRAND, op. cit., n. 4, 88, 90, 230. 760 2 id., 172, 186. 761 Id., 499. 762 Id., 550. 763 1 T. HOWELL, STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND

OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT

political, have concerned the question whether judges, as well as

others, are subject to impeachment for conduct which does not constitute an indictable offense and the question whether impeachment is the exclusive removal device with regard to judges. 758

Impeachable Offenses

The Convention came to its choice of words describing the

grounds for impeachment after much deliberation, but the phrasing

derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable

by impeachment and conviction ‘‘of mal-practice or neglect of

duty.’’ 759 The Committee of Detail reported as grounds ‘‘Treason

(or) Bribery or Corruption.’’ 760 And the Committee of Eleven reduced the phrase to ‘‘Treason, or bribery.’’ 761 On September 8,

Mason objected to this limitation, observing that the term did not

encompass all the conduct which should be grounds for removal; he

therefore proposed to add ‘‘or maladministration’’ following ‘‘bribery.’’ Upon Madison’s objection that ‘‘[s]o vague a term will be

equivalent to a tenure during pleasure of the Senate,’’ Mason suggested ‘‘other high crimes and misdemeanors,’’ which was adopted

without further recorded debate. 762 The phrase in the context of

impeachments has an ancient English history, first turning up in

the impeachment of the Earl of Suffolk in 1388. 763
ART. II—EXECUTIVE DEPARTMENT 587

Sec. 4—Powers and Duties of the President Impeachment

TIMES (London: 1809), 90, 91; A. SIMPSON, TREATISE ON FEDERAL IMPEACHMENTS

(Philadelphia: 1916), 86. 764 Article III, 3. 765The use of a technical term known in the common law would require resort

to the common law for its meaning, United States v. Palmer, 3 Wheat. (16 U.S.)

610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas.

653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the

issue of the cognizability of common law crimes in federal courts. See Act of April

30, 1790, § 21, 1 Stat. 117. 766 Berger, Impeachment for ‘‘High Crimes and Misdemeanors,’’ 44 S. Calif. L.

Rev. 395, 400–415 (1971). 767The extradition provision reported by the Committee on Detail had provided

for the delivering up of persons charged with ‘‘Treason, Felony or high Misdemeanors.’’ 2 M. FARRAND, op. cit., n. 4, 174. But the phrase ‘‘high Misdemeanors’’ was replaced with ‘‘other crimes,’’ ‘‘in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.’’ Id., 443. 768See id., 64–69, 550–551. 769 E.g., 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION (Philadelphia: 1836), 341, 498, 500, 528 (Madison); 4 id.,

276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 (Corbin): 4 id., 263 (Pendleton). Cf.

The Federalist, No. 65 (J. Cooke ed., 1961), 439–445 (Hamilton). 770 1 ANNALS OF CONG. 372–373 (1789). 771 4 J. ELLIOT, op. cit., n. 769, 126 (Iredell); 2 id., 478 (Wilson).

Treason is defined in the Constitution; 764 bribery is not, but

it had a clear common-law meaning and is now well covered by

statute. 765 High crimes and misdemeanors, however, is an undefined and indefinite phrase, which, in England, had comprehended

conduct not constituting indictable offenses. 766 In an unrelated action, the Convention had seemed to understand the term ‘‘high misdemeanor’’ to be quite limited in meaning, 767 but debate prior to

adoption of the phrase 768 and comments thereafter in the ratifying

conventions 769 were to the effect that the President at least, and

all the debate was in terms of the President, should be removable

by impeachment for commissions or omissions in office which were

not criminally cognizable. And in the First Congress’ ‘‘removal’’ debate, Madison maintained that the wanton removal from office of

meritorious officers would be an act of maladministration which

would render the President subject to impeachment. 770 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior. 771

While conclusions may be drawn from the conflicting statement, it

must always be recognized that a respectable case may be made for

either view.

Practice over the years, however, insofar as the Senate deems

itself bound by the actions of previous Senates, would appear to

limit the grounds of conviction to indictable criminal offenses for all

officers, with the possible exception of judges.

The Chase Impeachment.—The issue was early joined as a

consequence of the Jefferson Administration’s efforts to rid itself of
588 ART. II—EXECUTIVE DEPARTMENT

Sec. 4—Powers and Duties of the President Impeachment

772 1 J. Q. ADAMS, MEMOIRS (Philadelphia: 1874), 322. See also 3 A. HINDS’

PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES (Washington: 1907), 739, 753. 773 Id., 762. 774The full record is S. SMITH & T. LLOYD (eds.), TRIAL OF SAMUEL CHASE, AN

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES . . . (Washington: 1805). On the political background and the meaning of the trial and acquittal,

see Lillich, The Chase Impeachment, 4 Amer. J. Legal Hist. 49 (1960). 775 Act of March 2, 1867, 14 Stat. 430. 776 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT (Washington: 1868), 88, 147.

some of the Federalist judges who were propagandizing the country

through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during

the impeachment trial of Justice Chase. ‘‘The power of impeachment was given without limitation to the House of Representatives;

and the power of trying impeachments was given equally without

limitation to the Senate. . . . A trial and removal of a judge upon

impeachment need not imply any criminality or corruption in him

. . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry

them into effect you will work the destruction of the nation. We

want your offices, for the purpose of giving them to men who will

fill them better.’’ 772 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense. 773 Though

Chase’s acquittal owed more to the political divisions in the Senate

than to the merits of the arguments, it did go far to affix the latter

reading to the phrase ‘‘high Crimes and Misdemeanors’’ until the

turbulent period following the Civil War. 774

The Johnson Impeachment.—President Johnson was impeached by the House on the ground that he had violated the ‘‘Tenure of Office’’ Act 775 by dismissing a Cabinet chief. The theory of

the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate

trial. ‘‘An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential

principle of government or highly prejudicial to the public interest,

and this may consist of a violation of the Constitution, of law, of

an official oath, or of duty, by an act committed or omitted, or,

without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.’’ 776 Former

Justice Benjamin Curtis controverted this argument, saying: ‘‘My

first position is, that when the Constitution speaks of ‘treason,

bribery, and other high crimes and misdemeanors,’ it refers to, and

includes only, high criminal offences against the United States,

made so by some law of the United States existing when the acts
ART. II—EXECUTIVE DEPARTMENT 589

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777 Id., 409. 778 ten Broek, Partisan Politics and Federal Judgeship Impeachments Since

1903, 23 Minn. L. Rev. 185 (1939).

779Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive

Removal Mechanism for Federal Judges, 38 UCLA L. Rev. 1209, 1229–1233 (1991). 780 Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, Constitutional Grounds for Presicomplained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the

subject of impeachment.’’ 777 The President’s acquittal by a single

vote was no doubt not the result of a choice between the two theories, but the result may be said to have placed a gloss on the impeachment language approximating the theory of the defense.

Later Judicial Impeachments.—With regard to federal

judges, however, several successful impeachments in this Century

appear to establish that the constitutional requirement of ‘‘good behavior’’ and ‘‘high crimes and misdemeanors’’ may conjoin to allow

the removal of judges who have engaged in seriously questionable

conduct, although no specific criminal statute may have been violated. Thus, both Judge Archbald and Judge Ritter were convicted

on articles of impeachment that charged questionable conduct probably not amounting to indictable offenses. 778 It is possible that

Members of Congress may employ different standards with regard

to judges who have life tenure than they do with regard to other

officers of the Government who either serve for a term of years or

who serve at the pleasure of others who serve for a term of years,

but such a differentiation places a substantial burden upon the language of the Constitution.

With regard to the three most recent judicial impeachments,

Judges Claiborne and Nixon had previously been convicted of

criminal offenses, while Judge Hastings had been acquitted of

criminal charges after trial. The impeachment articles charged

both the conduct for which he had been indicted and trial conduct.

Clearly, he was charged and convicted with criminal offenses, it

being a separate question what effect the court acquittal should

have. 779

The Nixon Impeachment.—For the first time in over a hundred years and for only the second time in the Nation’s history,

Congress moved to impeach the President of the United States, a

move forestalled only by the resignation of President Nixon on August 9, 1974. In the course of the proceedings, there recurred strenuous argument with regard to the nature of an impeachable offense, whether only criminally-indictable actions qualify for that

status or whether the definition is broader, and, of course, no resolution was reached. 780
590 ART. II—EXECUTIVE DEPARTMENT

Sec. 4—Powers and Duties of the President Impeachment

dential Impeachments, 93d Congress, 2d sess. (1974) (Comm. Print); J. St. Clair, et

al., Legal Staff of the President, Analysis of the Constitutional Standard for Presidential Impeachment (Washington: 1974); Office of Legal Counsel, Department of

Justice, Legal Aspects of Impeachment: An Overview, and Appendix I (Washington:

1974). And see R. BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (Cambridge: 1973), which preceded the instant controversy. The House Judiciary Committee recommended three articles of impeachment, for conduct at least one of

which, refusal to honor the Committee’s subpoenas, was not an indictable offense,

and a second that mixed indictable and nonindictable offenses. Impeachment of

Richard M. Nixon, President of the United States, H. Rept. No. 93–1305, 93d Cong.,

2d sess. (1974). Mr. Nixon’s resignation of course precluded further action on the

issue, although the articles were submitted to and ‘‘accepted’’ by the House of Representatives. 120 CONG. REC. 29219–29362 (1974). 781The question first arose during the grand jury investigation of former Vice

President Agnew, during which the United States, through the Solicitor General, argued that the Vice President and all civil officers were not immune from the judicial

process and that removal need not precede indictment, but as to the President it

was argued that for a number of constitutional and practical reasons the President

was not subject to the ordinary criminal process. Memorandum for the United

States, Application of Spiro T. Agnew, Civil No. 73–965 (D.Md., filed October 5,

1973). Courts have specifically held that a federal judge is indictable and may be

convicted prior to removal from office. United States v. Claiborne, 727 F.2d 842,

847–848 (9th Cir.), cert. den., 469 U.S. 829 (1984); United States v. Hastings, 681

F.2d 706, 710–711 (11th Cir.), cert. den., 459 U.S. 1203 (1983); United States, v.

Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. den. sub nom., Kerner v. United States,

417 U.S. 976 (1974). 782The grand jury had named the President as an unindicted coconspirator in

the case of United States v. Mitchell, et al., No. 74–110 (D.D.C.), apparently in the

belief that he was not actually indictable while in office. The Supreme Court agreed

to hear the President’s claim that the grand jury acted outside its authority, but

finding that resolution of the issue was unnecessary to decision of the executive

privilege claim it dismissed the petition for certiorari of the President as improvidently granted. United States v. Nixon, 418 U.S. 683, 687 n. 2 (1974). 783 Both sought to challenge the use under Rule XI of a trial committee to hear

the evidence and report to the full Senate, which would then carry out the trial.

The rule was adopted in the aftermath of an embarrassingly sparse attendance at

the trial of Judge Louderback in 1935. NATIONAL COMM. REPORT, op. cit., n. 755, 50–

53, 54–57; Grimes, op. cit., n. 779, 1233–1237.

A second issue arose that apparently had not been considered

before: whether persons subject to impeachment could be indicted

and tried prior to impeachment and conviction or whether indictment could only follow the removal from office. In fact, the argument was really directed only to the status of the President, inasmuch as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were not of that

calibre. 781 That issue similarly remained unsettled, the Supreme

Court declining to provide some guidance in the course of deciding

a case on executive privilege. 782

Judicial Review of Impeachments.—It was long assumed

that no judicial review of the impeachment process was possible,

that impeachment presents a true ‘‘political question’’ case. That

assumption was not contested until very recently, when Judges

Nixon and Hastings challenged their Senate convictions. 783 But
ART. II—EXECUTIVE DEPARTMENT 591

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784 Nixon v. United States, 744 F.Supp. 9 (D.D.C. 1990), affd. 938 F.2d 239

(D.C.Cir. 1991), cert. granted, 112 S.Ct. 1158 (1992). However, in Hastings v. United

States, 802 F.Supp. 490 (D.D.C. 1992), the court did reach the merits and held that

at least in the instance of Judge Hastings, who had been acquitted in court of the

criminal charges for the conduct relied on by the Senate, he was entitled to a trial

before the full Senate without the interposition of the trial committee.

federal courts, setting the stage for Supreme Court consideration,

held the challenges to be nonjusticiable, that the Constitution’s

conferral on the Senate of the ‘‘sole’’ power to try impeachments

demonstrated a textually demonstrable constitutional commitment

of trial procedures to the Senate to decide without court review. 784