ARTICLE II

EXECUTIVE DEPARTMENT

CONTENTS

Page

Section 1. The President ........................................................................................................... 457

Clause 1. Powers and Term of the President ................................................................... 457

Nature and Scope of Presidential Power .................................................................. 457

Creation of the Presidency .................................................................................. 457

Executive Power: Theory of the Presidential Office .......................................... 459

Hamilton and Madison ................................................................................. 459

The Myers Case ............................................................................................ 462

The Curtiss-Wright Case .............................................................................. 462

The Youngstown Case ................................................................................... 464

The Zivotofsky Case ...................................................................................... 465

The Practice in the Presidential Office ....................................................... 469

Executive Power: Separation-of-Powers Judicial Protection ............................ 470

Tenure ........................................................................................................................... 474

Clauses 2–4. Election ......................................................................................................... 475

Electoral College .......................................................................................................... 476

“Appoint” ............................................................................................................... 477

State Discretion in Choosing Electors ................................................................ 477

Constitutional Status of Electors ........................................................................ 479

Electors as Free Agents ....................................................................................... 480

Clause 5. Qualifications ..................................................................................................... 482

Clause 6. Presidential Succession ..................................................................................... 484

Clause 7. Compensation and Emoluments ....................................................................... 484

Clause 8. Oath of Office ..................................................................................................... 485

Section 2. Powers and Duties of the President ....................................................................... 486

Clause 1. Commander-In-Chiefship; Presidential Advisers; Pardons ............................ 486

Commander-In-Chief ................................................................................................... 486

Development of the Concept ............................................................................... 486

The Limited View .......................................................................................... 486

The Prize Cases ............................................................................................ 487

Impact of the Prize Cases on World Wars I and II ................................... 489

Presidential Theory of the Commander-in-Chiefship in World War II—And

Beyond ............................................................................................................... 489

Presidential War Agencies ............................................................................ 490

Constitutional Status of Presidential Agencies .......................................... 491

Evacuation of the West Coast Japanese ..................................................... 491

Presidential Government of Labor Regulations ......................................... 492

Sanctions Implementing Presidential Directives ....................................... 493

The Postwar Period ...................................................................................... 494

The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization ..................................................................... 496

The Historic Use of Force Abroad ............................................................... 497

The Theory of Presidential Power ............................................................... 499

The Power of Congress to Control the President’s Discretion .................. 500

453
Section 2. Powers and Duties of the President—Continued

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

The President as Commander of the Armed Forces ......................................... 503

The Commander-in-Chief a Civilian Officer ............................................... 505

Martial Law and Constitutional Limitations .................................................... 506

Martial Law in Hawaii ................................................................................. 508

Articles of War: The Nazi Saboteurs ........................................................... 509

Articles of War: World War II Crimes ......................................................... 511

Articles of War: Response to the Attacks of September 11, 2001 ............. 511

Martial Law and Domestic Disorder ........................................................... 513

Presidential Advisers .................................................................................................. 514

The Cabinet .......................................................................................................... 514

Pardons and Reprieves ............................................................................................... 515

The Legal Nature of a Pardon ............................................................................ 515

Scope of the Power ............................................................................................... 517

Offenses Against the United States: Contempt of Court .......................... 518

Effects of a Pardon: Ex parte Garland ........................................................ 519

Limits to the Efficacy of a Pardon ............................................................... 520

Congress and Amnesty ........................................................................................ 521

Clause 2. Treaties and Appointment of Officers .............................................................. 521

The Treaty-Making Power .......................................................................................... 522

President and Senate ........................................................................................... 522

Negotiation, a Presidential Monopoly ......................................................... 522

Treaties as Law of the Land ............................................................................... 523

Origin of the Conception .............................................................................. 526

Treaties and the States ................................................................................ 526

Treaties and Congress .................................................................................. 528

Congressional Repeal of Treaties ................................................................ 531

Treaties Versus Prior Acts of Congress ....................................................... 532

When Is a Treaty Self-Executing ................................................................. 533

Treaties and the Necessary and Proper Clause ......................................... 534

Constitutional Limitations on the Treaty Power .............................................. 536

Interpretation and Termination of Treaties as International Compacts ........ 540

Termination of Treaties by Notice ............................................................... 541

Determination Whether a Treaty Has Lapsed ........................................... 544

Status of a Treaty a Political Question ....................................................... 545

Indian Treaties ..................................................................................................... 546

Present Status of Indian Treaties ............................................................... 547

International Agreements Without Senate Approval ............................................... 548

Executive Agreements by Authorization of Congress ....................................... 549

Reciprocal Trade Agreements ...................................................................... 549

The Constitutionality of Trade Agreements ............................................... 550

The Lend-Lease Act ...................................................................................... 551

International Organizations ......................................................................... 551

Executive Agreements Authorized by Treaties .................................................. 552

Arbitration Agreements ................................................................................ 552

Agreements Under the United Nations Charter ........................................ 552

Status of Forces Agreements ....................................................................... 553

Executive Agreements on the Sole Constitutional Authority of the

President ........................................................................................................... 553

The Litvinov Agreement ............................................................................... 556

The Hull-Lothian Agreement ....................................................................... 556

The Post-War Years ...................................................................................... 557

454 ART. II—EXECUTIVE DEPARTMENT
Section 2. Powers and Duties of the President—Continued

Clause 2. Treaties and Appointment of Officers—Continued

The Domestic Obligation of Executive Agreements .......................................... 557

State Laws Affecting Foreign Relations—Dormant Federal Power and

Preemption ........................................................................................................ 561

The Executive Establishment .................................................................................... 563

Office ...................................................................................................................... 563

Ambassadors and Other Public Ministers .................................................. 563

Presidential Diplomatic Agents ................................................................... 565

Appointments and Congressional Regulation of Offices ................................... 567

Congressional Regulation of Conduct in Office .......................................... 573

The Loyalty Issue ......................................................................................... 574

Financial Disclosure and Limitations ......................................................... 575

Legislation Increasing Duties of an Officer ................................................ 576

Stages of Appointment Process ........................................................................... 576

Nomination .................................................................................................... 576

Senate Approval ............................................................................................ 576

When Senate Consent Is Complete ............................................................. 577

The Removal Power ............................................................................................. 577

The Myers Case ............................................................................................ 577

The Humphrey Case ..................................................................................... 580

The Wiener Case ........................................................................................... 581

The Watergate Controversy ......................................................................... 582

The Removal Power Rationalized ................................................................ 583

Inferior Officers ............................................................................................. 586

The Presidential Aegis: Demands for Papers .................................................... 587

Private Access to Government Information ................................................ 589

Prosecutorial and Grand Jury Access to Presidential Documents ........... 591

Congressional Access to Executive Branch Information ........................... 594

Clause 3. Vacancies During Recess of Senate .................................................................. 595

Recess Appointments .................................................................................................. 595

Judicial Appointments ......................................................................................... 598

Ad Interim Designations ..................................................................................... 599

Section 3. Legislative, Diplomatic, and Law Enforcement Duties of the President ............ 599

Legislative Role of the President ...................................................................................... 599

The Conduct of Foreign Relations .................................................................................... 600

The Right of Reception: Scope of the Power ............................................................. 600

The Presidential Monopoly ......................................................................................... 600

The Logan Act ...................................................................................................... 601

A Formal or a Formative Power ......................................................................... 602

The President’s Diplomatic Role ......................................................................... 602

Jefferson’s Real Position ...................................................................................... 603

The Power of Recognition ........................................................................................... 604

The Case of Cuba ................................................................................................. 605

The Power of Nonrecognition .............................................................................. 606

Congressional Implementation of Presidential Policies ........................................... 607

The Doctrine of Political Questions ........................................................................... 608

Recent Statements of the Doctrine ..................................................................... 610

The President As Law Enforcer ........................................................................................ 613

Powers Derived From The “Take Care” Duty ........................................................... 613

Impoundment of Appropriated Funds ....................................................................... 615

Power and Duty of the President in Relation to Subordinate Executive

Officers ...................................................................................................................... 619

ART. II—EXECUTIVE DEPARTMENT 455
Section 3. Legislative, Diplomatic, and Law Enforcement Duties of the

President—Continued

The President As Law Enforcer—Continued

Administrative Decentralization Versus Jacksonian Centralism .................... 620

Congressional Power Versus Presidential Duty to the Law ............................ 621

Myers Versus Morrison ........................................................................................ 621

Power of the President to Guide Enforcement of the Penal Law .................... 622

The President as Law Interpreter ............................................................................. 623

Military Power in Law Enforcement: The Posse Comitatus ................................... 624

Suspension of Habeas Corpus by the President ....................................................... 626

Preventive Martial Law .............................................................................................. 626

The Debs Case ...................................................................................................... 627

Present Status of the Debs Case ........................................................................ 628

The President’s Duty in Cases of Domestic Violence in the States ........................ 629

The President as Executor of the Law of Nations ................................................... 629

Protection of American Rights of Person and Property Abroad ..................................... 629

Congress and the President versus Foreign Expropriation .................................... 631

Presidential Action In the Domain of Congress: the Steel Seizure Case ...................... 632

The Doctrine of the Opinion of the Court ................................................................. 632

The Doctrine Considered ............................................................................................ 633

Power Denied by Congress ......................................................................................... 636

Presidential Immunity From Judicial Direction ............................................................. 638

Unofficial Conduct ....................................................................................................... 642

The President’s Subordinates ..................................................................................... 642

Commissioning Officers ...................................................................................................... 644

Section 4. Impeachment ............................................................................................................ 644

Impeachment ...................................................................................................................... 644

Persons Subject to Impeachment ............................................................................... 645

Judges ................................................................................................................... 646

Judgment—Removal and Disqualification ................................................................ 648

Impeachable Offenses ................................................................................................. 649

The Chase Impeachment ............................................................................................ 650

Other Impeachments of Judges ................................................................................. 651

The Johnson Impeachment ........................................................................................ 652

The Nixon Impeachment Proceedings ....................................................................... 653

The Clinton Impeachment .......................................................................................... 654

Judicial Review of Impeachments ............................................................................. 657

456 ART. II—EXECUTIVE DEPARTMENT
EXECUTIVE DEPARTMENT

ARTICLE II

SECTION 1. Clause 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 elected by the people

and was 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, from 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

1 The background and the action of the Convention is comprehensively examined in C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 (1923). A review of the

Constitution’s provisions being put into operation is J. HART, THE AMERICAN PRESIDENCY IN ACTION 1789 (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. (1909),

2632–2633.

457
not in all instances. The Articles of Confederation 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

Nevertheless, 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 reeligibility, 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 in

3 C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 chs. 1–3 (1923).

4 The plans offered and the debate is reviewed in C. THACH, THE CREATION OF THE

PRESIDENCY 1775–1789 ch. 4 (1923). The text of the Virginia Plan may be found in 1

M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 21 (rev. ed. 1937).

5 Id. at 65.

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

7 Id. at 93.

Sec. 1—The President Clause 1—Powers and Term of the President

458 ART. II—EXECUTIVE DEPARTMENT
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

Hamilton and Madison.—Hamilton’s defense of President Washington’s issuance of a neutrality proclamation upon the outbreak of

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

9 Id. at 185.

10 Id. at 401.

11 Id. at 185.

12 Id. at 401.

13 Id. at 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 116 (1840).

16 W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 202, 205 (1908).

Sec. 1—The President Clause 1—Powers and Term of the President

ART. II—EXECUTIVE DEPARTMENT 459
war between France and Great Britain contains 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 Hamilton wrote:

“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 government. The

general doctrine of our Constitution then is, that the executive power

17 32 WRITINGS OF GEORGE WASHINGTON 430 (J. Fitzpatrick ed., 1939). See C. THOMAS,

AMERICAN NEUTRALITY IN 1793: A STUDY IN CABINET GOVERNMENT (1931).

Sec. 1—The President Clause 1—Powers and Term of the President

460 ART. II—EXECUTIVE DEPARTMENT
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 contentiousness still settles upon the reading of the vesting clauses of Articles

I, II, and III.21

18 7 WORKS OF ALEXANDER HAMILTON 76, 80–81 (J. C. Hamilton ed., 1851) (emphasis in original).

19 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 611–654 (1865).

20 Id. at 621. In the congressional debates on the President’s power to remove

executive officeholders, cf. C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 ch. 6

(1923), 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 1467, 1474–1483, 1485–1486 (1938).

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, id. at 1377, 1406, 1420.

Sec. 1—The President Clause 1—Powers and Term of the President

ART. II—EXECUTIVE DEPARTMENT 461
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 powers, but rather is inherent. The doctrine was

then combined with Hamilton’s contention that control of foreign

relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge

to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that

22 272 U.S. 52 (1926). See Corwin, The President’s Removal Power Under the

Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1467 (1938).

23 C. THACH, THE CREATION OF THE PRESIDENCY, 1775–1789, ch. 6 (1923).

24 Myers v. United States, 272 U.S. 52, 163–164 (1926). Professor Taft had held

different views. “The true view of the executive functions is, as I conceive it, that

the president can exercise no power which cannot be fairly and reasonably traced to

some specific grant of power or justly implied and included within such express grant

as proper and necessary in its exercise. Such specific grant must be either in the

federal constitution or in an act of Congress passed in pursuance thereof. There is

no undefined residuum of power which he can exercise because it seems to him to

be in the public interest. . . .” W. TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 139–

140 (1916).

25 295 U.S. 602 (1935).

26 487 U.S. 654, 685–93 (1988).

27 343 U.S. 579 (1952).

28 299 U.S. 304 (1936).

Sec. 1—The President Clause 1—Powers and Term of the President

462 ART. II—EXECUTIVE DEPARTMENT
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 it was 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.” 29

Scholarly criticism of Justice Sutherland’s reasoning has demonstrated that his essential postulate, the passing of sovereignty in

external affairs directly from the British Crown to the colonies as a

collective unit, is in error.30 Dicta in later cases controvert the con29 299 U.S. at 315–16, 318, 319.

30 Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s

Theory, 55 YALE L. J. 467 (1946); Patterson, In re United States v. Curtiss-Wright

Corp., 22 TEXAS L. REV. 286, 445 (1944); Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 YALE L. J. 1 (1973), reprinted in C. LOFGREN,

GOVERNMENT FROM REFLECTION AND CHOICE: CONSTITUTIONAL ESSAYS ON WAR, FOREIGN RELATIONS, AND FEDERALISM 167 (1986).

Sec. 1—The President Clause 1—Powers and Term of the President

ART. II—EXECUTIVE DEPARTMENT 463
clusions drawn in Curtiss-Wright about the foreign relations power

being inherent rather than subject to the limitations of the delegated powers doctrine.31 The holding in Kent v. Dulles 32 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.33 The case nonetheless remains with

Myers v. United States the source and support of those contending

for broad inherent executive powers.34

The Youngstown Case.—The first case in the post-World War

II era to consider extensively the “inherent” powers of the President, or the issue of what executive powers are vested by the first

section of Article II, was Youngstown Sheet & Tube Co. v. Sawyer,

35

but its multiple opinions did not reflect a uniform understanding of

these matters. 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

31 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).

32 357 U.S. 116, 129 (1958).

33 Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id.

at 291, 293–94 & n.24, 307–08. But see Dames & Moore v. Regan, 453 U.S. 654,

659–62 (1981), qualified by id. at 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). In Loving v. United

States, 517 U.S. 748 (1996), the Court recurred to the original setting of CurtissWright, a delegation to the President without standards. Congress, the Court found,

had delegated to the President authority to structure the death penalty provisions

of military law so as to bring the procedures, relating to aggravating and mitigating

factors, into line with constitutional requirements, but Congress had provided no

standards to guide the presidential exercise of the authority. Standards were not

required, held the Court, because his role as Commander-in-Chief gave him responsibility to superintend the military establishment and Congress and the President

had interlinked authorities with respect to the military. Where the entity exercising

the delegated authority itself possesses independent authority over the subject matter, the familiar limitations on delegation do not apply. Id. at 771–74.

34 That the opinion “remains authoritative doctrine” is stated in L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 25–26 (1972). It is used as an interpretive precedent in AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES see, e.g., §§ 1, 204, 339 (1987). The Restatement is

circumspect, however, about the reach of the opinion in controversies between presidential and congressional powers.

35 343 U.S. 579 (1952).

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464 ART. II—EXECUTIVE DEPARTMENT
an exercise of the President’s executive powers that were conveyed

by the first section of Article II, by the obligation to enforce the

laws, and by the vesting of the function of commander-in-chief. By

vote of 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 that did not include seizure. Thus, four of the majority Justices 36 appear to have been decisively influenced by the fact

that Congress had denied the power claimed and that 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 37 appear to have rejected the government’s argument on

the merits while three 38 accepted it in large measure. Despite the

inconclusiveness of the opinions, it seems clear that the result was

a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss-Wright.

39

The Zivotofsky Case.—The Supreme Court’s decision in Zivotofsky

v. Kerry appears to be the first instance in which the Court has

held that an act of Congress unconstitutionally infringed upon a

foreign affairs power of the President.40 The case concerned a legis36 343 U.S. 593, 597–602 (Justice Frankfurter concurring, though he also noted

he expressly joined Justice Black’s opinion as well), 634, 635–40 (Justice Jackson

concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).

37 343 U.S. at 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).

38 343 U.S. at 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).

39 Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright

Corp., 299 U.S. 304 (1936). In Dames & Moore v. Regan, 453 U.S. 654, 659–62, 668–69

(1981), the Court turned to Youngstown as embodying “much relevant analysis” on

an issue of presidential power. And, in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23

(2006), the Court cited Youngstown with approval, as did Justice Kennedy, in a concurring opinion joined by three other Justices, id. at 638.

40 Zivotofsky v. Kerry, 576 U.S. ___, No. 13–628, slip op. at 2 (2015). It appears

that in every prior instance where the Supreme Court considered executive action

in the field of foreign affairs that conflicted with the requirements of a federal statute, the Court had ruled the executive action invalid. See id. at 2 (Roberts, C.J.,

dissenting) (“For our first 225 years, no President prevailed when contradicting a

statute in the field of foreign affairs.”); Medellin v. Texas, 552 U.S. 491 (2008) (President could not direct state courts to reconsider cases barred from further review by

state and federal procedural rules in order to implement requirements flowing from

a ratified U.S. treaty that was not self-executing, as legislative authorization from

Congress was required); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military tribunals convened by presidential order did not comply with the Uniform Code of Military Justice); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Little v.

Barreme, 6 U.S. (2 Cr.) 170 (1804) (upholding damage award to owners of U.S. merchant ship seized during quasi-war with France, when Congress had not authorized

such seizures).

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lative enactment requiring the Secretary of State to identity a

Jerusalem-born U.S. citizen’s place of birth as “Israel” on his passport if requested by the citizen or his legal guardian.41 The State

Department had declined to follow this statutory command, citing

longstanding executive policy of declining to recognize any country’s sovereignty over the city of Jerusalem.42 It argued the statute

impermissibly intruded upon the President’s constitutional authority over the recognition of foreign nations and their territorial bounds,

and attempted to compel “the President to contradict his recognition position regarding Jerusalem in official communications with

foreign sovereigns.” 43

The Zivotofsky Court evaluated the permissibility of the State

Department’s non-adherence to a statutory command using the framework established by Justice Jackson’s concurring opinion in

Youngstown, under which executive action taken in contravention

of a legislative enactment will only be sustained if the President’s

asserted power is both “exclusive” and “conclusive” on the matter.44

The Constitution does not specifically identify the recognition of foreign governments among either Congress’s or the President’s enumerated powers. But in an opinion that employed multiple modes

of constitutional interpretation, the Court concluded that the Constitution not only conferred recognition power to the President, but

also that this power was not shared with Congress.

The Court’s analysis of recognition began with an examination

of “the text and structure of the Constitution,” which it construed

as reflecting the Founders’ understanding that the recognition power

was exercised by the President.45 Much of the Court’s discussion of

the textual basis for the recognition power focused on the President’s responsibility under the Reception Clause to “receive Ambassadors and other public Ministers.” 46 At the time of the founding,

the Court reasoned, receiving ambassadors of a foreign government was tantamount to recognizing the foreign entity’s sovereign

claims, and it was logical to infer “a Clause directing the President

41 Foreign Relations Authorization Act, Fiscal Year 2003, P.L. 107–228, § 214(d),

116 Stat. 1350, 1366 (2002).

42 Zivotofsky, slip op. at 4. The State Department’s Foreign Affairs Manual generally provides that in issuing passports to U.S. citizens born abroad, the passport

shall identify the country presently exercising sovereignty over the citizen’s birth

location. 7 Foreign Affairs Manual § 1330 Appendix D (2008). The Manual provides

that employees should “write JERUSALEM as the place of birth in the passport. Do

not write Israel, Jordan or West Bank for a person born within the current municipal borders of Jerusalem.” Id. at § 1360 Appendix D.

43 Zivotofsky, slip op. at 7 (quoting Brief from Respondent at 48).

44 Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38

(1952) (Jackson, J., concurring opinion)).

45 Id. at 8–11.

46 U.S.CONST., art. II, § 3, cl. 4. Zivotofsky, slip op. at 9–10.

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466 ART. II—EXECUTIVE DEPARTMENT
alone to receive ambassadors” as “being understood to acknowledge

his power to recognize other nations.” 47 In addition to the Reception Clause, the Zivotofsky Court identified additional Article II provisions as providing support for the inference that the President

retains the recognition power,48 including the President’s power to

“make Treaties” with the advice and consent of the Senate,49 and

to appoint ambassadors and other ministers and consuls with Senate approval.50

The Zivotofsky Court emphasized “functional considerations” supporting the Executive’s claims of exclusive authority over recognition,51 noting that recognition is a matter on which the United States

must “speak with . . . one voice,” 52 and the executive branch is better suited than Congress to exercise this power for several reasons,

including its “characteristic of unity at all times,” as well as its ability to engage in “delicate and often secret diplomatic contacts that

may lead to a decision on recognition” and “take the decisive, unequivocal action necessary to recognize other states at international law.” 53

The Court also concluded that historical practice and prior jurisprudence gave credence to the President’s unilateral exercise of

the recognition power. Here, the Court acknowledged that the historical record did not provide unequivocal support for this view, but

characterized “the weight” of historical evidence as reflecting an understanding that the President’s power over recognition is exclusive.54 Although the Executive had consistently claimed unilateral

recognition authority from the Washington Administration onward,

and Congress had generally acquiesced to the President’s exercise

of such authority, there were instances in which Congress also played

a role in matters of recognition. But the Zivotofsky Court observed

that in all earlier instances, congressional action was consistent with,

47 Zivotofsky, slip op. at 9–10. The Court observed that records of the Constitutional Convention were largely silent on the recognition power, but that contemporary writings by prominent international legal scholars identified the act of receiving ambassadors as the virtual equivalent of recognizing the sovereignty of the sending

state. Id. at 9.

48 Justice Thomas, writing separately and concurring in part with the majority’s judgment, would have located the primary source of the President’s recognition

power as the Vesting Clause. Zivotofsky, slip op. at 1 (Thomas, J., concurring and

dissenting in part with the Court’s judgment). The controlling five-Justice opinion

declined to reach the issue of whether the Vesting Clause provided support for the

President’s recognition power. Zivotofsky, slip op. at 10 (majority opinion).

49 U.S. CONST., art. II, § 2, cl. 2.

50 Id.

51 Zivotofsky, slip op. at 11.

52 Id. (quoting Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003), and Crosby

v. Nat. Foreign Trade Council, 530 U.S. 363, 381 (2000)).

53 Id.

54 Id. at 20.

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ART. II—EXECUTIVE DEPARTMENT 467
and deferential to, the President’s recognition policy, and the Court

characterized prior congressional involvement as indicating “no more

than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power.” 55

The Court also stated that a “fair reading” of its prior jurisprudence demonstrated a longstanding understanding of the recognition power as an executive function, notwithstanding “some isolated statements” in those cases that might have suggested a

congressional role.56

Having determined that the Constitution assigns the President

with exclusive authority over recognition of foreign sovereigns, the

Zivotofsky Court ruled that the statutory directive that the State

Department honor passport requests of Jerusalem-born U.S. citizens to have their birthplace identified as “Israel” was an impermissible intrusion on the President’s recognition authority. According

to the Court, Congress’s authority to regulate the issuance of passports, though wide in scope, may not be exercised in a manner intended to compel the Executive “to contradict an earlier recognition determination in an official document of the Executive Branch”

that is addressed to foreign powers.57

While the Zivotofsky decision establishes that the recognition

power belongs exclusively to the President, its relevance to other

foreign affairs issues remains unclear. The opinion applied a functionalist approach in assessing the exclusivity of executive power

on the issue of recognition, but did not opine on whether this approach was appropriate for resolving other inter-branch disputes concerning the allocation of constitutional authority in the field of foreign affairs. The Zivotofsky Court also declined to endorse the

Executive’s broader claim of exclusive or preeminent presidential

55 Id. The Court observed that in no prior instance had Congress enacted a statute “contrary to the President’s formal and considered statement concerning recognition.” Id. at 21 (citing Zivotofsky v. Secretary of State, 725 F. 3d 197, 203, 221

(D.C. Cir. 2013) (Tatel, J., concurring)).

56 See Zivotofsky, slip op. at 14. The Court observed that earlier rulings touching on the recognition power had dealt with the division of power between the judicial and political branches of the federal government, or between the federal government and the states. Id. at 14–16 (citing Williams v. Suffolk Ins. Co., 38 U.S. 415

(1839) (ruling that an executive determination concerning foreign sovereign claims

to the Falkland Islands was conclusive upon the judiciary); United States v. Belmont,

315 U.S. 203 (1942) (concerning effect of executive agreement involving the recognition of the Soviet Union and settlement of claims disputes upon state law); United

States v. Pink, 315 U.S. 203 (1942) (similar to Belmont); Banco Nacional De Cuba v.

Sabbatino, 376 U.S. 398, 410 (1963) (involving the application of the act of state

doctrine to the government of Cuba and stating that “Political recognition is exclusively a function of the Executive . . . ”)).

57 See Zivotofsky, slip op. at 29. The Court approvingly cited its description in

Urtetiqui v. D’Arcy, 34 U.S. 692 (1835), of a passport as being, “from its nature and

object. . .addressed to foreign powers.” See id. at 27.

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468 ART. II—EXECUTIVE DEPARTMENT
authority over foreign relations, and it appeared to minimize the

reach of some of the Court’s earlier statements in Curtiss-Wright 58

regarding the expansive scope of the President’s foreign affairs power.59

The Court also repeatedly noted Congress’s ample power to legislate on foreign affairs, including on matters that precede and follow from the President’s act of foreign recognition, in ways that could

render recognition a “hollow act.” 60 For example, Congress could

institute a trade embargo, declare war upon a foreign government

that the President had recognized, or decline to appropriate funds

for an embassy in that country. While all of these actions could potentially be employed by the legislative branch to express opposition to executive policy, they would not impermissibly interfere with

the President’s recognition power.61

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.62

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.” 63 Although the modern theory of presidential power was conceived primarily by Alexander Hamilton, the mod58 See United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936). For further discussion of this case, see supra Section 1. The President, Clause 1. Powers

and Term of the President, Executive Power: Theory of the Presidential Office, The

Curtiss-Wright Case.

59 The majority opinion observed that Curtiss-Wright had considered the constitutionality of a congressional delegation of power to the President, and that its description of the Executive as the sole organ of foreign affairs was not essential to its

holding in the case. Zivotofsky, slip op. at 18.

60 Id. at 13.

61 Id. at 13, 27.

62 For the debates on the constitutionality of the Purchase, see E. BROWN, THE

CONSTITUTIONAL HISTORY OF THE LOUISIANA PURCHASE, 1803–1812 (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 (1951),

with L. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY (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 MESSAGES AND PAPERS OF THE

PRESIDENTS 569 (J. Richardson comp., 1897).

63 H. FORD, THE RISE AND GROWTH OF AMERICAN POLITICS 293 (1898).

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ART. II—EXECUTIVE DEPARTMENT 469
ern conception of the presidential office was the contribution primarily of Andrew Jackson.64

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 to permit Congress a greater degree of discretion.65

Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in

two briefs of the Department of Justice’s Office of Legal Counsel,

which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine.66 The two opinions withdraw from the Department’s earlier contention, following Buckley v. Valeo, that the

execution of the laws is an executive function that may be carried

out only by persons appointed pursuant to the Appointments Clause,

thus precluding delegations to state and local officers and to private parties (as in qui tam actions), as well as providing glosses on

the Take Care Clause (Article II, § 3) and other provisions of the

Constitution. Whether these memoranda signal long-term change

depends on several factors, including whether they are adhered to

by subsequent administrations.

In striking down the congressional veto as circumventing Article I’s bicameralism and presentment requirements attending the

exercise of legislative power, the Court also suggested in INS v.

Chadha 67 that the particular provision in question, involving veto

of the Attorney General’s decision to suspend deportation of an alien,

64 E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787–1957, ch. 1 (4th ed. 1957).

65 Some cases also did so 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,

109–43 (1976).

66 Memorandum for John Schmidt, Associate Attorney General, from Assistant

Attorney General Walter Dellinger, re: Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the

General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, re: The Constitutional Separation of Powers Between the President

and Congress (May 7, 1996). The principles laid down in the memoranda depart

significantly from previous positions of the Department of Justice. For conflicting

versions of the two approaches, see Constitutional Implications of the Chemical Weapons Convention: Hearings on the Constitution, Federalism, and Property Rights Before the Senate Judiciary Subcommittee, 104th Cong., 2d Sess. (1996), 11–26, 107–10

(Professor John C. Woo), 80–106 (Deputy Assistant Attorney General Richard L. Shiffrin).

67 462 U.S. 919 (1983).

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470 ART. II—EXECUTIVE DEPARTMENT
in effect allowed Congress impermissible participation in execution

of the laws.68 And, in Bowsher v. Synar,

69 the Court held that Congress had invalidly vested executive functions in a legislative branch

official. Underlying both decisions was the premise, stated in Chief

Justice Burger’s opinion of the Court in Chadha, that “the powers

delegated to the three Branches are functionally identifiable,” distinct, and definable.70 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.71 On the other hand, in the

independent counsel case, although acknowledging that the contested statute restricted a constitutionally delegated function (law

enforcement), the Court upheld the statute, using 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.72

At issue in Synar were the responsibilities vested in the Comptroller General by the “Gramm-Rudman-Hollings” Deficit Control Act,73

68 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.” 462 U.S. at 954–55. The Court’s

uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v.

Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

69 478 U.S. 714 (1986).

70 462 U.S. at 951.

71 Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (1992). Evidently, however, although Justices Kennedy and Souter joined this part of the opinion, id. at

579 (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.

72 Morrison v. Olson, 487 U.S. 654 (1988). 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, 481 U.S. 787 (1987), the Court, in upholding the power

of federal judges to appoint private counsel to prosecute contempt of court actions,

rejected the assertion that the judiciary usurped executive power in appointing such

counsel.

73 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99–

177, 99 Stat. 1038.

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ART. II—EXECUTIVE DEPARTMENT 471
which set maximum deficit amounts for federal spending for fiscal

years 1986 through 1991, and which directed across-the-board cuts

in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year

containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet

the statutory target. The President was required to implement the

reductions specified in the Comptroller’s report. The Court viewed

these functions of the Comptroller “as plainly entailing execution

of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of ‘execution’ of

the law,” especially where “exercise [of] judgment” is called for, and

where the President is required to implement the interpretation.74

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.” 75

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.” 76 Moreover, Justice White noted, “rules

and adjudications by the agencies meet the Court’s own definition

of legislative action . . . .” 77 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.78 The Court answered these assertions

on two levels: that the bicameral protection “is not necessary” when

legislative power has been delegated to another branch confined to

implementing statutory standards set by Congress, and that “the

Constitution does not so require.” 79 In the same context, the Court

acknowledged without disapproval that it had described some agency

74 478 U.S. at 732–33.

75 478 U.S. at 734.

76 462 U.S. at 985–86.

77 462 U.S. at 989.

78 478 U.S. at 736, 750.

79 462 U.S. at 953 n.16.

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472 ART. II—EXECUTIVE DEPARTMENT
action as resembling lawmaking.80 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.81 The independent counsel was assuredly more

free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court carefully assessed 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. The Court also considered

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.82

In the course of deciding that the President’s action in approving the closure of a military base, pursuant to statutory authority,

was not subject to judicial review, the Court enunciated a principle

that may mean a great deal, constitutionally speaking, or that may

not mean much of anything.83 The lower court had held that, although review of presidential decisions on statutory grounds might

be precluded, his decisions were reviewable for constitutionality; in

that court’s view, whenever the President acts in excess of his statutory authority, he also violates the Constitution’s separation-ofpowers doctrine. The Supreme Court found this analysis flawed. “Our

80 462 U.S. at 953 n.16.

81 Pub. L. 95–521, title VI, 92 Stat. 1867, as amended by Pub. L. 97–409, 96

Stat. 2039, and Pub. L. 100–191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

82 Morrison v. Olson, 487 U.S. at 693–96. See also Mistretta v. United States,

488 U.S. 361, 380–84, 390–91, 408–11 (1989).

83 Dalton v. Specter, 511 U.S. 462 (1994).

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ART. II—EXECUTIVE DEPARTMENT 473
cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional

violations and claims that an official has acted in excess of his statutory authority.” 84 Thus, the Court distinguished between executive

action undertaken without even the purported warrant of statutory

authorization and executive action in excess of statutory authority.

The former may violate separation of powers, but the latter will

not.85

Doctrinally, the distinction is important and subject to unfortunate application.86 Whether the brief, unilluminating discussion in

Dalton will bear fruit in constitutional jurisprudence, however, is

problematic.

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 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.87

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

84 511 U.S. at 472.

85 See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139,

300–10 (1994).

86 “As a matter of constitutional logic, the executive branch must have some warrant, either statutory or constitutional, for its actions. The source of all Federal Governmental authority is the Constitution and, because the Constitution contemplates

that Congress may delegate a measure of its power to officials in the executive branch,

statutes. The principle of separation of powers is a direct consequence of this scheme.

Absent statutory authorization, it is unlawful for the President to exercise the powers of the other branches because the Constitution does not vest those powers in

the President. The absence of statutory authorization is not merely a statutory defect; it is a constitutional defect as well.” 108 HARV. L. REV. at 305–06 (footnote citations omitted).

87 As to the meaning of “the fourth day of March,” see Warren, Political Practice

and the Constitution, 89 U. PA. L. REV. 1003 (1941).

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474 ART. II—EXECUTIVE DEPARTMENT
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.88

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 certify, 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 Major88 E. Corwin, supra at 34–38, 331–339.

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

ART. II—EXECUTIVE DEPARTMENT 475
ity, 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 truth the

most difficult of all on which we have had to decide.” 89 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.90 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.91 But the college remains despite numerous

89 2 M. Farrand, supra, p. 501.

90 1 id. at 21, 68–69, 80–81, 175–76, 230, 244; 2 id. at 29–32, 57–59, 63–64, 95,

99–106, 108–15, 118–21, 196–97, 401–04, 497, 499–502, 511–15, 522–29.

91 See J. CEASER, PRESIDENTIAL SELECTION: THEORY AND DEVELOPMENT (1979); N. PIERCE,

THE PEOPLES PRESIDENT: THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT-VOTE

ALTERNATIVE (1968). The second presidential election, in 1792, saw the first party inSec. 1—The President Cls. 2–4—Election

476 ART. II—EXECUTIVE DEPARTMENT
efforts to adopt another method, a relic perhaps but still a significant one. Clause 3 has, of course, been superceded by the Twelfth

Amendment.

“Appoint”

The word “appoint” as used in Clause 2 confers on state legislatures “the broadest power of determination.” 92 Upholding a state

law providing for selection of electors by popular vote from districts rather than statewide, the Court described the variety of permissible methods. “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 the legislature; by choice

by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792,

and Tennessee in 1796 and 1800. No question was raised as to the

power of the State to appoint, in any mode its legislature saw fit to

adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was

contemplated by the framers of the Constitution, although it was

soon seen that its adoption by some States might place them at a

disadvantage by a division of their strength, and that a uniform

rule was preferable.” 93

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.94 Its power to

protect the choice of electors from fraud or corruption was susfluence on the electors, with the Federalists and the Jeffersonians organizing to control the selection of the Vice-President. Justice Jackson once noted: “As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.”

Ray v. Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do actually

elect the President and Vice President.

92 McPherson v. Blacker, 146 U.S. 1, 27 (1892).

93 146 U.S. at 28–29.

94 Ex parte Yarbrough, 110 U.S. 651 (1884).

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ART. II—EXECUTIVE DEPARTMENT 477
tained.95 “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.” 96

More recently, substantial curbs on state discretion have been

instituted by both the Court and the Congress. In Williams v. Rhodes,

97

the Court struck down a complex state system that 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.98 Then, in Oregon v. Mitchell,

99 the Court upheld the power of Congress to reduce the voting

age in presidential elections 100 and to set a thirty-day durational

residency period as a qualification for voting in presidential elections.101 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,

102

is that the Fourteenth Amendment limits state discretion in pre95 Burroughs & Cannon v. United States, 290 U.S. 534 (1934).

96 Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884) (quoted in Burroughs and

Cannon v. United States, 290 U.S. 534, 546 (1934)).

97 393 U.S. 23 (1968).

98 “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.” 393 U.S.

at 29.

99 400 U.S. 112 (1970).

100 The Court divided five-to-four on this issue. Of the majority, four relied on

Congress’s power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. 400 U.S. at 119–24 (Justice Black announcing opinion of the Court).

101 The Court divided eight-to-one on this issue. Of the majority, seven relied on

Congress’s power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.

102 393 U.S. 23 (1968).

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478 ART. II—EXECUTIVE DEPARTMENT
scribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment 103 may override state practices

that violate that Amendment and may substitute standards of its

own.

Whether state enactments implementing the authority to appoint electors are subject to the ordinary processes of judicial review within a state, or whether placement of the appointment authority in state legislatures somehow limits the role of state judicial

review, became an issue during the controversy over the Florida recount and the outcome of the 2000 presidential election. The Supreme Court did not resolve this issue, but in a remand to the Florida

Supreme Court, suggested that the role of state courts in applying

state constitutions may be constrained by operation of Clause 2.104

Three Justices elaborated on this view in Bush v. Gore,

105 but the

Court ended the litigation—and the recount—on the basis of an equal

protection interpretation, without ruling on the Article II argument.

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 time 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

103 Cf. Fourteenth Amendment, § 5.

104 Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam)

(remanding for clarification as to whether the Florida Supreme Court “saw the Florida

Constitution as circumscribing the legislature’s authority under Art. II, § 1, cl. 2”).

105 Bush v. Gore, 531 U.S. 98, 111 (2000) (opinion of Chief Justice Rehnquist,

joined by Justices Scalia and Thomas). Relying in part on dictum in McPherson v.

Blacker, 146 U.S. 1, 27 (1892), the three Justices reasoned that, because Article II

confers the authority on a particular branch of state government (the legislature)

rather than on a state generally, the customary rule requiring deference to state

court interpretations of state law is not fully operative, and the Supreme Court “must

ensure that postelection state-court actions do not frustrate” the legislature’s policy

as expressed in the applicable statute. 531 U.S. at 113.

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ART. II—EXECUTIVE DEPARTMENT 479
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.” 106 The truth of the matter is

that the electors are not “officers” at all, by the usual tests of office.107 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,” 108 because electors’ capacity to perform results from no power which was originally resident in the states, but instead springs directly from the

Constitution of the United States.109

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.110 But, in Ray v. Blair,

111

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.” 112 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.” 113

Electors constitutionally remain free to cast their ballots for any

person they wish and occasionally they have done so.114 In 1968,

106 In re Green, 134 U.S. 377, 379–80 (1890).

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

108 Hawke v. Smith, 253 U.S. 221 (1920).

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

110 Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United

States, 290 U.S. 534 (1934).

111 343 U.S. 214 (1952).

112 343 U.S. at 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 1457 (1833).

113 S. REP. NO. 22, 19th Cong., 1st Sess. 4 (1826).

114 All but the most recent instances are summarized in N. Pierce, supra, 122–

124.

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480 ART. II—EXECUTIVE DEPARTMENT
for example, a 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.115

The power either of Congress 116 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 debate.117 It

remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair,

118 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, that 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. Justice Reed wrote 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 longcontinued 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

115 115 CONG. REC. 9–11, 145–171, 197–246 (1969).

116 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.

117 At least thirteen states have statutes binding their electors, but none has

been tested in the courts.

118 343 U.S. 214 (1952).

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ART. II—EXECUTIVE DEPARTMENT 481
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 unconstitutional. A candidacy in the primary is a voluntary act of the applicant. He is not barred, discriminatorily, from participating but

must comply with the rules of the party. Surely one may voluntarily assume obligations to vote for a certain candidate. The state

offers him opportunity to become a candidate for elector on his own

terms, although he must file his declaration before the primary. Ala.

Code, Tit. 17, § 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.” 119 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.” 120

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 at119 343 U.S. at 228–31.

120 343 U.S. at 233.

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482 ART. II—EXECUTIVE DEPARTMENT
tained to the Age of thirty five Years, and been Fourteen Years

a Resident within the United States.

QUALIFICATIONS

All Presidents from Martin Van Buren on were born in the United

States subsequent to the Declaration of Independence. The principal issue with regard to the qualifications set out in this clause 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.121 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.122 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

. . . .” 123 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.124 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 Ameri121 8 U.S.C. § 1401.

122 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. Commissioner, 501 U.S. 868, 886–87 (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. at 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, 702–03

(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).

123 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).

124 25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, § 3 (1709); 4 Geo. 2, ch. 21 (1731).

Sec. 1—The President Cl. 5—Qualifications

ART. II—EXECUTIVE DEPARTMENT 483
can citizens.125 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.

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 is 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,126 a precedent which has been followed subsequently

and which is now permanently settled by section 1 of the Twentyfifth Amendment. That Amendment also 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.

125 See, e.g., Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1 (1968).

126 E. Corwin, supra at 53–59, 344 n.46.

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484 ART. II—EXECUTIVE DEPARTMENT
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.127

Clause 8. Before he enter on the Execution of his Office, he

shall take the following Oath or Affirmation:—“I do solemly 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, 1789,128 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 based

on his own independent decision that they were unwarranted by

the Constitution.129 The idea next turned up in a message by President Lincoln justifying his suspension of the writ of habeas corpus

without obtaining congressional authorization.130 And counsel to President Johnson during his impeachment trial adverted to the theory,

but only in passing.131 Beyond these isolated instances, it does not

127 Cf. 13 Ops. Atty. Gen. 161 (1869), holding that a specific tax by the United

States upon the salary of an officer, to be deducted from the amount which otherwise would by law be payable as such salary, is a diminution of the compensation to

be paid to him which, in the case of the President, would be unconstitutional if the

act of Congress levying the tax was passed during his official term.

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

129 2 J. Richardson, supra, at 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 223–224

(1926).

130 6 J. Richardson, supra, at 25.

131 2 TRIAL OF ANDREW JOHNSON 200, 293, 296 (1868).

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ART. II—EXECUTIVE DEPARTMENT 485
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 Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective

Office, and he shall have Power to grant Reprieves and Pardons

for Offences against the United States, except in Cases of Impeachment.

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.132 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.” 133 Story wrote in

132 May, The President Shall Be Commander in Chief, in THE ULTIMATE DECISION:

THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 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 393 (1836).

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. at 107.

133 THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465.

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486 ART. II—EXECUTIVE DEPARTMENT
his Commentaries: “The propriety of admitting the president to be

commander in chief, so far as to give orders, and have a general

superintendency, was admitted. But it was urged, that it would be

dangerous to let him command in person, without any restraint, as

he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity that he should, take the command

in person; and there was no probability that he would do so, except

in extraordinary emergencies, and when he was possessed of superior military talents.” 134 In 1850, Chief Justice Taney, for the Court,

wrote: “His duty and his power are purely military. As commanderin-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.” 135 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.” 136

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.137 In his famous

message to Congress of July 4, 1861,138 Lincoln advanced the claim

that the “war power” was his for the purpose of suppressing rebel134 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1486 (1833).

135 Fleming v. Page, 50 U.S. (9 How.) 603, 615, 618 (1850).

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

137 1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. §§ 331–334. See also

Martin v. Mott, 25 U.S. (12 Wheat.) 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.

138 7 J. Richardson, supra, at 3221, 3232.

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ART. II—EXECUTIVE DEPARTMENT 487
lion, and in the Prize Cases 139 of 1863 a divided Court sustained

this theory. The immediate issue was the validity of the blockade

that the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.140 The argument was advanced that

a blockade to be valid must be an incident of a “public war” validly

declared, and that only Congress could, by virtue of its power “to

declare war,” constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier

answered: “If a war be made by invasion of a foreign nation, the

President is not only authorized but bound to resist force by force.

He does not initiate the war, but is bound to accept the challenge

without waiting for any special legislative authority. And whether

the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’ Lord Stowell (1 Dodson, 247) observes, ‘It is not the less a

war on that account, for war may exist without a declaration on

either side. It is so laid down by the best writers of the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.’ ”

“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

139 67 U.S. (2 Bl.) 635 (1863).

140 7 J. Richardson, supra, at 3215, 3216, 3481.

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488 ART. II—EXECUTIVE DEPARTMENT
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.” 141

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

the powers that may be claimed for the President under the

Commander-in-Chief Clause at a time of widespread insurrection

were equated with his powers under the clause at a time when the

United States is engaged in a formally declared foreign war.142 And,

because, especially in the early months of the Civil War, Lincoln

performed various acts, such as increasing the Army and Navy, that

admittedly fell within Congress’s constitutional province, it seems

to have been assumed during World Wars I and II that the position

of Commander-in-Chief 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 had,143 with the exception of his suspension of habeas corpus, a power that many attributed to the President in the situation then existing, by virtue of his duty to take

care that the laws be faithfully executed.144 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.145

Presidential Theory of the Commander-in-Chiefship in

World War II—And Beyond

In his message to Congress of September 7, 1942, in which he

demanded that Congress forthwith repeal certain provisions of the

141 67 U.S. (2 Bl.) at 668–70.

142 See generally, E. CORWIN, TOTAL WAR AND THE CONSTITUTION (1946).

143 12 Stat. 326 (1861).

144 J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. ed. 1951).

145 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

47–48 (1946).

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Emergency Price Control Act of the previous January 30th,146 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 inescapable responsibility to the people of this country to see to it that the

war effort is no longer imperiled by threat of economic chaos.”

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

“At the same time that farm prices are stabilized, wages can

and will be stabilized also. This I will do.”

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

“I have given the most thoughtful consideration to meeting this

issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. . . .”

“The American people can be sure that I will use my powers

with a full sense of my responsibility to the Constitution and to my

country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of

our enemies in any part of the world where our own safety demands such defeat.”

“When the war is won, the powers under which I act automatically revert to the people—to whom they belong.” 147

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,

146 56 Stat. 23 (1942).

147 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, supra,

65–66.

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490 ART. II—EXECUTIVE DEPARTMENT
rather than the established departments or existing independent regulatory agencies.148

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 for the District of Columbia in Employers Group

v. National War Labor Board,

149 which was a suit to annul and enjoin a “directive order” of the War Labor Board. The Court refused

the injunction on the ground that 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.” 150 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.151

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.152

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

148 For a listing of the agencies and an account of their creation to the close of

1942, see Vanderbilt, War Powers and Their Administration, in 1942 ANNUAL SURVEY

OF AMERICAN LAW 106 (New York Univ.).

149 143 F.2d 145 (D.C. Cir. 1944).

150 143 F.2d at 149.

151 E. Corwin, supra at 244, 245, 459.

152 E.O. 9066, 7 FED. REG. 1407 (1942).

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ART. II—EXECUTIVE DEPARTMENT 491
and herded into temporary camps and later into “relocation centers” in several states.

It was apparently the original intention of the Administration

to rely on the general principle of military necessity and the power

of the Commander-in-Chief in wartime as authority for the relocations. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,153

by which it was made a misdemeanor to knowingly enter, remain

in, or leave prescribed military areas contrary to the orders of the

Secretary of War or of the commanding officer of the area. The cases

which subsequently arose in consequence of the order were decided

under the order plus the Act. The question at issue, said Chief Justice Stone for the Court, “is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but

whether, acting in cooperation, Congress and the Executive have

constitutional . . . [power] to impose the curfew restriction here complained of.” 154 This question was answered in the affirmative, as

was the similar question later raised by an exclusion order.155

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.156 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 di153 56 Stat. 173 (1942).

154 Hirabayashi v. United States, 320 U.S. 81, 91–92 (1943).

155 Korematsu v. United States, 323 U.S. 214 (1944). Long afterward, in 1984, a

federal court granted a writ of coram nobis and overturned Korematsu’s conviction,

Korematsu v. United States, 584 F. Supp. 1406 (N.D.Cal. 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. Pub. L. 100–383, 102 Stat. 903 (1988), 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.

156 E.O. 8773, 6 Fed. Reg. 2777 (1941).

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492 ART. II—EXECUTIVE DEPARTMENT
rected the President to obtain.” 157 Other seizures followed, and on

January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created

the National War Labor Board. “Whereas,” the order read in part,

“by reason of the state of war declared to exist by joint resolutions

of Congress, . . . the national interest demands that there shall be

no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration

of the war there shall be no strikes or lockouts, and that all labor

disputes shall be settled by peaceful means, and that a National

War Labor Board be established for a peaceful adjustment of such

disputes. Now, therefore, by virtue of the authority vested in me by

the Constitution and the statutes of the United States, it is hereby

ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board . . . .” 158 In this field, too,

Congress intervened by means of the War Labor Disputes Act of

June 25, 1943,159 which, however, still left ample basis for presidential activity of a legislative character.160

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.161

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, 1942.162 In Steuart & Bro.

v. Bowles,

163 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

157 E. CORWIN, TOTAL WAR AND THE CONSTITUTION 47–48 (1946).

158 7 Fed. Reg. 237 (1942).

159 57 Stat. 163 (1943).

160 See Vanderbilt, War Powers and their Administration, in 1945 ANNUAL SURVEY

OF AMERICAN LAW 254, 271–273 (N.Y. Univ.).

161 E.O. 9370, 8 Fed. Reg. 11463 (1943).

162 56 Stat. 23 (1942).

163 322 U.S. 398 (1944).

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ART. II—EXECUTIVE DEPARTMENT 493
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. Justice Douglas wrote for the Court: “[W]ithout rationing, the fuel tanks of a few would be full; the fuel tanks

of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike

who are similarly situated. . . . But middlemen—wholesalers and

retailers—bent on defying the rationing system could raise havoc

with it. . . . These middlemen are the chief if not the only conduits

between the source of limited supplies and the consumers. From

the viewpoint of a rationing system a middleman who distributes

the product in violation and disregard of the prescribed quotas is

an inefficient and wasteful conduit. . . . Certainly we could not say

that the President would lack the power under this Act to take away

from a wasteful factory and route to an efficient one a precious 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 times 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.” 164 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.165

The Postwar Period.—The end of active hostilities did not terminate either the emergency or the Federal Government’s response

to it. President Truman proclaimed the termination of hostilities on

December 31, 1946,166 and, in July 1947, Congress enacted a joint

resolution that repealed a great variety of wartime statutes and set

164 322 U.S. at 405–06.

165 E. Corwin, supra, at 249–250.

166 Proc. 2714, 12 Fed. Reg. 1 (1947).

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494 ART. II—EXECUTIVE DEPARTMENT
termination dates for others.167 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.” 168 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 169 and continued the military draft.170

With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again,171 and

by executive order the President created agencies to exercise the

power.172 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.,

173 the Court held constitutional the new rent

control law on the ground that cessation of hostilities did not end

the government’s war power, but that the power continued to remedy the evil arising out of the emergency. Yet, Justice Douglas noted

for the Court, “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.” 174 Justice Jackson, though

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 “be scrutinized with care.” 175 And, in

Ludecke v. Watkins,

176 four dissenting Justices were prepared to hold

that the presumption in the statute under review of continued war

with Germany was “a pure fiction” and not to be used.

But the postwar period 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

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

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

169 61 Stat. 193 (1947).

170 62 Stat. 604 (1948).

171 Defense Production Act of 1950, 64 Stat. 798.

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

173 333 U.S. 138 (1948).

174 333 U.S. at 143–44.

175 333 U.S. at 146–47.

176 335 U.S. 160, 175 (1948).

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ART. II—EXECUTIVE DEPARTMENT 495
treaty-making power, and other actions, bespoke the reaction.177 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.178

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, in

whole or part, under the Trading with the Enemy Act,179 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,180 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.181 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.182

The Cold War and After: Presidential Power To Use Troops

Overseas Without Congressional Authorization

Reaction after World War II did not persist, but soon ran its

course, and the necessities, real and perceived, 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

177 See A. KELLY & W. HARBISON, THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT, ch. 31 (4th ed. 1970).

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

179 § 301(1), 55 Stat. 838, 839–840 (1941).

180 91 Stat. 1626, 50 U.S.C. §§ 1701–1706.

181 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.

182 Pub. L. 94–412, 90 Stat. 1255 (1976).

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496 ART. II—EXECUTIVE DEPARTMENT
into many foreign countries, including the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, and most notably Indochina.183 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 that went on inconclusively between Congress and Executive 184 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, including his obligations 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.

185 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 that 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.186

New lists and revised arguments were published to support the

actions of President Truman in sending troops to Korea and of Presidents Kennedy and Johnson in sending troops first to Vietnam and

183 See the discussion in NATIONAL COMMITMENTS RESOLUTION, REPORT OF THE SENATE

COMMITTEE ON FOREIGN RELATIONS, S. REP. 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) at 16–19 (Professor Bartlett).

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

185 J. Clark, Memorandum by the Solicitor for the Department of State, in RIGHT

TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (1912).

186 Id. (Washington: 1929; 1934); M. OFFUTT, THE PROTECTION OF CITIZENS ABROAD BY

THE ARMED FORCES OF THE UNITED STATES (1928); J. ROGERS, WORLD POLICING AND THE CONSTITUTION (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, propoundings of the doctrine of inherent presidential powers to use troops abroad outside the narrow compass traditionally accorded those powers.

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then to Indochina generally,187 and new lists have been propounded.188 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 legislative authorization. Some instances, e.g., 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 Presi187 E.g., H. REP. 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 nonpolitically inspired doubt—of the President’s constitutional authority to do what he

did. The basis for this conclusion in legal theory and historical precedent was fully

set out in the State Department’s memorandum of July 3, 1950, extensively published. But the wisdom of the decision not to ask for congressional approval has

been doubted. . . .”

After discussing several reasons establishing the wisdom of the decision, the Secretary continued: “The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, which

he was determined to pass on unimpaired by the slightest loss of power or prestige.

This attitude would incline him strongly against any attempt to divert criticism from

himself by action that might establish a precedent in derogation of presidential power

to send our forces into battle. The memorandum that we prepared listed eightyseven 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 414, 415

(1969).

188 War Powers Legislation: Hearings Before the Senate Foreign Relations Committee, 92d Congress, 1st Sess. (1971), 347, 354–355, 359–379 (Senator Goldwater);

Emerson, War Powers Legislation, 74 W. VA. L. REV. 53 (1972). The most complete

list as of the time prepared is Collier, Instances of Use of United States Armed Forces

Abroad, 1798–1989, CONG. RES. SERV. (1989), which was cited for its numerical total

in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to

reconstruct the development and continuation of the listings, see F. WORMUTH & E.

FIRMAGE, TO CHAIN THE DOG OF WAR 142–145 (2d ed. 1989).

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

498 ART. II—EXECUTIVE DEPARTMENT
dent to deploy the military force of the United States without congressional authorization.189

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 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 the occasion for the formulation of a theory of independent

presidential power to use the armed forces in the national interest

at his discretion.190 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.” 191

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

189 Of course, considerable debate continues with respect to the meaning of the

historical record. For reflections of the narrow reading, see NATIONAL COMMITMENTS RESOLUTION, Report of the Senate Committee on Foreign Relations, S. REP. NO. 91–129,

1st Sess. (1969); J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND

ITS AFTERMATH (1993). On the broader reading and finding great presidential power,

see A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976); Emerson, Making War Without a Declaration, 17 J. LEGIS. 23 (1990).

190 For some popular defenses of presidential power during the “Great Debate,”

see Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31,

1949), 11; Commager, Presidential Power: The Issue Analyzed, NEW YORK TIMES MAGAZINE (January 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis for the

President’s Action in Using Armed Forces to Repel the Invasion of South Korea, 96

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

the Charter defense has been made much of since. See, e.g., Stromseth, Rethinking

War Powers: Congress, the President, and the United Nations, 81 GEO. L. J. 597 (1993).

191 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.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 499
President deems such action necessary to maintain the security and

defense of the United States. . . .”

“In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country

far from our shores can impinge directly on the nation’s security.

In the SEATO treaty, for example, it is formally declared that an

armed attack against Viet Nam would endanger the peace and security of the United States.”

“Under our Constitution it is the President who must decide when

an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when

the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally

empowered to take those measures.” 192

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.193 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,194 designed to redistribute the war powers between

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

Nam, 54 DEPT. STATE BULL. 474, 484–485 (1966). See also Moore, The National Executive and the Use of the Armed Forces Abroad, 21 NAVAL WAR COLLEGE REV. 28 (1969);

Wright, The Power of the Executive to Use Military Forces Abroad, 10 VA. J. INT. L.

43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander-in-Chief and the War in Indochina, Senate Committee on Foreign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under Secretary of

State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Professor Moore), 175 (Assistant Attorney General Rehnquist).

193 E.g., F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR (2d ed. 1989), F.; J.

ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (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).

194 Pub. L. 93–148, 87 Stat. 555, 50 U.S.C. §§ 1541–1548. For the congressional

intent and explanation, see H. REP. NO. 93–287, S. REP. NO. 93–220, and H. REP. NO.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

500 ART. II—EXECUTIVE DEPARTMENT
the President and Congress. Although ambiguous in some respects,

the Resolution appears to define restrictively the President’s powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional

action, and to provide a means for Congress to require cessation of

hostilities in advance of the time set.

The Resolution states that the President’s power to commit United

States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of

war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or

possessions, or its armed forces.195 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.196 If the President introduces troops

in the first of these three situations, then he must terminate the

use of troops within 60 days after his report was submitted or was

required to be submitted to Congress, 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.197 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.198 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

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).

195 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c).

196 50 U.S.C. § 1543(a).

197 50 U.S.C. § 1544(b).

198 Id. at § 1544(c). It is the general consensus that, following INS v. Chadha,

462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 501
unless it is supplemented by implementing legislation specifically

addressed to the issue.199

Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidentialcongressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it

to be an unconstitutional infringement on presidential powers, and

on each occasion of use abroad of United States troops the President in reporting to Congress has done so “consistent[ly] with” the

reporting section but not pursuant to the provision.200 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 that he had the power to act

unilaterally.201 After intensive debate, Congress 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.202

By contrast, President George W. Bush sought a resolution from

Congress in 2002 to approve the eventual invasion of Iraq before

seeking a U.N. Security Council resolution, all the while denying

that express authorization from Congress, or for that matter, the

U.N. Security Council, was necessary to renew hostilities in Iraq.

Prior to adjourning for its midterm elections, Congress passed the

Authorization for Use of Military Force against Iraq Resolution of

2002,203 which it styled as “specific statutory authorization within

the meaning of section 5(b) of the War Powers Resolution.” On sign199 50 U.S.C. § 1547(a).

200 See the text of the reports in The War Powers Resolution: Relevant Documents, Reports, Correspondence, supra at 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).

201 See Crisis in the Persian Gulf Region: U.S. Policy Options and Implications:

Hearings Before the Senate Committee on Armed Services, 101st Cong., 2d Sess. (1990),

701 (Secretary Cheney) (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 WEEKLY COMP. PRES. DOC.

25 (Jan. 8, 1991).

202 Pub. L. 102–1, 105 Stat. 3 (1991).

203 Pub. L. 107–243; 116 Stat. 1498 (2002). The House approved the resolution

by a vote of 296–133. The Senate passed the House version of H.J. Res. 114 by a

vote of 77–23.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

502 ART. II—EXECUTIVE DEPARTMENT
ing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did

not, and my signing this resolution does not, constitute any change

in the long-standing positions of the executive branch on either the

President’s constitutional authority to use force to deter, prevent,

or respond to aggression or other threats to U.S. interests or on

the constitutionality of the War Powers Resolution.” 204 In the Bush

administration’s view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity

it conveyed to the rest of the world rather than the fulfillment of

any constitutional requirements.

Although there is recurrent talk within Congress and without

as 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.205

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.206 As against an

enemy in the field, the President possesses all the powers which

are accorded by international law to any supreme commander. “He

may invade the hostile country, and subject it to the sovereignty

and authority of the United States.” 207 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.208 He may employ secret agents to

204 See President’s Statement on Signing H.J. Res. 114, Oct. 16, 2002, available

at [http://usinfo.state.gov/dhr/Archive/2003/Oct/09–906028.html].

205 See, on proposals to amend and on congressional responsibility, J. ELY, WAR

AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).

206 For a review of how several wartime Presidents have operated in this sphere,

see THE ULTIMATE DECISION: THE PRESIDENT AS COMMANDER IN CHIEF (E. May ed., 1960).

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

208 Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager,

339 U.S. 763, 789 (1950).

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 503
enter the enemy’s lines and obtain information as to its strength,

resources, and movements.209 He may, at least with the assent of

Congress, authorize commercial intercourse with the enemy.210 He

may also requisition property and compel services from American

citizens and friendly aliens who are situated within the theater of

military operations when necessity requires, thereby incurring for

the United States the obligation to render “just compensation.” 211

By the same warrant, he may bring hostilities to a conclusion by

arranging an armistice, stipulating conditions that may determine

to a great extent the ensuing peace.212 He may not, however, effect

a permanent acquisition of territory,213 though he may govern recently acquired territory until Congress sets up a more permanent

regime.214

The President is the ultimate tribunal for the enforcement of

the rules and regulations that Congress adopts for the government

of the forces, and that are enforced through courts-martial.215 Indeed, until 1830, courts-martial were convened solely on the President’s authority as Commander in Chief.216 Such rules and regulations are, moreover, it seems, subject in wartime to his amendment

at discretion.217 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 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.218

One important power that the President lacks is that of choosing

his subordinates, whose grades and qualifications are determined

by Congress and whose appointment is ordinarily made by and with

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

210 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9

Wall.) 32 (1869).

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

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

Atty. Gen. 250, 253 (1942).

212 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.

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

214 Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230–31 (1901).

215 Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See

also Givens v. Zerbst, 255 U.S. 11 (1921).

216 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary

view is stated by Attorney General Wirt.

217 Ex parte Quirin, 317 U.S. 1, 28–29 (1942).

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

April 24, 1863.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

504 ART. II—EXECUTIVE DEPARTMENT
the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in “the President

alone.” 219 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 courtmartial or in mitigation thereof.” 220 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.221 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 a 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 represent 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 . . . .] The President does not enlist in, and he

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

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

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

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

two War Presidents, President Wilson and President Roosevelt, both

clearly recognized the civilian nature of the President’s position as

Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:–‘It was due to no accident and no

oversight that the framers of our Constitution put the command of

our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and

the Chiefs of Staff.’ It is also to be noted that the Secretary of War,

219 See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States

v. Corson, 114 U.S. 619 (1885).

220 10 U.S.C. § 804.

221 Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257

U.S. 541 (1922).

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 505
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.

(12 Wall.) 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, 327 U.S. 304,

325 (1945).” 222

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; 223

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.224 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 225

that state declarations of martial law were conclusive and therefore not subject to judicial review.226 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,

227 although 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,228 reverting to the older doctrine, pronounced President Lincoln’s action void, 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

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

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

and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military services of the United States. New York Times, July 26,

1950, p. 27, col. 1.

223 C. FAIRMAN, THE LAW OF MARTIAL RULE 20–22 (1930); A. DICEY, INTRODUCTION TO

THE STUDY OF THE LAW OF THE CONSTITUTION 283, 290 (5th ed. 1923).

224 Id. at 539–44.

225 48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19,

32–33 (1827).

226 48 U.S. (7 How.) at 45.

227 67 U.S. (2 Bl.) 635 (1863).

228 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

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506 ART. II—EXECUTIVE DEPARTMENT
“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 theater 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.” 229 Four Justices, speaking by Chief

Justice Chase, while holding Milligan’s trial to have been void because it violated 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. The Chief Justice wrote: “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 as 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 invasion, it is within the power of Congress to determine in what states

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

and offences against the discipline or security of the army or against

the public safety.” 230 In short, only Congress can authorize the sub229 71 U.S. at 127.

230 71 U.S. at 139–40. In Ex parte Vallandigham, 68 U.S. (1 Wall.) 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.

Sec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 507
stitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

Early in the 20th century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v.

Peabody 231 that “the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . [T]he 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.” 232 The “good faith” test

of Moyer, however, was superseded by the “direct relation” test of

Sterling v. Constantin,

233 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.” 234

Martial Law in Hawaii.—The question of the constitutional

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

suspending the writ of habeas corpus and conferring on the local

commanding General of the Army all his own powers as governor

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

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

the proclamation set up continued with certain abatements until

October 24, 1944.

231 212 U.S. 78 (1909).

232 212 U.S. at 83–85.

233 287 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. at

399–400.

234 287 U.S. at 400–01. 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

(W.D. Tenn. 1939).

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508 ART. II—EXECUTIVE DEPARTMENT
By section 67 of the Organic Act of April 30, 1900,235 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

1946,236 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.” 237

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,” 238 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.” 239

Articles of War: The Nazi Saboteurs.—In 1942 eight youths,

seven Germans and one an American, all of whom had received training in sabotage in Berlin, were brought to this country 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

235 31 Stat. 141, 153 (1900).

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

237 327 U.S. at 324.

238 327 U.S. at 336.

239 327 U.S. at 343.

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ART. II—EXECUTIVE DEPARTMENT 509
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.” 240

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.241 The third contention the Court overruled by declining to draw the line between the powers of Congress

and the President in the premises,242 thereby, in effect, attributing

to the President 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 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. In any event, the Court rejected the jurisdictional challenge by one of the saboteurs on the basis of his claim to U.S. citi240 Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942).

241 317 U.S. at 41–42.

242 317 U.S. at 28–29.

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510 ART. II—EXECUTIVE DEPARTMENT
zenship, finding U.S. citizenship wholly irrelevant to the determination of whether a wartime captive is an “enemy belligerent” within

the meaning of the law of war.243

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

in General Yamashita’s case,244 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.” 245 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.246

Articles of War: Response to the Attacks of September 11,

2001.—In response to the September 11, 2001, terrorist attacks on

New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military

Force,” 247 which provided that the President may use “all necessary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed or aided the

terrorist attacks [or] harbored such organizations or persons.” During a military action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The

Executive Branch argued that it had plenary authority under Article II to hold such an “enemy combatant” for the duration of hos243 Ex parte Quirin, 317 U.S. 1, 37–38 (1942) (“Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance

and direction enter this country bent on hostile acts, are enemy belligerents within

the meaning of the Hague Convention and the law of war.”). See also Colepaugh v.

Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) (“[T]he

petitioner’s citizenship in the United States does not . . . confer upon him any constitutional rights not accorded any other belligerent under the laws of war.”).

244 In re Yamashita, 327 U.S. 1 (1946).

245 327 U.S. at 81.

246 See Gross, The Criminality of Aggressive War, 41 AM. POL. SCI. REV. 205 (1947).

247 Pub. L. 107–40, 115 Stat. 224 (2001).

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ART. II—EXECUTIVE DEPARTMENT 511
tilities, and to deny him meaningful recourse to the federal courts.

In Hamdi v. Rumsfeld, the Court agreed that the President was

authorized to detain a United States citizen seized in Afghanistan,

although a majority of the Court appeared to reject the notion that

such power was inherent in the Presidency, relying instead on statutory grounds.248 However, the Court did find that the government

may not detain the petitioner indefinitely for purposes of interrogation, and must afford him the opportunity to offer evidence that he

is not an enemy combatant.249

In Rasul v. Bush,

250 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were

outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried

overseas by United States military tribunals.251 In Rasul, the Court

noted that the Guantanamo petitioners were not citizens of a country at war with the United States,252 had not been afforded any

form of tribunal, and were being held in a territory over which the

United States exercised exclusive jurisdiction and control.253 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.254

248 542 U.S. 507 (2004). There was no opinion of the Court. Justice O’Connor,

joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided ruling on the Executive Branch argument that such detentions could be authorized by

its Article II powers alone, and relied instead on the “Authorization for Use of Military Force” passed by Congress. Justice Thomas also found that the Executive Branch

had the power to detain the petitioner, although his dissenting opinion found that

such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsberg,

rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus.

249 At a minimum, the petitioner must be given notice of the asserted factual

basis for holding him, must be given a fair chance to rebut that evidence before a

neutral decisionmaker, and must be allowed to consult an attorney. 542 U.S. at 533,

539.

250 542 U.S. 466 (2004).

251 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

252 The petitioners were Australians and Kuwaitis.

253 Rasul v. Bush, 542 U.S. at 467.

254 The Court found that 28 U.S.C. § 2241, which had previously been construed to require the presence of a petitioner in a district court’s jurisdiction, was

now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen arrested on American soil, was remanded after the Court

found that a federal court’s habeas jurisdiction under 28 U.S.C. § 2241 was limited

to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542

U.S. 426 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld not

sufficient to satisfy presence requirement under 28 U.S.C. § 2241). In Munaf v. Geren,

128 S. Ct. 2207 (2008), the Court held that the federal habeas statute, 28 U.S.C.

§ 2241, applied to American citizens held by the Multinational Force—Iraq, an interSec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

512 ART. II—EXECUTIVE DEPARTMENT
In response to Rasul, Congress amended the habeas statute to

eliminate all federal habeas jurisdiction over detainees, whether its

basis was statutory or constitutional.255 This amendment was challenged in Boumediene v. Bush,

256 as a violation of the Suspension

Clause.257 Although the historical record did not contain significant

common-law applications of the writ to foreign nationals who were

apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case.258 Emphasizing a “functional” approach to the issue,259 the Court considered (1) the citizenship and status of the detainee and the adequacy

of the process through which the status determination was made;

(2) the nature of the sites where apprehension and detention took

place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished

previous case law, noting that the instant detainees disputed their

enemy status, that their ability to dispute their status had been

limited, that they were held in a location (Guantanamo Bay, Cuba)

under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with

the government’s military mission. Thus, the Court concluded that

the Suspension Clause was in full effect regarding these detainees.

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

national coalition force operating in Iraq and composed of 26 different nations, including the United States. The Court concluded that the habeas statute extends to

American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational

coalition.

255 Detainee Treatment Act of 2005, Pub. L. 109–148, § 1005(e)(1) (providing that

“no court . . . shall have jurisdiction to hear or consider . . . an application for a

writ of habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay”). After the Court decided, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee Treatment Act did not apply to detainees whose cases were

pending at the time of enactment, the language was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where a detainee had been determined to be an enemy combatant.

256 553 U.S. 723 (2008).

257 U.S. Const. Art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the

public Safety may require it.” In Boumediene, the government argued only that the

Suspension Clause did not apply to the detainees; it did not argue that Congress

had acted to suspend habeas.

258 “[G]iven the unique status of Guantanamo Bay and the particular dangers

of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much,

one way or the other, from the lack of historical evidence on this point.” 553 U.S. at

752.

259 553 U.S. at 764. “[Q]uestions of extraterritoriality turn on objective factors

and practical concerns, not formalism.” Id.

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ART. II—EXECUTIVE DEPARTMENT 513
occasions subsequently in which federal troops or state militia called

into federal service were required.260 Since World War II, however,

the President, by virtue of his own powers and the authority vested

in him by Congress,261 has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in

the South.262 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.263 In 1962, President Kennedy

dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control with rioting that broke out upon the

admission of an African American student to the University of Mississippi.264 In June and September of 1964, President Johnson sent

troops into Alabama to enforce court decrees opening schools to

blacks.265 And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights

march. The President justified his action on the ground that there

was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers.266

PRESIDENTIAL ADVISERS

The Cabinet

The authority in Article II, § 2, cl. 1 to require the written opinion of the heads of executive departments is the meager residue

from a persistent effort in the Federal Convention to impose a coun260 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.

261 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.

262 The other instances were in domestic disturbances at the request of state

governors.

263 Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 Fed. Reg. 7628.

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

v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959), aff’d sub nom Faubus v. Aaron, 361

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

358 U.S. 829 (1958).

264 Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 Fed. Reg. 9693 (1962).

See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965).

265 Proc. 3542, 28 Fed. Reg. 5707 (1963); E.O. 11111, 28 Fed. Reg. 5709 (1963);

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

266 Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 Fed. Reg. 2743 (1965).

See Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965).

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514 ART. II—EXECUTIVE DEPARTMENT
cil on the President.267 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 with the strongest backing was that it should

consist of the heads of departments and the Chief Justice, 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.268 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,269 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.270

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

267 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 70, 97, 110 (rev.

ed. 1937); 2 id. at 285, 328, 335–37, 367, 537–42. Debate on the issue in the Convention is reviewed in C. THACH, THE CREATION OF THE PRESIDENCY 1775–1789 82, 83, 84,

85, 109, 126 (1923).

268 E. Corwin, supra at 82.

269 L. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY ch. 4 (1948).

270 E. Corwin, supra at 19, 61, 79–85, 211, 295–99, 312, 320–23, 490–93.

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ART. II—EXECUTIVE DEPARTMENT 515
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.271

In Burdick v. United States,

272 Marshall’s doctrine was put to a

test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground

that his testimony would tend to incriminate him, was proffered by

President Wilson “a full and unconditional pardon for all offenses

against the United States,” which he might have committed or participated in in connection with the matter he had been questioned

about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. “The grace of a pardon,” remarked Justice McKenna

sententiously, “may be only a pretense . . . involving consequences

of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected . . . .” 273 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.274 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.” 275 Whether

these words sound the death knell of the acceptance doctrine is perhaps doubtful.276 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

271 United States v. Wilson, 32 U.S. (7 Pet.) 150, 160–61 (1833).

272 236 U.S. 79, 86 (1915).

273 236 U.S. at 90–91.

274 Armstrong v. United States, 80 U.S. (13 Wall.) 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. at 599, citing British cases.

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

276 Cf. W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 73 (1941).

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516 ART. II—EXECUTIVE DEPARTMENT
authorized by law and does not in common understanding exceed

the original penalty.277

Scope of the Power

The pardon 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,278 the power to pardon absolutely or conditionally, and the power to commute sentences, which,

as seen above, is effective without the convict’s consent.279 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.280 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 Theodore Roosevelt—to

Aguinaldo’s followers—in 1902.281 Not until after the Civil War, however, was the point adjudicated, when it was decided in favor of

presidential prerogative.282

The President cannot pardon by anticipation, or he would be

invested with the power to dispense with the laws, King James II’s

claim to which was the principal cause of his forced abdication.283

277 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. at 264.

278 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Cent. R.R. v. Bosworth, 133 U.S.

92 (1890).

279 Ex parte William Wells , 59 U.S. (18 How.) 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, 32 U.S. (7 Pet.) 150, 161 (1833).

280 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).

281 See 1 J. Richardson, supra, at 173, 293; 2 id. at 543; 7 id. at 3414, 3508; 8

id. at 3853; 14 id. at 6690.

282 United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). See also United

States v. Padelford, 76 U.S. (9 Wall.) 531 (1870).

283 F. MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND 302–306 (W.S. Hein 2006) (1908);

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

commission of the offense. “A pardon may be exercised at any time after its commisSec. 2—Powers, Duties of the President Cl. 1—Commander-In-Chiefship

ART. II—EXECUTIVE DEPARTMENT 517
Offenses Against the United States: Contempt of Court.—

The President may pardon criminal but not civil contempts of court.

The Court “point[ed] out that it is not the fact of punishment but

rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive

in the public interest to vindicate the authority of the court and to

deter other like derelictions.” 284 In upholding the President’s power

to pardon criminal contempt, Chief Justice Taft, speaking for the

Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. He wrote: “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 in so far 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.” 285 Nor was any new or special danger to be

apprehended from this view of the pardoning power. “If,” the Chief

Justice asked, “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?” Although, he added,

“[t]he power of a court to protect itself and its usefulness by punishing contemnors is of course necessary,” in light of the fact that a

sion, either before legal proceedings are taken, or during their pendency, or after

conviction and judgment.” Ex parte Garland, 71 U.S. (4 Wall.) 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).

284 Ex parte Grossman, 267 U.S. 87, 113 (1925).

285 267 U.S. at 110–11.

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518 ART. II—EXECUTIVE DEPARTMENT
court exercises this power “without the restraining influence of a

jury and without many of the guaranties [sic] which the bill of rights

offers[,] . . . [m]ay 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?” 286

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

on this subject is Ex parte Garland,

287 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 encouragement “to persons engaged in armed hostilities” against

the United States, and so forth.288 Garland, who had “taken part

in the Rebellion against the United States, by being in the Congress of the so-called Confederate States,” and so was unable to take

the oath, had, however, received from President Johnson “a full pardon ‘for all offences by him committed, arising from participation,

direct or implied, in the Rebellion,’ ” 289 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. Justice Field wrote for a divided Court: “[T]he 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; 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.” 290

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 counselor-at-law,

286 267 U.S. at 121, 122.

287 71 U.S. (4 Wall.) 333 (1867).

288 71 U.S. (4 Wall.) at 334–35.

289 71 U.S. (4 Wall.) at 336, 375.

290 71 U.S. at 380–81.

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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.” 291 Justice Field’s language

must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York.

292 Carlesi had been convicted several

years before of committing a federal offense. In the instant case, he

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. Although this

case involved offenses against different sovereignties, the Court declared in dictum that its decision “must not be understood as in

the slightest degree intimating that a pardon would operate to limit

the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.” 293

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 “[t]he disability to testify being a consequence, according

to the principles of the common law, of the judgment of conviction,

the pardon obliterated that effect.” 294 But a pardon “does not 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

291 71 U.S. at 397.

292 233 U.S. 51 (1914).

293 233 U.S. at 59.

294 142 U.S. 450, 453–54 (1892).

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520 ART. II—EXECUTIVE DEPARTMENT
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.” 295

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 pronounced void.

Chief Justice Chase wrote 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.” 296 On the other hand, Congress itself, under the Necessary and Proper Clause, may enact amnesty

laws remitting penalties incurred under the national statutes.297

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

295 Knote v. United States, 95 U.S. 149, 153–54 (1877).

296 United States v. Klein, 80 U.S. (13 Wall.) 128, 143, 148 (1872).

297 The Laura, 114 U.S. 411 (1885).

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ART. II—EXECUTIVE DEPARTMENT 521
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 that 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.” 298 Not until September 7,

ten days before the Convention’s final adjournment, was the President made a participant in these powers.299 The constitutional clause

evidently assumes that the President and Senate will be associated

throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized

by the President without benefit of senatorial counsel.300 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 counselors 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.” 301

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.302 “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 1936.303 The

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

298 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 183 (rev. ed.

1937).

299 Id. at 538–39.

300 No. 64 (J. Cooke ed., 1961), 435–436.

301 31 ANNALS OF CONGRESS 106 (1818).

302 Washington sought to use the Senate as a council, but the effort proved futile, principally because the Senate balked. For the details see E. Corwin, supra, at

207–217.

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

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522 ART. II—EXECUTIVE DEPARTMENT
President chooses to furnish it.304 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.305 The act of

ratification for the United States is the President’s act, but it may

not be forthcoming unless the Senate has consented to it by the

required two-thirds of the Senators present, which signifies twothirds of a quorum, otherwise the consent rendered would not be

that of the Senate as organized under the Constitution to do business.306 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.307

Treaties as Law of the Land

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

Chief Justice Marshall wrote 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 infra-territorial; 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

304 E. Corwin, supra, at 428–429.

305 Treaties and Other International Agreements: The Role of the United States

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

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

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

LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 314 (hereinafter Restatement,

Foreign Relations) (1987). See Fourteen Diamond Rings v. United States, 183 U.S.

176, 183 (1901).

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

283–84 (1919).

307 For instance, see S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 53 (2d

ed. 1916); CRS Study, supra, 109–120.

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judicial department; and the legislature must execute the contract,

before it can become a rule for the court.” 308

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.” 309

The meaning of treaties, as of statutes, is determined by the

courts. “If treaties are to be given effect as federal law under our

legal system, determining their meaning as a matter of federal law

‘is emphatically the province and duty of the judicial department,’

headed by the ‘one supreme Court’ established by the Constitution.” 310 Yet, “[w]hile courts interpret treaties for themselves, the

meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great

weight.” 311 Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have “no binding force except between

308 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313–14 (1829). See THE FEDERALIST No.

75 (J. Cooke ed. 1961), 504–505.

309 112 U.S. 580, 598 (1884) (quoted with approval in Medellin v. Texas, 128 S.

Ct. 1346, 1357, 1358–59 (2008)). For treaty provisions operative as “law of the land”

(self-executing), see S. Crandall, supra, at 36–42, 49–62, 151, 153–163, 179, 238–

239, 286, 321, 338, 345–346. For treaty provisions of an “executory” character, see

id. at 162–63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at

41–68; Restatement, Foreign Relations, supra, §§ 111–115.

310 Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006), quoting Marbury v.

Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals

were arrested in the United States, and, in violation of Article 36 of the Vienna

Convention on Consular Relations, their nations’ consuls were not notified that they

had been detained by authorities in a foreign country (the U.S.). The foreign nationals were convicted in Oregon and Virginia state courts, respectively, and cited the

violations of Article 36 in challenging their convictions. The Court did not decide

whether Article 36 grants rights that may be invoked by individuals in a judicial

proceeding (four justices would have held that it did grant such rights). The reason

that the Court did not decide whether Article 36 grants rights to defendants was

that it held, by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the two cases before it were not entitled to relief on their claims. It found,

specifically, that “suppression of evidence is [not] a proper remedy for a violation of

Article 36,” and that “an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342.

311 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366

U.S. 187, 194 (1961).

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524 ART. II—EXECUTIVE DEPARTMENT
the parties and in respect of that particular case.” 312 ICJ decisions

“are therefore entitled only to the ‘respectful consideration’ due an

interpretation of an international agreement by an international

court.” 313

Even when an ICJ decision has binding force as between the

governments of two nations, it is not necessarily enforceable by the

individuals affected. If, for example, the ICJ finds that the United

States violated a particular defendant’s rights under international

law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not necessarily “constitute binding federal law enforceable in United States courts. . . .

[W]hile treaties may comprise international commitments . . . they

are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be selfexecuting and is ratified on these terms.” 314 A memorandum from

the President of the United States directing that the United States

would “discharge its international obligations” under an ICJ decision interpreting a non-self-executing treaty, “by having State courts

give effect to the decision,” is not sufficient to make the decision

binding on state courts, unless the President’s action is authorized

by Congress.315

312 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added

by the Court).

313 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523

U.S. 371, 375 (1998) (per curiam).

314 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original,

internal quotation marks omitted). As in the case of the foreign nationals in SanchezLlamas, Medellin’s nation’s consul had not been notified that he had been detained

in the United States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named in an ICJ decision that found a violation of Article 36 of the Vienna

Convention.

315 Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371.

The majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens, concurring, noted that, even though the ICJ decision “is not ‘the supreme Law

of the Land,’ U.S. Const., Art VI, cl. 2,” it constitutes an international law obligation not only on the part of the United States, but on the part of the State of Texas.

Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice

Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would

be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg,

dissented, writing that “the consent of the United States to the ICJ’s jurisdiction[ ]

bind[s] the courts no less than would ‘an act of the [federal] legislature.’ ” Id. at 1376.

The dissent believed that, to find treaties non-self-executing “can threaten the application of provisions in many existing commercial and other treaties and make it

more difficult to negotiate new ones.” Id. at 1381–82. Moreover, Justice Breyer wrote,

the Court’s decision “place[s] the fate of an international promise made by the United

States in the hands of a single State. . . . And that is precisely the situation that

the Framers sought to prevent by enacting the Supremacy Clause.” Id. at 1384. On

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Origin of the Conception.—How did this distinctive feature

of the Constitution come about, by virtue of which the treatymaking 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. 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’s promises was dependent on the state legislatures.316 Particularly with regard to provisions of the Treaty of Peace

of 1783,317 in which Congress stipulated to protect the property rights

of British creditors of American citizens and of the former Loyalists,318 the promises were not only ignored but were deliberately

flouted by many legislatures.319 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.320 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.321

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 paAugust 5, 2008, the U.S. Supreme Court denied Medellin a stay of execution, Medellin v. Texas, 129 S. Ct. 360 (2008) (Justices Stevens, Souter, Ginsburg, and Breyer

dissenting), and Texas executed him the same day.

316 S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT ch. 3 (2d ed. 1916).

317 Id. at 30–32. For the text of the Treaty, see 1 Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other

Powers (1776–1909), 586 S. DOC. NO. 357, 61st Congress, 2d Sess. (W. Malloy ed.,

1910).

318 Id. at 588.

319 R. MORRIS, JOHN JAY, THE NATION, AND THE COURT 73–84 (1967).

320 S. Crandall, supra, at 36–40.

321 The Convention at first leaned toward giving Congress a negative over state

laws which were contrary to federal statutes or treaties, 1 M. Farrand, supra, at 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. at 245, 316, 2 id. at 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. at 183, but in another clause the legislative branch was authorized to

call out the militia to, inter alia, “enforce treaties”. Id. at 182. The two words were

struck subsequently “as being superfluous” in view of the Supremacy Clause. Id. at

389–90.

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per money, which was depreciating rapidly, was to be legal currency for the payment of debts and to confound creditors who would

not accept the currency provided that Virginia citizens could pay

into the state treasury debts owed by them to subjects of Great Britain, which money was to be used to prosecute the war, and that

the auditor would give the debtor a certificate of payment which

would discharge the debtor of all future obligations to the creditor.322 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 323 the Court struck down the state

law as violating the treaty that Article VI, paragraph 2, made superior. Justice Chase wrote: “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.” 324

In Hopkirk v. Bell,

325 the Court further held that this same treaty

provision prevented the operation of a Virginia statute of limitations 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.326 An example is Hauenstein v. Lynham,

327 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.328

322 9 W. HENING, STATUTES OF VIRGINIA 377–380 (1821).

323 3 U.S. (3 Dall.) 199 (1796).

324 3 U.S. at 236–37.

325 7 U.S. (3 Cr.) 454 (1806).

326 See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483,

489–90 (1880).

327 100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 197–98 (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.

328 See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S.

433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); Kolovrat v. Oregon, 366 U.S. 187

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Certain more recent cases stem from California legislation, most

of it directed against Japanese immigrants. A statute that excluded

aliens ineligible for American citizenship from owning real estate

was upheld in 1923 on the ground that the treaty in question did

not secure the rights claimed.329 But, in Oyama v. California,

330 a

majority of the Court opined that this legislation conflicted with the

Equal Protection Clause of the Fourteenth Amendment, a view that

has since been endorsed by the California Supreme Court by a narrow majority.331 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.332

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.333 But the years since have

(1961). But a right under treaty to acquire and dispose of property does not except

aliens from the operation of a state statute prohibiting conveyances of homestead

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

State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the

citizens of each country, in the territory of the other, equality with the natives of

rights and privileges in respect to protection and security of person and property,

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

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

to native resident relatives. Maiorano v. Baltimore & Ohio R.R., 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).

329 Terrace v. Thompson, 263 U.S. 197 (1923).

330 332 U.S. 633 (1948). See also Takahashi v. Fish & Game Comm’n, 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.

331 This occurred in the much advertised case of Sei Fujii v. State, 38 Cal.2d

718, 242 P.2d 617 (1952). A lower California court had held that the legislation involved was void under the United Nations Charter, but the California Supreme Court

was unanimous in rejecting this view. The Charter provisions invoked in this connection [Arts. 1, 55 and 56], said Chief Justice Gibson, “[w]e are satisfied . . . were not

intended to supersede domestic legislation.” That is, the Charter provisions were

not self-executing. RESTATEMENT, FOREIGN RELATIONS, supra, § 701, Reporters’ Note 5,

pp. 155–56.

332 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S.

187 (1961).

333 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 392–394 (rev.

ed. 1937).

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seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the

effects of statutes, in connection with the treaty power. For purposes of this section, the question is whether entry into and ratification of a treaty is sufficient in all cases to make the treaty provisions the “law of the land” or whether there are some types of treaty

provisions that only a subsequent act of Congress can put into effect. The language quoted above 334 from Foster v. Neilson 335 early

established that not all treaties are self-executing, for, as Marshall

said in that decision, 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.” 336

Leaving aside the question of when a treaty is and is not selfexecuting,337 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,338 certain provisions of which required appropriations to carry them into effect. In view of Article I, § 9, clause

7, 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.339 A bill was introduced in the House to appropriate the needed funds, and its supporters, within and without Congress, argued that, because the treaty

was the law of the land, the legislative branch was bound to enact

the bill without further ado; opponents led by Madison and Albert

Gallatin contended that the House had complete discretion whether

or not to carry into effect treaty provisions.340 At the conclusion of

the debate, the House voted not only the money but a resolution

334 “Treaties as Law of the Land,” supra.

335 27 U.S. (2 Pet.) 253, 314 (1829).

336 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.” See S. Crandall, supra, chs. 11–15.

337 See infra, “When Is a Treaty Self-Executing.”

338 8 Stat. 116 (1794).

339 The story is told in numerous sources, including S. Crandall, supra, at 165–

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

the House, see J. Richardson, supra, at 123.

340 Debate in the House ran for more than a month. It was excerpted from the

ANNALS 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 (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 35–59 (1960). Gallatin served in the United States Senate for two

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ART. II—EXECUTIVE DEPARTMENT 529
offered by Madison stating that it did not claim any agency in the

treaty-making process, “but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the

power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the

constitutional right and duty of the House of Representatives in all

such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in

their judgment may be most conducive to the public good.” 341 This

early precedent with regard to appropriations has apparently been

uniformly adhered to.342

Similarly, with regard to treaties that modify 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.343 The earliest congressional dispute came over an 1815 Convention with Great Britain,344 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 believed that no implementing legislation was necessary

because of a statute that 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.345 But

subsequent cases have seen legislation enacted; 346 the Senate once

refused to ratify a treaty that purported to reduce statutorily determined duties,347 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 debatable. A 1907 memorandum approved by the Secretary

of State stated that the limitations on the treaty power that necessitate legislative implementation may “be found in the provisions

months in 1793–1794, the House of Representatives from 1795–1801, and as Secretary of the Treasury from 1801–1814.

341 5 ANNALS OF CONGRESS 771, 782 (1796). The House adopted a similar resolution in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871), 835.

342 S. Crandall, supra, at 171–182; 1 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF

THE UNITED STATES 549–552 (2d ed. 1929); but see RESTATEMENT, FOREIGN RELATIONS, supra, § 111, Reporters’ Note 7, p. 57. See also H. REP. 4177, 49th Congress, 2d Sess.

(1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

343 S. Crandall, supra, at 183–199.

344 8 Stat. 228.

345 3 Stat. 255 (1816). See S. Crandall, supra, at 184–188.

346 S. Crandall, supra, at 188–195; 1 W. Willoughby, supra, at 555–560.

347 S. Crandall, supra, at 189–190.

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530 ART. II—EXECUTIVE DEPARTMENT
of the Constitution which expressly confide in Congress or in other

branches of the Federal Government the exercise of certain of the

delegated powers. . . .” 348 The same thought has been expressed in

Congress 349 and by commentators.350 Resolution of the issue seems

to be for legislative and executive branches rather than for the courts.

Congressional Repeal of Treaties.—Madison contended that,

when Congress is asked to carry a treaty into effect, it has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient.351 Developments have

vindicated Madison in this regard. This is seen in the answer that

the Court gave 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 therefore the later

one will prevail. In short, the treaty commitments of the United

States do not diminish Congress’s constitutional powers. To be sure,

legislative repeal of a treaty as law of the land may amount to its

violation as an international contract. In such case, as the Court

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.” 352

348 Anderson, The Extent and Limitations of the Treaty-Making Power, 1 AM. J.

INT’L L. 636, 641 (1907).

349 At the conclusion of the 1815 debate, the Senate conferees noted in their

report that some treaties might need legislative implementation, which Congress was

bound to provide, but did not indicate what in their opinion made some treaties

self-executing and others not. 29 ANNALS OF CONGRESS 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed,

that legislative implementation was necessary to carry into effect all treaties which

contained “stipulations requiring appropriations, or which might bind the nation to

lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or

to cede territory. . . .” Id. at 1019. Much the same language was included in a later

report, H. REP. 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. denied, 436 U.S. 907 (1978).

350 T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 175 (3d ed. 1898); Q. WRIGHT,

THE CONTROL OF AMERICAN FOREIGN RELATIONS 353–356 (1922).

351 See, e.g., 5 Annals of Congress 493 (1796).

352 Head Money Cases, 112 U.S. 580, 598 (1884). The repealability of treaties by

act of Congress was first asserted in an opinion of the Attorney General in 1854. 6

Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy

and cogently argued opinion of Justice Curtis, speaking for a United States circuit

court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See

also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States v. FortyThree 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. RobSec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers

ART. II—EXECUTIVE DEPARTMENT 531
Treaties Versus Prior Acts of Congress.—The Court has enforced numerous statutory provisions that it recognized as superseding prior treaty engagements. Chief Justice Marshall asserted that

the converse would be true as well 353—that a treaty that is selfexecuting is the law of the land and prevails over an earlier inconsistent statute—and this proposition has been repeated many times

in dicta.354 But there is dispute whether in fact a treaty has ever

been held to have repealed or superseded an inconsistent statute.

Willoughby, for example, writes: “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.” 355

The one instance that may be an exception 356 is Cook v. United

States,

357 in which a divided Court held that a 1924 treaty with

Great Britain that allowed the inspection of British vessels for contraband liquor and seizure if any was found had superseded the

ertson, 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, 73 U.S. (6 Wall.) 160, 165–66 (1868), which states in dictum that “Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before by the authorized agents of the government.”

353 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (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, 32 U.S. (7 Pet.) 51 (1833).

354 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–21 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309,

320–21 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).

355 1 W. Willoughby, supra, at 555.

356 Other cases, which are cited in some sources, appear distinguishable. United

States v. Schooner Peggy, 5 U.S. (1 Cr.) 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. See also Charlton v. Kelly, 229 U.S. 447 (1913).

357 288 U.S. 102 (1933).

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532 ART. II—EXECUTIVE DEPARTMENT
authority conferred by a section of the Tariff Act of 1922 358 The

difficulty with this case is that the Tariff Act provision had been

reenacted in 1930,359 so that a simple application of the rule that

the later enactment governs 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 influenced 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, in which case they are enforceable only

after the enactment of “legislation to carry them into effect.” 360 But

what is it about a treaty that makes it the law of the land and

gives a private litigant 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 it, gave judgment for the

petitioner based on it.361 In Foster v. Neilson,

362 Chief Justice Marshall explained that a treaty is to be regarded “as equivalent to an

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

of any legislative provision.” A treaty will not be self-executing, however, “when the terms of the [treaty] stipulation import a contract—

when either of the parties engages to perform a particular act. . . .”

When this is the case, “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.” 363

Sometimes the nature of a treaty will determine whether it requires legislative execution or “conveys an intention that it be ‘selfexecuting’ and is ratified on these terms.” 364 One authority states

358 42 Stat. 858, 979, § 581.

359 46 Stat. 590, 747, § 581.

360 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888).

361 United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801).

362 27 U.S. (2 Pet.) 253 (1829).

363 27 U.S. (2 Pet.) at 314. Generally, 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, supra, at 558. Perhaps of the same nature

was a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama.

TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article

V of the Webster-Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by

the two states and payment to them of compensation. S. Crandall, supra, at 222–

224.

364 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Ingartua-De La Rosa

v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc).

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ART. II—EXECUTIVE DEPARTMENT 533
that whether a treaty is self-executing “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.” 365 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.366

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’s enumerated powers, then it is these powers that it exercises

in carrying the treaty into effect. But if the treaty deals with a subject that falls within the national jurisdiction because of its international character, then recourse is had to the Necessary and Proper

Clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but

the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.367 Congress could not confer judicial power upon American consuls abroad to be exercised over American citizens abroad, but the

treaty-power can and has, and Congress has passed legislation perfecting such agreements, and the Supreme Court has upheld such

legislation.368

365 Q. Wright, supra, at 207–208. See also L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 156–162 (1972).

366 Compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (1829), with Cook v.

United States, 288 U.S. 102, 118–19 (1933).

367 Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614.

368 See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are

given. The supplementary legislation, later reenacted at Rev. Stat. 4083–4091, was

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534 ART. II—EXECUTIVE DEPARTMENT
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.369 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.370

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.” 371 In a word, the treaty-power cannot purport to amend

the Constitution by adding to the list of Congress’s enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures that independently of a treaty Congress could not enact; the only question

that can be raised as to such measures is whether they are “necessary and proper” for the carrying of the treaty in question into operation.

The foremost example of this interpretation is Missouri v. Holland.

372 There, the United States and Great Britain had entered

into a treaty for the protection of migratory birds,373 and Congress

had enacted legislation pursuant to the treaty to effectuate it.374

Missouri objected that such regulation was reserved to the states

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).

369 18 U.S.C. §§ 3181–3195.

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

371 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, 41 U.S. (16 Pet.)

539 (1842): “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. at 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. at 618–19. However, the treaty-making power is neither a right nor a

duty, but one of the powers “vested by this Constitution in the Government of the

United States.” Art. I, § 8, cl. 18.

372 252 U.S. 416 (1920).

373 39 Stat. 1702 (1916).

374 40 Stat. 755 (1918).

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ART. II—EXECUTIVE DEPARTMENT 535
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.375 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.” 376 “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.” 377 Because the treaty and thus the statute dealt with a matter of national and international concern, the

treaty was proper and the statute was “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.” 378 As statutes may be held void because they

contravene the Constitution, it should follow that treaties may be

held void, the Constitution being superior to both. And indeed the

Court has numerous times so stated.379 It does not appear that the

Court has ever held a treaty unconstitutional,380 although there are

cases in which the decision seemed to be compelled by constitu375 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’s 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).

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

377 252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188

U.S. 14, 33 (1903).

378 Whitney v. Robertson, 124 U.S. 190, 194 (1888).

379 “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, 57 U.S. (16 How.) 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, 78 U.S.

(11 Wall.), 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).

380 1 W. Willoughby, supra, at 561; L. Henkin, supra, at 137. In Power Authority of New York v. FPC, 247 F.2d 538 (2d Cir. 1957), a reservation attached by the

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tional considerations.381 In fact, there would be little argument with

regard to the general point were it not for dicta in Justice Holmes’

opinion in Missouri v. Holland.

382 “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 . . . ,” 383

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.384

Controversy over Holmes’ language apparently led Justice Black

in Reid v. Covert 385 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

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).

381 Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca

v. Thompson, 223 U.S. 317 (1912).

382 252 U.S. 416 (1920).

383 252 U.S. at 433. Subsequently, he also observed: “The treaty in question does

not contravene any prohibitory words to be found in the Constitution.” Id.

384 The attempt, the so-called “Bricker Amendment,” was aimed at the expansion into reserved state powers through treaties as well as 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).

385 354 U.S. 1 (1957) (plurality opinion).

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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.” 386

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.387 Nevertheless, the issue, in the context of Congress’s power under the Necessary and Proper Clause to effectuate

a treaty dealing with a subject arguably within the domain of the

states, was presented as recently as 1920, when the Court upheld

a treaty and implementing statute providing for the protection of

migratory birds.388 “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.” 389 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

386 354 U.S. at 16–17. For discussions of the issue, see Restatement, Foreign

Relations, § 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, supra, at 137–156.

387 Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cr.) 603 (1813); Chirac v. Chirac, 15 U.S. (2 Wheat.) 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, supra, at 92 n.97.

The nearest the Court ever came to supporting this argument appears to be Frederickson

v. Louisiana, 64 U.S. (23 How.) 445, 448 (1860).

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

389 252 U.S. at 433–34.

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538 ART. II—EXECUTIVE DEPARTMENT
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.” 390

The doctrine that seems to follow 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.” 391 It is not, in other

words, the treaty power that enlarges either the federal power or

the congressional power, but the international character of the interest concerned that 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 392 and especially by the delegated powers of Congress, although it is not clear what the limitation means. If it is meant that no international agreement could be

constitutionally entered into by the United States within the sphere

of such powers, the practice from the beginning has been to the contrary; 393 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, and the Bill of Rights

in particular, limit the exercise of the treaty power. No doubt this

is true, though again there are no cases which so hold.394

One other limitation of sorts may be contained in the language

of certain court decisions that seem to say that only matters of “in390 252 U.S. at 435.

391 1 W. Willoughby, supra, at 569. See also L. Henkin, supra, at 143–148; Restatement, Foreign Relations, § 302, Comment d, & Reporters’ Note 3, pp. 154–157.

392 E.g., Geofroy v. Riggs, 133 U.S. 258, 266–267 (1890); Holden v. Joy, 84 U.S.

(17 Wall.) 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, supra, at 299.

393 Q. Wright, supra, at 101–103. See also, L. Henkin, supra, at 148–151.

394 Cf. Reid v. Covert, 354 U.S. 1 (1957). See also Geofroy v. Riggs, 133 U.S.

258, 267 (1890).

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ART. II—EXECUTIVE DEPARTMENT 539
ternational concern” may be the subject of treaty negotiations.395

Although 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.396 At best, any attempted resolution of the issue of limitations must be an uneasy one.397

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 398

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

395 “[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, 84 U.S. (17 Wall.) 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).

396 Cf. L. Henkin, supra, at 151–56.

397 Other reservations have been expressed. One contention has been that the

territory of a state may 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,

supra, at 220–229; 1 W. Willoughby, supra, at 572–576.

A further contention is that, although foreign territory may be annexed to the

United States by the treaty power, it may 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, supra, at 117–118; H. REP. NO. 1569, 68th Congress, 2d Sess. (1925).

398 Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936);

Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–576 (1840).

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540 ART. II—EXECUTIVE DEPARTMENT
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.399 This act was followed two days later

by one authorizing limited hostilities against the same country; in

Bas v. Tingy,

400 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? 401 Reasonable arguments may be made locating the power in the President alone, in

the President and Senate, or in the Congress. Presidents generally

have asserted the foreign relations power reposed in them under

Article II and the inherent powers argument made in CurtissWright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is

also required for terminating it. Finally, because treaties are, like

statutes, the supreme law of the land, it may well be argued that,

again like statutes, they may be undone only through law-making

by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.

399 1 Stat. 578 (1798).

400 4 U.S. (4 Dall.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340

(1886), with respect to claims arising out of this situation.

401 The matter was most extensively canvassed in the debate with respect to

President Carter’s termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination:

Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess.

(1979). On the issue generally, see Restatement, Foreign Relations, § 339; CRS Study,

supra, 158–167; L. Henkin, supra, at 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).

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ART. II—EXECUTIVE DEPARTMENT 541
Definitive resolution of this argument appears only remotely possible. Historical practice provides support for all three arguments

and the judicial branch seems unlikely to essay any answer.

Although 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 1846,402

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.403 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.404 By the La FolletteFuruseth Seaman’s Act,405 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.406 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.” 407 The same

402 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).

403 S. Crandall, supra, at 458–459.

404 Id. at 459–62; Q. Wright, supra, at 258.

405 38 Stat. 1164 (1915).

406 S. Crandall, supra, at 460. See Van der Weyde v. Ocean Transp. Co., 297

U.S. 114 (1936).

407 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

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542 ART. II—EXECUTIVE DEPARTMENT
attitude toward section 34 was continued by Presidents Harding and

Coolidge.408

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.409 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.410

Examples of treaty terminations in which the President acted

alone are much disputed with respect both to facts and to the underlying legal circumstances.411 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.412 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.413

Other such renunciations by the President acting on his own have

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, supra, at

4466, 4470–4471. For the views of President Taft on the matter, see W. TAFT, THE

PRESIDENCY, ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES AND ITS LIMITATIONS 112–113 (1916).

408 Since this time, very few instances appear in which Congress has requested

or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat.

72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be § 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 December 13, 1946. Pub. L.

99–440, 100 Stat. 3515 (1986), 22 U.S.C. § 5063.

409 5 J. Richardson, supra, at 279, 334.

410 S. REP. 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, supra at 161–62.

411 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, supra at 164–66.

412 13 Stat. 568 (1865).

413 The treaty, see 11 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF

THE UNITED STATES OF AMERICA 894 (1970), was probably at odds with the Tariff Act of

1897. 30 Stat. 151.

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ART. II—EXECUTIVE DEPARTMENT 543
been similarly explained and similarly the explanations have been

controverted. Although 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 a President’s acting alone,

many of these are ambiguous and may be explained away by, for

example, conflicts with later statutes, changed circumstances, or the

like.414

No such ambiguity accompanied President Carter’s action on the

Taiwan treaty,415 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.416

However, several Members of Congress went to court to contest the

termination, apparently the first time a judicial resolution of the

question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a

common ground, vacated that decision and instructed the trial court

to dismiss the suit.417 Although no Court opinion 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.418

Determination Whether a Treaty Has Lapsed.—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 opin414 Compare the views expressed in the Hansell and Goldwater memoranda, supra. 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).

415 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).

416 Originally, S. Res. 15 had disapproved presidential action alone, but it was

amended and reported by the Foreign Relations Committee to recognize at least 14

bases of presidential termination. S. REP. 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).

417 Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (en banc), vacated and

remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because

of the political question doctrine, id. at 1002, but one other Justice in the majority

and one in dissent rejected this analysis. Id. at 998 (Justice Powell), 1006 (Justice

Brennan). The remaining three Justices were silent on the doctrine.

418 Cf. Baker v. Carr, 369 U.S. 186, 211–13, 217 (1962).

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544 ART. II—EXECUTIVE DEPARTMENT
ion in Charlton v. Kelly 419 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.” 420

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.421

Status of a Treaty a Political Question.—It is clear that many

questions which arise concerning a treaty are of a political nature

and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:

422 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. They 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

419 229 U.S. 447 (1913).

420 229 U.S. at 473–76.

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

422 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).

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ART. II—EXECUTIVE DEPARTMENT 545
system of government.” Chief Justice Marshall’s language in Foster

v. Neilson 423 is to the same effect.

Indian Treaties

In the early cases of Cherokee Nation v. Georgia,

424 and Worcester v. Georgia,

425 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 that 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.” 426

Later cases established that the power to make treaties with

the Indian tribes was coextensive with the power to make treaties

with foreign nations,427 that the states were incompetent to interfere with rights created by such treaties,428 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,429 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,430 and that an act of Congress contrary to

a prior Indian treaty repealed it.431

423 27 U.S. (2 Pet.) 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, supra at 208–16; Restatement, Foreign Relations, § 326.

424 30 U.S. (5 Pet.) 1 (1831).

425 31 U.S. (6 Pet.) 515 (1832).

426 31 U.S. at 558.

427 Holden v. Joy, 84 U.S. (17 Wall.) 211, 242 (1872); United States v. FortyThree Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S.

340, 355–56 (1908).

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

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

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

431 The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871). See also Ward v. Race

Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898).

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Present Status of Indian Treaties.—Today, the subject of Indian treaties is a closed account in the constitutional law ledger.

By a rider inserted in the Indian Appropriation Act of March 3, 1871,

it was provided “That hereafter no Indian nation or tribe within

the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United

States may contract by treaty: Provided, further, that nothing herein

contained shall be construed to invalidate or impair the obligation

of any treaty heretofore lawfully made and ratified with any such

Indian nation or tribe.” 432 Subsequently, the power of Congress to

withdraw or modify tribal rights previously granted by treaty has

been invariably upheld.433 Statutes modifying rights of members in

tribal lands,434 granting a right of way for a railroad through lands

ceded by treaty to an Indian tribe,435 or extending the application

of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,436 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 to

the same extent and in the same way as the private rights of other

residents or citizens of the United States. Hence, the Court 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

that were to be nontaxable for a specified period, acquired vested

rights of exemption from state taxation that were protected by the

Fifth Amendment against abrogation by Congress.437

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.

432 16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71.

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

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

435 Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890).

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

437 Choate v. Trapp, 224 U.S. 665, 677–78 (1912); Jones v. Meehan, 175 U.S. 1

(1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for

escheat to tribe of fractionated interests in land representing less than 2% of a tract’s

total acreage violates Fifth Amendment’s taking clause by completely abrogating rights

of intestacy and devise).

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ART. II—EXECUTIVE DEPARTMENT 547
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.438

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 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. Between 1939 and 1993, executive agreements comprised more than 90% of the international agreements

concluded.439

One must, of course, interpret the raw figures carefully. Only a

very small minority of all the executive agreements entered into

were based solely on the powers of the President as Commander in

Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate.440 Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation

438 Compare Article II, § 2, cl. 2, and Article VI, cl. 2, with Article I, 10, cls. 1

and 3. Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–72 (1840). And note the

discussion in Weinberger v. Rossi, 456 U.S. 25, 28–32 (1982).

439 CRS Study, xxxiv-xxxv, supra, 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.

440 One authority concluded that of the executive agreements entered into between 1938 and 1957, only 5.9 percent were based exclusively on the President’s

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548 ART. II—EXECUTIVE DEPARTMENT
among the kinds of agreements which are classed under this single

heading.441

Executive Agreements by Authorization of Congress

Congress early authorized officers of the executive branch to enter into negotiations and to conclude agreements with foreign governments, authorizing the borrowing of money from foreign countries 442 and appropriating money to pay off the government of Algiers

to prevent pirate attacks on United States shipping.443 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.” 444 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and

Hawaii and the acquisition of Samoa.445 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.446

Reciprocal Trade Agreements.—The most copious source of

executive agreements has been legislation which provided authority for entering into reciprocal trade agreements with other nations.447 Such agreements in the form of treaties providing for the

reciprocal reduction of duties subject to implementation by Congress were frequently entered into,448 but beginning with the Tariff

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, Senate Committee on Foreign Relations, 95th Cong.,

1st Sess. (Comm. Print) (1977), 22 (prepared by CRS).

441 “[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, supra at 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 CongressionalExecutive or Presidential Agreements: Interchangeable Instruments of National Policy

(Pts. I & II), 54 YALE L. J. 181, 534 (1945).

442 1 Stat. 138 (1790). See E. Byrd, supra at 53 n.146.

443 W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 41 (1941).

444 Id. at 38–40. The statute was 1 Stat. 232, 239, 26 (1792).

445 McClure at 62–70.

446 Id. at 78–81; S. Crandall, supra at 127–31; see CRS Study, supra at 52–55.

447 Id. at 121–27; W. McClure, supra at 83–92, 173–89.

448 Id. at 8, 59–60.

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ART. II—EXECUTIVE DEPARTMENT 549
Act of 1890,449 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.450 Then, in the Reciprocal Trade Agreements Act of 1934,451

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.452

The Constitutionality of Trade Agreements.—In Field v.

Clark,

453 legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it

attempted an unconstitutional delegation “of both legislative and treatymaking 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.” 454

Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States,

455 decided twenty

years later, a collateral question was passed upon. This was whether

an act of Congress that 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 the Tariff

Act of 1897. The Court answered: “While it may be true that this

commercial agreement, made under authority of the Tariff Act of

449 § 3, 26 Stat. 567, 612.

450 Tariff Act of 1897, § 3, 30 Stat. 15, 203; Tariff Act of 1909, 36 Stat. 11, 82.

451 48 Stat. 943, § 350(a), 19 U.S.C. §§ 1351–1354.

452 See 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.

453 143 U.S. 649 (1892).

454 143 U.S. at 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’s failure to set aside the asserted power. Also see

Weinberger v. Rossi, 456 U.S. 25, 29–30 n.6 (1982).

455 224 U.S. 583 (1912).

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550 ART. II—EXECUTIVE DEPARTMENT
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.” 456

The Lend-Lease Act.—The most extensive delegation of authority ever made by Congress to the President to enter into executive

agreements occurred within the field of the cognate powers of the

two departments, the field of foreign relations, and took place at a

time when war appeared to be in the offing and was in fact only a

few months away. The legislation referred to is the Lend-Lease Act

of March 11, 1941,457 by which the President was empowered for

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 under which the government furnished its allies in World

War II with 40 billion 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 458 and participating in international conventions.459

456 224 U.S. at 601.

457 55 Stat. 31.

458 E.g., 48 Stat. 1182 (1934), authorizing the President to accept membership

for the United States in the International Labor Organization.

459 See E. Corwin, supra at 216.

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ART. II—EXECUTIVE DEPARTMENT 551
Executive Agreements Authorized by Treaties

Arbitration Agreements.—In 1904 and 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.” 460 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 compromise under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,” 461 a statement supported by both Willoughby and Moore.462

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. They 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.” 463 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 appro460 W. McClure, supra at 13–14.

461 Id. at 14.

462 1 W. Willoughby, supra at 543.

463 A Decade of American Foreign Policy, S. Doc. No. 123, 81st Cong., 1st Sess.,

126 (1950).

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552 ART. II—EXECUTIVE DEPARTMENT
priate 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.” 464

Status of Forces Agreements.—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, 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.465 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.466

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

464 Id. at 158.

465 Wilson v. Girard, 354 U.S. 524 (1957).

466 Reid v. Covert, 354 U.S. 1, 16–17 (1957) (plurality opinion); id. at 66 (Justice

Harlan concurring).

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ART. II—EXECUTIVE DEPARTMENT 553
mere private rights of sovereignty.” 467 Crandall lists scores of such

agreements entered into with other governments by the authorization of the President.468 Such agreements were ordinarily directed

to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there

are such time-honored diplomatic devices as the “protocol” which

marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one.

Executive agreements become of constitutional significance when they

constitute a determinative factor of future foreign policy and hence

of the country’s destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both before and after the war,

Presidents have entered into agreements with other governments

some of which have approximated temporary alliances. It cannot

be justly said, however, that in so doing they have acted without

considerable support from precedent.

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 defined the limits 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 was 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.469 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.470 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.” 471 Jus467 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1397 (1833).

468 S. Crandall, supra, ch. 8; see also W. McClure, supra, chs. 1, 2.

469 Id. at 49–50.

470 Id. at 81–82.

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

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554 ART. II—EXECUTIVE DEPARTMENT
tice Gray and three other Justices believed that such action by the

President must rest upon express treaty or statute.472

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.” 473 Hostilities with Spain were brought to an end

in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace,474 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.475 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.” 476

It was also during this period 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;

472 Id. at 467. The first of these conventions, signed July 29, 1882, had asserted

its constitutionality in very positive terms. Q. Wright, supra at 239 (quoting Watts

v. United States, 1 Wash. Terr. 288, 294 (1870)).

473 Id. at 245.

474 S. Crandall, supra at 103–04.

475 Id. at 104.

476 1 W. Willoughby, supra at 539.

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ART. II—EXECUTIVE DEPARTMENT 555
and all responded favorably.477 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.478 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.479 Meantime, in 1907, by

a “Gentleman’s Agreement,” the Mikado’s government had agreed

to curb the emigration of Japanese subjects to the United States,

thereby relieving the Washington government from the necessity of

taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson’s diplomacy. This was the Lansing-Ishii Agreement, embodied

in an exchange of letters dated November 2, 1917, by which the

United States recognized Japan’s “special interests” in China, and

Japan assented to the principle of the Open Door in that country.480

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.481

The Hull-Lothian Agreement.—With the fall of France in June,

1940, President Roosevelt entered 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 semibelligerency. 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

477 W. McClure, supra at 98.

478 Id. at 96–97.

479 Id. at 98–99.

480 Id. at 99–100.

481 Id. at 140–44.

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556 ART. II—EXECUTIVE DEPARTMENT
Western Hemisphere.” 482 Second, and more important than the first,

was the Hull-Lothian Agreement of September 2, 1940, under which,

in return for the lease for ninety-nine years of certain sites for naval bases in the British West Atlantic, the United States handed

over to the British Government fifty over-age destroyers which had

been reconditioned and recommissioned.483 And on April 9, 1941,

the State Department, in consideration of the just-completed German occupation of Denmark, entered into an executive agreement

with the Danish minister in Washington, whereby the United States

acquired the right to occupy Greenland for purposes of defense.484

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.485 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—re-established 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.486 Congressional

disquietude 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.487

The Domestic Obligation of Executive Agreements

When the President enters into an executive agreement, what

sort of obligation does it impose on the United States? That it may

impose international obligations of potentially serious conse482 Id. at 391.

483 Id. at 391–93. 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).

484 4 Dept. State Bull. 443 (1941).

485 See A Decade of American Foreign Policy, Basic Documents 1941–1949, S.

Doc. No. 123, 81st Congress, 1st Sess. (1950), pt. 1.

486 For a congressional attempt to evaluate the extent of such commitments, see

United States Security Agreements and Commitments Abroad: Hearings Before a Subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st Sess. (1969),

10 pts.; see also U.S. Commitments to Foreign Powers: Hearings on S. Res. 151 Before the Senate Foreign Relations Committee, 90th Congress, 1st Sess. (1967).

487 The “National Commitments Resolution,” S. Res. 85, 91st Congress, 1st Sess.,

passed by the Senate June 25, 1969. See also S. REP. NO. 797, 90th Congress, 1st

sess. (1967). See the discussion of these years in CRS study, supra at 169–202.

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ART. II—EXECUTIVE DEPARTMENT 557
quences is obvious and that such obligations may linger for long

periods of time is equally obvious.488 Not so obvious is the nature

of the domestic obligations imposed by executive agreements. Do

treaties and executive agreements have the same domestic effect? 489 Treaties preempt state law through operation of the Supremacy Clause. Although it may be that executive agreements entered into pursuant to congressional authorization or treaty obligation

also derive preemptive force from the Supremacy Clause, that textual basis for preemption is arguably lacking for executive agreements resting solely on the President’s constitutional powers.

Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become

the “law of the land” pursuant to the Supremacy Clause because

such agreements are not “treaties” ratified by the Senate.490 The

Supreme Court, however, found another basis for holding state laws

to be preempted by executive agreements, ultimately relying on the

Constitution’s vesting of foreign relations power in the national government.

A different view seemed to underlie the Supreme Court decision in United States v. Belmont,

491 giving domestic effect to the

Litvinov Assignment. The Court’s opinion by Justice Sutherland built

on his Curtiss-Wright 492 opinion. A lower court had erred, the Court

ruled, 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 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; while the supremacy of treaties is established by the

488 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, supra at 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, supra at 97, 100.

489 See E. Byrd, supra at 151–57.

490 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir.

1919); 1 W. Willoughby, supra at 589. The State Department held the same view. G.

HACKWORTH, 5 DIGEST OF INTERNATIONAL LAW 426 (1944).

491 301 U.S. 324 (1937). In B. Altman & Co. v. United States, 224 U.S. 583 (1912),

the Court had recognized that a jurisdictional statute’s reference to a “treaty” encompassed an executive agreement.

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

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558 ART. II—EXECUTIVE DEPARTMENT
Constitution in express terms, 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.” 493

The Court elaborated on these principles five years later in United

States v. Pink,

494 another case involving the Litvinov Assignment

and recognition of the Soviet Government. The question presented

was whether the United States was entitled to recover the assets

of the New York branch of a Russian insurance company. The company argued that the Soviet Government’s decrees of confiscation

did not apply to its property in New York and could not apply 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.’

493 301 U.S. at 330–31.

494 315 U.S. 203 (1942).

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ART. II—EXECUTIVE DEPARTMENT 559
. . . It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government

has diligently endeavored to establish. . . .”

“No State can rewrite our foreign policy to conform to its own

domestic policies. Power over external affairs is not shared by the

States; it is vested in the national government exclusively. It need

not be so exercised as to conform to state laws or state policies,

whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.” 495

This recognition of the preemptive reach of executive agreements was an element in the movement for a constitutional amendment in the 1950s to limit the President’s powers in this field, but

that movement failed.496

Belmont and Pink were reinforced in American Ins. Ass’n v.

Garamendi.

497 In holding that California’s Holocaust Victim Insurance Relief Act was preempted as interfering with the Federal Government’s conduct of foreign relations, as expressed in executive agreements, the Court reiterated that “valid executive agreements are

fit to preempt state law, just as treaties are.” 498 The preemptive

reach of executive agreements stems from “the Constitution’s allocation of the foreign relations power to the National Government.” 499 Because there was a “clear conflict” between the California law and policies adopted through the valid exercise of federal

executive authority (settlement of Holocaust-era insurance claims

being “well within the Executive’s responsibility for foreign affairs”), the state law was preempted.500

495 315 U.S. at 229–31, 233–34.

496 There were numerous variations in language for the Bricker Amendment,

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.”

497 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453

U.S. 654 (1981), was rich in learning on many topics involving executive agreements, but the preemptive force of agreements resting solely on presidential power

was not at issue, the Court concluding that Congress had either authorized various

presidential actions or had long acquiesced in others.

498 539 U.S. at 416.

499 539 U.S. at 413.

500 539 U.S. at 420.

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560 ART. II—EXECUTIVE DEPARTMENT
State Laws Affecting Foreign Relations—Dormant Federal

Power and Preemption

If the foreign relations power is truly an exclusive federal power,

with no role for the states, a logical consequence, the Supreme Court

has held, is that some state laws impinging on foreign relations are

invalid even in the absence of a relevant federal policy. There is, in

effect, a “dormant” foreign relations power. The scope of this power

remains undefined, however, and its constitutional basis is debated

by scholars.

The exclusive nature of the federal foreign relations power has

long been asserted by the Supreme Court. In 1840, for example,

the Court declared that “it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one

people, and one nation; and to cut off all communications between

foreign governments, and the several state authorities.” 501 A hundred years later the Court remained emphatic about federal exclusivity. “No State can rewrite our foreign policy to conform to its own

domestic policies. Power over external affairs is not shared by the

States; it is vested in the national government exclusively. It need

not be so exercised as to conform to state laws or state policies,

whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.” 502

It was not until 1968, however, that the Court applied the general principle to invalidate a state law for impinging on the nation’s foreign policy interests in the absence of an established federal policy. In Zschernig v. Miller 503 the Court invalidated an Oregon

escheat law that operated to prevent inheritance by citizens of Communist countries. The law conditioned inheritance by nonresident

aliens on a showing that U.S. citizens would be allowed to inherit

estates in the alien’s country, and that the alien heir would be allowed to receive payments from the Oregon estate “without confis501 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840). See also United

States v. Belmont, 301 U.S. 324, 331 (1937) (“The external powers of the United

States are to be exercised without regard to state laws or policies. . . . [I]n respect

of our foreign relations generally, state lines disappear”); The Chinese Exclusion Case,

130 U.S. 581, 606 (1889) (“For local interests the several States of the Union exist;

but for national purposes, embracing our relations with foreign nations, we are but

one people, one nation, one power”); Hines v. Davidowitz, 312 U.S. 52, 63 (1941)

(“Our system of government . . . requires that federal power in the field affecting

foreign relations be left entirely free from local interference”).

502 United States v. Pink, 315 U.S. 203, 233–34 (1942). Chief Justice Stone and

Justice Roberts dissented.

503 389 U.S. 429 (1968).

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ART. II—EXECUTIVE DEPARTMENT 561
cation.” 504 Although a Justice Department amicus brief asserted that

application of the Oregon law in this one case would not cause any

“undu[e] interfer[ence] with the United States’ conduct of foreign

relations,” the Court saw a “persistent and subtle” effect on international relations stemming from the “notorious” practice of state

probate courts in denying payments to persons from Communist countries.505 Regulation of descent and distribution of estates is an area

traditionally regulated by states, but such “state regulations must

give way if they impair the effective exercise of the Nation’s foreign

policy.” If there are to be travel, probate, or other restraints on citizens of Communist countries, the Court concluded, such restraints

“must be provided by the Federal Government.” 506

Zschernig lay dormant for some time, and, although it has been

addressed recently by the Court, it remains the only holding in which

the Court has applied a dormant foreign relations power to strike

down state law. There was renewed academic interest in Zschernig

in the 1990s, as some state and local governments sought ways to

express dissatisfaction with human rights policies of foreign governments or to curtail trade with out-of-favor countries.507 In 1999, the

Court struck down Massachusetts’ Burma sanctions law on the basis of statutory preemption, and declined to address the appeals court’s

alternative holding applying Zschernig.

508 Similarly, in 2003, the Court

held that California’s Holocaust Victim Insurance Relief Act was preempted as interfering with federal foreign policy reflected in executive agreements, and, although the Court discussed Zschernig at some

length, it saw no need to resolve issues relating to its scope.509

Dictum in Garamendi recognizes some of the questions that can

be raised about Zschernig. The Zschernig Court did not identify what

language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made that

the Constitution does not require a general foreign affairs preemp504 In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation.

505 389 U.S. at 440.

506 389 U.S. at 440, 441.

507 See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The

Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 341

(1999); Carlos Manuel Vazquez, Whither Zschernig?, 46 VILL. L. REV. 1259 (2001);

Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV.

1617 (1997); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223

(1999). See also LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 149–69 (2d ed.

1996).

508 Crosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000). For

the appeals court’s application of Zschernig, see National Foreign Trade Council v.

Natsios, 181 F.3d 38, 49–61 (1st Cir. 1999).

509 American Ins. Ass’n v. Garamendi, 539 U.S. at 419 & n.11 (2003).

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tion not tied to the Supremacy Clause, and broader than and independent of the Constitution’s specific prohibitions 510 and grants of

power.511 The Garamendi Court raised “a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschernig opinions.” Instead, Justice Souter

suggested for the Court, field preemption may be appropriate if a

state legislates “simply to take a position on a matter of foreign

policy with no serious claim to be addressing a traditional state responsibility,” and conflict preemption may be appropriate if a state

legislates within an area of traditional responsibility, “but in a way

that affects foreign relations.” 512 We must await further litigation

to see whether the Court employs this distinction.513

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.” 514

Ambassadors and Other Public Ministers.—The term “ambassadors and other public ministers,” comprehends “all officers having diplomatic functions, whatever their title or designation.” 515 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 desir510 It is contended, for example, that Article I, § 10‘s specific prohibitions against

states engaging in war, making treaties, keeping troops in peacetime, and issuing

letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been

no need to declare treaties to be the supreme law of the land if a more generalized

foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey,

supra.

511 Arguably, part of the “executive power” vested in the President by Art. II,

§ 1 is a power to conduct foreign relations.

512 539 U.S. at 419 n.11.

513 Justice Ginsburg’s dissent in Garamendi, joined by the other three Justices,

suggested limiting Zschernig in a manner generally consistent with Justice Souter’s

distinction. Zschernig preemption, Justice Ginsburg asserted, “resonates most audibly when a state action ‘reflects a state policy critical of foreign governments and

involve[s] sitting in judgment on them.’ ” 539 U.S. at 439 (quoting Henkin, supra, at

164). But Justice Ginsburg also voiced more general misgivings about judges’ becoming “the expositors of the Nation’s foreign policy.” Id. at 442. In this context, see

Goldsmith, supra, at 1631, describing Zschernig preemption as “a form of the federal common law of foreign relations.”

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

515 7 Ops. Atty. Gen. 168 (1855).

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ART. II—EXECUTIVE DEPARTMENT 563
able.516 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 States have relations with

all other independent powers; and the management of those relations is vested in the Executive.” 517

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 an516 It was so assumed by Senator William Maclay. THE JOURNAL OF WILLIAM MACLAY

109–10 (E. Maclay ed., 1890).

517 26 ANNALS OF CONGRESS 694–722 (1814) (quotation appearing at 699); 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 350–353 (1865).

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564 ART. II—EXECUTIVE DEPARTMENT
nual 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. . . .” 518 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.” 519

This line of reasoning is only partially descriptive of the facts.

The Foreign Service Act of 1946,520 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

of diplomatic appointments, he has made good through his early

conceded right to employ, in the discharge of his diplomatic function, so-called “special,” “personal,” or “secret” agents without consulting the Senate. When President Jackson’s right to resort to this

practice was challenged in the Senate in 1831, it was defended by

Edward Livingston, Senator from Louisiana, to such good purpose

that Jackson made him Secretary of State. “The practice of appointing secret agents,” said Livingston, “is coeval with our existence as

a nation, and goes beyond our acknowledgment 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

518 10 Stat. 619, 623.

519 7 Ops. Atty. Gen. 186, 220 (1855).

520 60 Stat. 999, superseded by the Foreign Service Act of 1980, Pub. L. 96–465,

94 Stat. 2071, 22 U.S.C. §§ 3901 et seq.

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ART. II—EXECUTIVE DEPARTMENT 565
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.” 521

The precedent afforded by Humphreys’ appointment without reference to the Senate has since been multiplied many times,522 as

witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of

Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in

1852, of J. H. Blount to Hawaii in 1893. The last named case is

perhaps the most extreme of all. Blount, who was appointed while

the Senate was in session but without its advice and consent, was

given “paramount authority” over the American resident minister

at Hawaii and was further empowered to employ the military and

naval forces of the United States, if necessary to protect American

lives and interests. His mission raised a vigorous storm of protest

in the Senate, but the majority report of the committee which was

created to investigate the constitutional question vindicated the President in the following terms: “A question has been made as to the

right of the President of the United States to dispatch Mr. Blount

to Hawaii as his personal representative for the purpose of seeking

the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of

affairs in Hawaii. Many precedents could be quoted to show that

521 11 T. BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS 221 (1860).

522 S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104.

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566 ART. II—EXECUTIVE DEPARTMENT
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, . . . .” 523 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.” 524 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.

Appointments and Congressional Regulation of Offices

It has never been questioned that the Constitution distinguishes between the creation of an office and appointment thereto.

The former is by law and takes place by virtue of Congress’s 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.525 As an inci523 S. REP. 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.”

524 See 2 G. HOAR, AUTOBIOGRAPHY OF SEVENTY YEARS 48–51 (1903).

525 However, “Congress’s 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, 138–39 (1976) (quoted in Freytag v. Commissioner, 501 U.S. 868,

883 (1991)). The designation or appointment of military judges, who are “officers of

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ART. II—EXECUTIVE DEPARTMENT 567
dent 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.526 Indeed, it has contrived at

times to designate a definite eligibility, thereby virtually usurping

the appointing power.527 Despite the record of the past, however, it

is not at all clear that Congress may cabin the President’s discretion, at least for offices that he considers important, by, for exthe United States,” does not violate the Appointments Clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces.

These military judges, however, were already commissioned officers who had been

appointed by the President with the advice and consent of the Senate, so that their

designation simply and permissibly was an assignment to them of additional duties

that did not need a second formal appointment. Weiss v. United States, 510 U.S.

163 (1994). However, the appointment of civilian judges to the Coast Guard Court

of Military Review was impermissible and their actions were not salvageable under

the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995).

526 See Myers v. United States, 272 U.S. 52, 264–74 (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. at 128–29. For reiteration of Congress’s general

powers, see Buckley v. Valeo, 424 U.S. 1, 134–35 (1976); Morrison v. Olson, 487 U.S.

654, 673–77 (1988). See also United States v. Ferreira, 54 U.S. (13 How.) 40, 51 (1851).

527 See data in E. Corwin, supra at 363–65. 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 (Johnathan 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, 430–31 (1929). In his message of April 13, 1822, President Monroe stated that, “as a general principle, . . . Congress have [sic] 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 supra at

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,

128–29 (1926), quoted supra. And note that in Public Citizen v. U.S. Department of

Justice, 491 U.S. 440, 482–89 (1989) (concurring), Justice Kennedy suggested the

President has sole and unconfined discretion in appointing).

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568 ART. II—EXECUTIVE DEPARTMENT
ample, requiring him to choose from lists compiled by others. To be

sure, there are examples, but they are not free of ambiguity.528

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 principle 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.529 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.”

The 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? 530 “[A]ny appointee exercising significant authority pursuant to the laws of the United States

is an ‘Officer of the United States,’ and must, therefore, be ap528 The Sentencing Commission, upheld in Mistretta v. United States, 488 U.S.

361 (1989), numbered among its members three federal judges; the President was

to select them “after considering a list of six judges recommended to the President

by the Judicial Conference of the United States.” Id. at 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 Auth. v. Citizens for the

Abatement of Airport Noise, 501 U.S. 252, 268–69 (1991), the Court carefully distinguished these examples from the particular situation before it that it condemned,

but see id. at 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.

529 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. at 137.

See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of

Aircraft Noise, 501 U.S. 252 (1991).

530 Concurrently, of course, although it may seem odd, the question of what is a

“Court[] of Law” for purposes of the Appointments Clause is unsettled. See Freytag

v. Commissioner, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court

is a court of law under the clause).

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ART. II—EXECUTIVE DEPARTMENT 569
pointed in the manner prescribed by § 2, cl. 2, of [Article II].” 531

“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.” 532

In Edmond v. United States,

533 the Court reviewed its pronouncements regarding the definition of “inferior officer” and, disregarding some implications of its prior decisions, seemingly settled, unanimously, on a pragmatic characterization. Thus, the importance of

the responsibilities assigned an officer, the fact that duties were limited, that jurisdiction was narrow, and that tenure was limited, are

only factors but are not definitive.534 “Generally speaking, the term

‘inferior officer’ connotes a relationship with some higher ranking

officer or officers below the President: Whether one is an ‘inferior’

officer depends on whether he has a superior. It is not enough that

other officers may be identified who formally maintain a higher rank,

or possess responsibilities of a greater magnitude. If that were the

intention, the Constitution might have used the phrase ‘lesser officer.’ Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments,

we think it evident that ‘inferior officers’ are officers whose work is

directed and supervised at some level by others who were ap531 Freytag v. Commissioner, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo,

424 U.S. 1, 126 (1976)).

532 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. Commissioner, 501 U.S. 868, 880–882 (1991);

Morrison v. Olson, 487 U.S. 654, 670–73 (1988). See also 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, 352–53 (1931); Burnap v. United States, 252 U.S. 512, 516–17

(1920); Germaine, 99 U.S. at 511–12.

533 520 U.S. 651 (1997).

534 520 U.S. at 661–62.

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570 ART. II—EXECUTIVE DEPARTMENT
pointed by Presidential nomination with the advice and consent of

the Senate.” 535

Thus, officers who are not “inferior Officers” are principal officers who 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.536 Further, the

Framers intended to limit the “diffusion” of the appointing power

with respect to inferior officers in order to promote accountability.

“The Framers understood . . . that by limiting the appointment power,

they could ensure that those who wielded it were accountable to

political force and the will of the people. . . . The Appointments Clause

prevents Congress from distributing power too widely by limiting

the actors in whom Congress may vest the power to appoint. The

Clause reflects our Framers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presence of the administrative state, a holding that every organ in the executive Branch is a department would multiply the

number of actors eligible to appoint.” 537

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

535 520 U.S. at 662–63. The case concerned whether the Secretary of Transportation, a presidential appointee with the advice and consent of the Senate, could

appoint judges of the Coast Guard Court of Military Appeals; necessarily, the judges

had to be “inferior” officers. In related cases, the Court held that designation or appointment of military judges, who are “officers of the United States,” does not violate the Appointments Clause. The judges are selected by the Judge Advocate General of their respective branch of the Armed Forces. These military judges, however,

were already commissioned officers who had been appointed by the President with

the advice and consent of the Senate, so that their designation simply and permissibly was an assignment to them of additional duties that did not need a second formal appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review by the same

method was impermissible; they had either to be appointed by an officer who could

exercise appointment-clause authority or by the President, and their actions were

not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S.

177 (1995).

536 Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).

537 Freytag v. Commissioner, 501 U.S. 868, 884–85 (1991).

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ART. II—EXECUTIVE DEPARTMENT 571
parts of the executive establishment called departments and headed

by a cabinet officer.538 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.” 539 The use of

the word “like” in this passage suggests that it is not just Cabinetheaded departments that are departments but also entities that are

similar to them in some way, and its reservation of the validity of

investing appointing power in the heads of some unnamed 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.540 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.541 The other four Justices concluded that the Tax Court, as an independent establishment in the

executive branch, was a “department” for purposes of the Appointments Clause. In their view, in the context of text and practice, the

term meant, not Cabinet-level departments, but “all independent

executive establishments,” so that “ ‘Heads of Departments’ includes the heads of all agencies immediately below the President

in the organizational structure of the Executive Branch.” 542

The Freytag decision must be considered a tentative rather than

a settled construction.543

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

538 501 U.S. at 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. at 915–22

(Justice Scalia concurring).

539 501 U.S. at 886 (emphasis added).

540 501 U.S. at 886–88. Compare id. at 915–19 (Justice Scalia concurring).

541 501 U.S. at 888–92. This holding was vigorously controverted by the other

four Justices. Id. at 901–14 (Justice Scalia concurring).

542 501 U.S. at 918, 919 (Justice Scalia concurring).

543 As the text suggested, Freytag seemed to be a tentative decision, and Edmond

v. United States, 520 U.S. 651 (1997), a unanimous decision written by Justice Scalia,

whose concurring opinion in Freytag challenged the Court’s analysis, may easily be

read as retreating considerably from it.

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572 ART. II—EXECUTIVE DEPARTMENT
branch, as the Court first suggested? 544 No, the Court said subsequently. In Ex parte Siebold,

545 the Court sustained Congress’s decision to vest in courts the appointment of federal election supervisors, charged with preventing fraud and rights violations in

congressional elections in the South, 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.546

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, and this authority extends to

regulation of 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.” 547 The validity of this measure having been sustained,548 the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.549 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.” 550 Substantial changes in the civil service system were in544 In re Hennen, 38 U.S. (13 Pet.) 230 (1839). The suggestion was that inferior

officers are intended to be subordinate to those in whom their appointment is vested.

Id. at 257–58; United States v. Germaine, 99 U.S. 508, 509 (1879).

545 100 U.S. 371 (1880).

546 Morrison v. Olson, 487 U.S. 654, 673–77 (1988). See also Young v. United

States ex rel. Vuitton, 481 U.S. 787 (1987) (appointment of private attorneys to act

as prosecutors for judicial contempt judgments); Freytag v. Commissioner, 501 U.S.

868, 888–92 (1991) (appointment of special judges by Chief Judge of Tax Court).

547 19 Stat. 143, 169 (1876).

548 Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite’s opinion extensively reviews early congressional legislation regulative of conduct in office. Id. at

372–73.

549 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).

550 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 Developments, supra, 97 HARV. L. REV., 1630–31.

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ART. II—EXECUTIVE DEPARTMENT 573
stituted by the Civil Service Reform Act of 1978, which abolished

the Civil Service Commission and delegated its responsibilities, its

management, and its administrative duties to the Office of Personnel Management and its review and protective functions to the Merit

Systems Protection Board.551

Until 1993, § 9(a) of the Hatch Act 552 prohibited any person in

the executive branch, or any executive branch department or agency,

except the President and the Vice President and certain “policy determining” officers, to “take an active part in political management

or political campaigns,” although employees had been permitted to

“express their opinions on all political subjects and candidates.” In

United Public Workers v. Mitchell,

553 these provisions were upheld

as “reasonable” against objections based on the First, Fifth, Ninth,

and Tenth Amendments. The Hatch Act Reform Amendments of 1993,

however, substantially liberalized the rules for political activities during off-duty hours for most executive branch employees, subject to

certain limitations on off-duty hours activities and express prohibitions against on-the-job partisan political activities.554

The Loyalty Issue.—By section 9A of the Hatch Act of 1939, a

federal employee was disqualified from accepting or holding any position in the Federal Government or the District of Columbia if he

belonged to an organization that he knew advocated the overthrow

of our constitutional form of government.555 The 79th Congress followed up this provision with a rider to its appropriation acts forbidding the use of any appropriated funds to pay the salary of any

person who advocated, or belonged to an organization which advocated the overthrow of the government by force, or of any person

who engaged in a strike or who belonged to an organization which

551 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, Developments, supra, 97 HARV. L. REV.

at 1632–1650.

552 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54

Stat. 767–768, applied the same broad ban to employees of federally funded state

and local agencies, but this provision was amended in 1974 to restrict state and

local government employees in only one respect: running for public office in partisan

elections. Act of Oct. 15, 1974, Pub. L. 93–443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502.

553 330 U.S. 75 (1947). See also Civil Serv. Comm’n v. National Ass’n of Letter

Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in

large part based on the Court’s expanding free speech jurisprudence, 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).

554 Pub. L. 103–94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321–7326. Executive branch employees (except those appointed by the President, by and with the

advice and consent of the Senate) who are listed in § 7323(b)(2), which generally

include those employed by agencies involved in law enforcement or national security, remain under restrictions similar to the those in the old Hatch Act on taking

an active part in political management or political campaigns.

555 53 Stat. 1147, 5 U.S.C. § 7311.

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574 ART. II—EXECUTIVE DEPARTMENT
asserted the right to strike against the government.556 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.557 Along

with the loyalty-security programs initiated by President Truman 558 and carried forward by President Eisenhower,559 these measures reflected the Cold War era and the fear of subversion and espionage following the disclosures of several such instances here and

abroad.560

Financial Disclosure and Limitations.—The Ethics in Government Act of 1978 561 requires high-level federal personnel to make

detailed, annual disclosures of their personal financial affairs.562 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 of interest, 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.563 Despite assertions that employee privacy interests are needlessly invaded by the

breadth of disclosures, to date judicial challenges have been unsuccessful, with one exception.564 The one provision that was invali556 See Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956), 60.

557 5 U.S.C. § 3333. The loyalty disclaimer oath was declared unconstitutional

in Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969), and the did not appeal.

The strike disclaimer oath was voided in National Ass’n of Letter Carriers v. Blount,

305 F. Supp. 546 (D.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 Fed’n

of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971), aff’d per curiam, 404

U.S. 802 (1971).

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

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

560 See generally, Report of the Special Committee on The Federal LoyaltySecurity Program, The Association of the Bar of the City of New York (New York:

1956).

561 Pub. 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 Pub. 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.

562 See Developments, supra, 97 HARV. L. REV. at 1660–1669.

563 97 Harv. L. Rev. at 1661 (citing S. REP. 170, 95th Cong., 2d sess. (1978), 21–

22).

564 97 Harv. L. Rev. at 1664–69. The Ethics in Government Act also expanded

restrictions on post-employment by imposing bans on employment, varying from a

brief period to an out-and-out lifetime ban in certain cases. Id. at 1669–76. The 1989

revision enlarged and expanded on these provisions. 103 Stat. 1716–1724, amending 18 U.S.C. § 207.

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ART. II—EXECUTIVE DEPARTMENT 575
dated was section 501(b),565 which prohibits Members of Congress

and officers or employees of the government, regardless of salary

level, from receiving any “honorarium,” which the statute defines

as “a payment of money or any thing 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) . . . .” 566 The Supreme Court held that

this prohibition, even interpreted in accordance with the standards

applicable to speech restrictions on government employees, was overbroad, as “[t]he speculative benefits the honoraria ban may provide

the government are not sufficient to justify this crudely crafted burden of respondents’ freedom to engage in expressive activities.” 567

Legislation Increasing Duties of an Officer.—Finally, “Congress may increase the powers and duties of an existing office without thereby rendering it necessary that the incumbent should be

again nominated and appointed.” 568 Such legislation does not constitute an attempt by Congress to seize the appointing power.

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.569

Senate Approval.—The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its

approval of a treaty. In the words of an early opinion of the Attorney General: “The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection

of the President’s nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limita565 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 U.S.C.

App. § 501(b).

566 5 U.S.C. App. § 505(3).

567 United States v. NTEU, 513 U.S. 454, 477 (1995).

568 Shoemaker v. United States, 147 U.S. 282, 301 (1893). The Court noted that

the additional duties at issue were “germane to the offices.” Id.

569 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155–56 (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 1525 (1833); In re Hennen, 38 U.S.

(13 Pet.) 230, 259 (1839).

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576 ART. II—EXECUTIVE DEPARTMENT
tions 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.” 570 This view is borne out

by early opinion,571 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,

572 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, President Roosevelt

rejected a similar demand by the Senate, an action that went unchallenged.573

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,

574 on October

25, 1926, the Supreme Court had contrived to sidestep every occasion for a decisive pronouncement regarding the removal power, its

extent, and location. The point immediately at issue in the Myers

case was the effectiveness of an order of the Postmaster General,

570 3 Ops. Atty. Gen. 188 (1837).

571 3 J. Story, supra at 1525–26; 5 WORKS OF THOMAS JEFFERSON 161–62 (P. Ford

ed., 1904); 9 WRITINGS OF JAMES MADISON 111–13 (G. Hunt ed., 1910).

572 286 U.S. 6 (1932).

573 E. Corwin, supra at 77.

574 272 U.S. 52 (1926).

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ART. II—EXECUTIVE DEPARTMENT 577
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.” 575

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 relied mainly on the so-called “decision of 1789,”

which referred to Congress’s that year inserting in the act establishing the Department of State a proviso that 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: “Article II grants to the President the

executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully

executed; that Article II excludes the exercise of legislative power

by Congress to provide for appointments and removals, except only

as granted therein to Congress in the matter of inferior offices; that

Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that

it does vest, their appointment in other authority than the President with the Senate’s consent; that the provisions of the second

section of Article II, which blend action by the legislative branch,

or by part of it, in the work of the executive, are limitations to be

strictly construed and not to be extended by implication; that the

President’s power of removal is further established as an incident

to his specifically enumerated function of appointment by and with

the advice of the Senate, but that such incident does not by implication extend to removals the Senate’s power of checking appointments; and finally that to hold otherwise would make it impossible

for the President, in case of political or other differences with the

575 19 Stat. 78, 80.

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578 ART. II—EXECUTIVE DEPARTMENT
Senate or Congress, to take care that the laws be faithfully executed.” 576

The holding in Myers 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 federal judges. 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.577 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.” 578

Thus spoke the former President Taft, and the result of his prepossession was a rule that, as was immediately pointed out, ex576 272 U.S. at 163–64.

577 The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of “estate in office,”

from which the conclusion followed that the impeachment power was the only power

of removal intended by the Constitution; second, that the power of removal was an

incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; third,

that Congress could, by virtue of its power “to make all laws which shall be necessary and proper,” etc., determine the location of the removal power; fourth, that the

President by virtue of his “executive power” and his duty “to take Care that the

Laws be faithfully executed,” possesses the power of removal over all officers of the

United States except judges. In the course of the debate on the act to establish a

Department of Foreign Affairs (later changed to Department of State) all of these

views were put forward, with the final result that a clause was incorporated in the

measure that implied, as pointed out above, that the head of the department would

be removable by the President at his discretion. Contemporaneously, and indeed until after the Civil War, this action by Congress, in other words “the decision of 1789,”

was interpreted as establishing “a practical construction of the Constitution” with

respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the “correct interpretation” of the Constitution was that the power of removal was always an incident of

the power of appointment, and that therefore in the case of officers appointed by

the President with the advice and consent of the Senate the removal power was

exercisable by the President only with the advice and consent of the Senate. For an

extensive review of the issue at the time of Myers, see Corwin, The President’s Removal Power Under the Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1467

(1938).

578 272 U.S. at 134. Note the parallelism of the arguments from separation-ofpowers and the President’s ability to enforce the laws in the decision rendered on

Congress’s effort to obtain a role in the actual appointment of executive officers in

Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), and in many of the subsequent separationof-powers decisions.

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ART. II—EXECUTIVE DEPARTMENT 579
posed 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 that 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.” 579 In Humphrey’s Executor v. United States,

580 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 Humphrey’s

Executor was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt

that he was “removed” from office, the reason being their divergent

views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: “A postmaster is an executive officer restricted to

the performance of executive functions. He is charged with no duty

at all related to either the legislative or judicial power. The actual

decision in the Myers case finds support in the theory that such an

office is merely one of the units in the executive department and,

hence, inherently subject to the exclusive and illimitable power of

removal by the Chief Executive, whose subordinate and aide he is. . . .

It goes no farther; much less does it include an officer who occupies

579 ANNALS OF CONGRESS 611–612 (1789).

580 295 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, 106–10. Now-Justice Scalia continues to adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 707–11, 723–27 (1988) (dissenting).

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580 ART. II—EXECUTIVE DEPARTMENT
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.” 581

The Wiener Case.—Curtailment of the President’s power of removal, so liberally delineated in the Myers decision, was not to end

with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting

his authority in the statute creating an agency endowed with quasijudicial functions, remained competent to remove members serving

581 295 U.S. at 627–29, 631–32. 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 447–48 (1941). 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. at

451.

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thereon. To this query the Court supplied a negative answer in Wiener v. United States.

582 Emphasizing 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 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,583 and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties.584 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.” 585 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 586 and three days later

rescinded the regulation establishing the office.587 In subsequent litigation, a federal district court held that the firing by the Acting

Attorney General had violated the regulations, which were in force

at the time and which had to be followed until they were rescinded.588 The Supreme Court in United States v. Nixon 589 seemed

to confirm this analysis by the district court in upholding the au582 357 U.S. 349 (1958).

583 28 U.S.C. § 516.

584 28 U.S.C. §§ 509, 510, 515, 533.

585 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.

586 The formal documents effectuating the result are set out in 9 Weekly Comp.

Pres. Doc. 1271–1272 (1973).

587 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).

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

589 418 U.S. 683, 692–97 (1974).

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582 ART. II—EXECUTIVE DEPARTMENT
thority 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.590 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.591 Myers actually struck

down only a law involving the Senate in the removal of postmasters, but the broad-ranging opinion had long stood for the proposition that inherent in the President’s obligation to see to the faithful execution of the laws was his right to remove any executive officer

as a means of discipline. Humphrey’s Executor had qualified this

proposition by upholding “for cause” removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised “quasi-” legislative and adjudicative functions as well as some form of executive function. Maintaining the

holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as

a core executive function in recent cases had cast considerable doubt

on the continuing validity of Humphrey’s Executor.

In Bowsher v. Synar,

592 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 pro590 The first question remained unstated, but the second issue was extensively

debated in Special Prosecutor: Hearings Before the Senate Judiciary Committee, 93d

Congress, 1st Sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d

Congress, 1st Sess. (1973).

591 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.

592 478 U.S. 714 (1986).

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ART. II—EXECUTIVE DEPARTMENT 583
visions of the 1985 “Gramm-Rudman-Hollings” Deficit Control Act 593

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.” 594

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.” 595

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.596 This

reconciliation of Myers and Humphrey’s Executor was made clear

and express in Morrison v. Olson.

597

That case sustained the independent counsel statute.598 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.” Because the counsel

was clearly exercising “purely” executive duties, in the sense that

593 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L.

99–177, 99 Stat. 1038.

594 478 U.S. at 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. at 734–36.

595 478 U.S. at 726.

596 478 U.S. at 725 n.4.

597 487 U.S. 654 (1988).

598 Pub. L. 95–521, title VI, 92 Stat. 1867, as amended by Pub. L. 97–409, 96

Stat. 2039, and Pub. L. 100–191, 101 Stat. 1293, 28 U.S.C. §§ 49, 591 et seq.

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584 ART. II—EXECUTIVE DEPARTMENT
term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. The Court, however, said that

Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that

the President must be able to remove at will officers performing

“purely” executive functions had not survived Humphrey’s Executor.

It was true, the Court admitted, that, in the latter case, it had

distinguished between “purely” executive officers and officers who

exercise “quasi-legislative” and “quasi-judicial” powers in marking

the line between officials who may be presidentially removed at will

and officials who can be protected through some form of good cause

removal limits. “[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a

‘good cause’-type restriction on the President’s power to remove an

official cannot be made to turn on whether or not that official is

classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but

to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty

to ‘take care that the laws be faithfully executed’ under Article II.

Myers was undoubtedly correct in its holding, and in its broader

suggestion that there are some ‘purely executive’ officials who must

be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum

from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as ‘quasi-legislative’ or ‘quasi-judicial’ in large part

reflected our judgment that it was not essential to the President’s

proper execution of his Article II powers that these agencies be headed

up by individuals who were removable at will. We do not mean to

suggest that an analysis of the functions served by the officials at

issue is irrelevant. But the real question is whether the removal

restrictions are of such a nature that they impede the President’s

ability to perform his constitutional duty, and the functions of the

officials in question must be analyzed in that light.” 599

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

599 487 U.S. at 689–91.

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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.600

As a result of these cases, the long-running controversy with

respect to the legitimacy of the independent agencies appears to have

been settled,601 although it appears likely that the controversies with

respect to congressional-presidential assertions of power in executive agency matters are only beginning.

Inferior Officers.—In the case of inferior officers, Congress may

“limit and restrict the power of removal as it deems best for the

public interest,” 602 and when Congress has vested the power to appoint these officers in heads of departments, it is ordinarily the department head, rather than the President, who enjoys the power of

removal. However, in the case of Free Enterprise Fund v. Public Company Accounting Oversight Bd.,

603 the Court considered whether an

inferior officer can be twice insulated from the President’s removal

authority—in other words, can a principal officer whom Congress

has protected from at will removal by the President in turn have

his or her power to remove an inferior officer restricted? 604 The Court

600 But notice the analysis followed by three Justices in Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482–89 (1989) (concurring), and consider the

possible meaning of the recurrence to formalist reasoning in Granfinanciera, S.A. v.

Nordberg, 492 U.S. 33, (1989). See also Justice Scalia’s use of the Take Care Clause

in pronouncing limits on Congress’s constitutional power to confer citizen standing

in Lujan v. Defenders of Wildlife, 505 U.S. 555, 576–78 (1992), although it is not

clear that he had a majority of the Court with him.

601 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).

602 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).

603 561 U.S. ___, No. 08–861, slip op. (2010).

604 The case involved the Public Company Accounting Oversight Board, a private non-profit entity with a five-member board, that has significant authority over

accounting firms that participate in auditing public companies. The board members

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586 ART. II—EXECUTIVE DEPARTMENT
held that such multilevel protection from removal is contrary to the

President’s executive authority. First, even if the President determines that the inferior officer is neglecting his duties or discharging them improperly, the President does not have the power to remove that officer. Then, if the President seeks to have the principal

officer remove the inferior officer, the principal officer may not agree

with the President’s determination, and the President generally cannot remove the principal officer simply because of this disagreement.605

In the absence of specific legislative provision to the contrary,

the President may at his discretion remove an inferior officer whose

term is limited by statute,606 or one appointed with the consent of

the Senate.607 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.608 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 leveled at his fellow directors.609 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 held to be within his

duty to “take Care that the Laws be faithfully executed.” So interpreted, the removal 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 610 or pressing litigation in their behalf,611 refusing a congressional call for papers which might be used,

in their absence from the seat of government, to their disadvanare appointed to staggered 5-year terms by the Securities and Exchange Commission, and can only be removed for “good cause shown,” which requires a finding of

either a violation of securities laws or board rules, willful abuse of power, or failure

to enforce compliance with the rules governing registered public accounting firms.

15 U.S.C. § 7217(d)(3). The members of the Commission, in turn, can only be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

605 561 U.S. ___, No. 08–861, slip op. at 14–15 (2010).

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

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

608 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).

609 Morgan v. TVA, 28 F. Supp. 732 (E.D. Tenn. 1939), aff’d, 115 F.2d 990 (6th

Cir. 1940), cert. denied, 312 U.S. 701 (1941).

610 E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).

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

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ART. II—EXECUTIVE DEPARTMENT 587
tage,612 challenging the constitutional validity of legislation deemed

detrimental to their interests.613 Presidents throughout our history

have attempted to spread their own official immunity to their subordinates by resisting actions of the courts or of congressional committees to require subordinates to divulge communications from or

to the President 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 in primarily interbranch disputes on the basis of the political strengths of the parties, the issue finally became subject to judicial elaboration. The doctrine of executive privilege was at once

recognized as existing and having a constitutional foundation while

at the same time it was definitely bounded in its assertion by the

principle of judicial review. Because of these cases, because of the

intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President,

either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power

to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of

the President either in civil litigation with the Government or in a

criminal proceeding brought by government prosecutors. Generally,

the categories of executive privilege have been the same whether it

is Congress or a private individual seeking the information, but it

is possible that the congressional assertion of need may overbalance the presidential claim to a greater degree than that of a

private individual. The judicial precedents are so meager that it is

not yet 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

612 E.g., 2 J. Richardson, supra at 847.

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

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588 ART. II—EXECUTIVE DEPARTMENT
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.614 During the Nixon Administration, the litigation 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.615 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.616 Generally speaking, when the prosecu614 For a good statement of the basis of the doctrine, the areas in which it is

asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st Sess. (1971), 420–43, (then-Assistant Attorney

General Rehnquist). Former Attorney General Rogers, in stating the position of the

Eisenhower Administration, identified five categories of executive privilege: (1) military and diplomatic secrets and foreign affairs, (2) information made confidential by

statute, (3) information relating to pending litigation, and investigative files and reports, (4) information relating to internal government affairs privileged from disclosure in the public interest, and (5) records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates,

and informal working papers. The Power of the President To Withhold Information

from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d Sess. (Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J.

941 (1958). In the most expansive version of the doctrine, Attorney General Kleindienst

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 (1974).

The book, however, precedes the Court decision in Nixon.

615 There are also, of course, instances of claimed access for other purposes, for

which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 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. denied, 415 U.S. 977 (1974).

616 See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of

Criminal Procedure. The earliest judicial dispute involving what later became known

as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D.

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ART. II—EXECUTIVE DEPARTMENT 589
tion is confronted with a judicial order to turn over to a defendant

information that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding

disclosure.617 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.618

In civil cases the government may invoke the state secrets privilege against revealing military or other secrets. In United States v.

Reynolds,

619 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

private litigant’s showing of necessity 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 the court is satisfied of the appropriateness the privilege must prevail no matter

how compelling the need.620

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.

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

618 Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.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.

619 345 U.S. 1 (1953).

620 345 U.S. at 7–8, 9–10, 11. Withholding of information relating to governmental employees’ clearances, disciplines, or discharges often raises claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan,

484 U.S. 518 (1988). After the Court approved a governmental secrecy agreement

imposed on CIA 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’s constitutional power to manage the executive. National Fed’n of Fed. Employees v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub

nom. American Foreign Service Ass’n 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 governSec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers

590 ART. II—EXECUTIVE DEPARTMENT
Reynolds dealt with an evidentiary privilege. There are other

circumstances, however, in which cases must be “dismissed on the

pleadings without ever reaching the question of evidence.” 621 In holding that federal courts should refuse to entertain a breach of contract action seeking enforcement of an agreement to compensate someone who performed espionage services during the Civil War, the Court

in Totten v. United States declared that “public policy forbids the

maintenance of any suit in a court of justice, the trial of which would

inevitably lead to the disclosure of matters which the law itself regards as confidential.” 622

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.623 While

holding that the subpoenas were valid and should be obeyed, the

Supreme Court recognized the constitutional status of executive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

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 indepenment under the state-secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C. Cir.

1978); 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, 875–80 (1984).

621 Reynolds, 345 U.S. at 11, n.26.

622 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating and applying Totten’s “broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden”). The Court in Tenet distinguished Webster

v. Doe on the basis of “an obvious difference . . . between a suit brought by an acknowledged (though covert) employee of the CIA and one filed by an alleged former

spy.” Id. at 10.

623 United States v. Nixon, 418 U.S. 683, 692–97 (1974).

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dent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers.624

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, although the President’s claim of privilege is entitled to deference, the courts must

balance two sets of interests when the claim depends solely on a

broad, undifferentiated claim of confidentiality.

“In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege

on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to

temper the candor of their remarks by the infrequent occasions of

disclosure because of the possibility that such conversations will be

called for in the context of a criminal prosecution.”

“On the other hand, the allowance of the privilege to withhold

evidence that is demonstrably relevant in a criminal trial would cut

deeply into the guarantee of due process of law and gravely impair

the basic function of the courts. A President’s acknowledged need

for confidentiality in the communications of his office is general in

nature, whereas the constitutional need for production of relevant

evidence in a criminal proceeding is specific and central to the fair

adjudication of a particular criminal case in the administration of

justice. . . .”

“We conclude that when the ground for asserting privilege as

to subpoenaed materials sought for use in a criminal trial is based

624 418 U.S. at 707–08. Presumably, the opinion recognizes a similar power 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. denied, 425 U.S. 911 (1976); United States v. Ehrlichman,

389 F. Supp. 95 (D.D.C. 1974).

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers

592 ART. II—EXECUTIVE DEPARTMENT
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.” 625

Obviously, United States v. Nixon left much unresolved. It did

recognize the constitutional status of executive privilege as a doctrine. It did affirm the power of the courts to resolve disputes over

claims of the privilege. But it left 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 did not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases, nor did it

touch upon denial of information to Congress, or public disclosure

of information.

The Court’s decision in Nixon v. Administrator of General Services 626 did not elucidate any of these questions 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 so that they could 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 related to the possible public disclosure of some

of the records. The decision did recognize “adequate justifications”

for enactment of the law, and termed them cumulatively “comparable” to those held to justify in camera inspection in United States

v. Nixon.

627 Congress’s purposes cited by the Court included 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. Although 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 precedential

value.

625 418 U.S. 683, 711–13. 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).

626 433 U.S. 425, 446–55 (1977). See id. at 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. at 447–49. 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).

627 433 U.S. at 452.

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ART. II—EXECUTIVE DEPARTMENT 593
Public disclosure was at issue in 2004 when the Court weighed

a claim of executive privilege asserted as a bar to discovery orders

for information disclosing the identities of individuals who served

on an energy task force chaired by the Vice President.628 Although

the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,

629 and, in instructing the appeals court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.630

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.631 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, or preservation of investigative

records. Counterposed 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 argu628 Cheney v. United States District Court, 542 U.S. 367 (2004).

629 Although the information sought in Nixon was important to “the constitutional need for production of relevant evidence in a criminal proceeding,” the suit

against the Vice President was civil, and withholding the information “does not hamper another branch’s ability to perform its ‘essential functions.’ ” 542 U.S. at 383,

384.

630 The Court recognized “the paramount necessity of protecting the Executive

Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.” 542 U.S. at 382. But cf. Clinton v. Jones, 520

U.S. 681, 702 (1997).

631 See the extensive discussion in Shane, Legal Disagreement and Negotiation

in a Government of Laws: The Case of Executive Privilege Claims Against Congress,

71 MINN. L. REV. 461 (1987).

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594 ART. II—EXECUTIVE DEPARTMENT
ment. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts

with respect to the President’s obligations to obey its subpoenas.

The Committee lost its case, but the courts based their rulings upon

prudential considerations rather than upon questions of basic power,

inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives.632 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.633 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.634 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.

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

The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the

intent and scope of its terms. In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as “nothing more than

632 Senate Select Committee on Presidential Campaign Activities v. Nixon, 370

F. Supp. 521 (D.D.C.), aff’d, 498 F.2d 725 (D.C. Cir. 1974).

633 President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The

impeachment article and supporting material are set out in H. REP. NO. 93–1305,

93d Cong., 2d Sess. (1974).

634 For consideration of various proposals by which Congress might proceed, see

Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 HARV. J. LEGIS. 145 (1984); Brand

& Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means

by Which Congress May Enforce Investigative Demands Against Executive Branch

Officials, 36 CATH. U. L. REV. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L. J. 1333.

Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate

ART. II—EXECUTIVE DEPARTMENT 595
a supplement . . . for the purpose of establishing an auxiliary method

of appointment, in cases to which the general method was inadequate.” It is generally accepted that the clause was designed to

enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and

therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political

purposes, appointing officials who might have difficulty securing Senate confirmation.

Two fundamental textual issues arise in interpreting the Recess Appointments Clause. The first is the meaning of the phrase

“the Recess of the Senate.” As the Senate may recess both between

and during its annual sessions, the time period during which the

President may make a recess appointment is not clearly answered

by the text of the Constitution. The second fundamental textual issue is what constitutes a vacancy that “may happen” during the

recess of the Senate. If the words “may happen” are interpreted to

refer only to vacancies that arise during a recess, then the President would lack authority to make a recess appointment to a vacancy that existed before the recess began. For over two centuries

the Supreme Court did not address either of at. Ithese issues,635

leaving it to the lower courts and other branches of government to

interpret the scope of the Recess Appointments Clause.636

The Supreme Court ultimately adopted a relatively broad interpretation of the Clause in National Labor Relations Board v. Noel

Canning.

637 With respect to the meaning of the phrase “Recess of

the Senate,” the Court concluded that the phrase applied to both

inter-session recesses and intra-session recesses. In so holding, the

Court, finding the text of the Constitution ambiguous,638 relied on

635 See NLRB v. Noel Canning, 573 U.S. ___, No. 12–1281, slip op. at 9 (2014).

636 For lower court decisions on the Recess Appointments Clause, see, e.g., In re

Farrow, 3 Fed. 112 (C.C.N.D. Ga. 1880); United States v. Allocco, 305 F.2d 704, 712

(2d Cir. 1962), cert. denied, 371 U.S. 964 (1963); United States v. Woodley, 751 F.2d

1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); Evans v.

Stephens, 387 F.3d 1220, 1226–27 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005).

For prior executive branch interpretations of the Recess Appointments Clause, see

Op. Att’y Gen. 631, 633–34 (1823); 2:525 (1832), 3:673 (1841), 4:361 (1845), 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), 22:82 (1898), 23:599 (1901), 26:234

(1907), 30:314 (1914), 33:20 (1921), 41:463 (1960); 3 Op. OLC 314, 316 (1979); 6 Op.

OLC 585, 586 (1982); 13 Op. OLC 271 (1989); 16 Op. OLC 15 (1992); 20 Op. OLC

124, 161 (1996); 25 Op. OLC 182 (2001). For the early practice on recess appointments, see G. HAYNES, THE SENATE OF THE UNITED STATES 772–78 (1938).

637 573 U.S. ___, No. 12–1281, slip op. (2014).

638 Id. at 9–11. More specifically, the Court found nothing in dictionary definitions or common usage contemporaneous to the Constitution that would suggest that

Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate

596 ART. II—EXECUTIVE DEPARTMENT
(1) a pragmatic interpretation of the Clause that would allow the

President to ensure the “continued functioning” of the federal government when the Senate is away,639 and (2) “long settled and established [historical] practice” of the President making intrasession recess appointments.640 The Court declined, however, to say

how long a recess must be to fall within the Clause, instead holding that historical practice counseled that a recess of more than three

days but less than ten days is “presumptively too short” to trigger

the President’s appointment power under the Clause.641 With respect to the phrase “may happen,” the majority, again finding ambiguity in the text of the Clause,642 held that the Clause applied both

to vacancies that first come into existence during a recess and to

vacancies that initially occur before a recess but continue to exist

during the recess.643 In so holding, the Court again relied on both

pragmatic concerns 644 and historical practice.645

Even under a broad interpretation of the Recess Appointments

Clause, the Senate may limit the ability to make recess appointments by exercising its procedural prerogatives. The Court in Noel

Canning held that, for the purposes of the Recess Appointments

Clause, the Senate is in session when the Senate says it is, provided that, under its own rules, it retains the capacity to transact

an intra-session recess was not a recess. The Court noted that, while the phrase

“the Recess” might suggest limiting recess appointments to the single break between sessions of Congress, the word “the” can also be used “generically or universally,” see, e.g., U.S. CONST. art. I, sec. 3, cl. 5 (directing the Senate to choose a President pro tempore “in the Absence of the Vice-President”), and that there were examples

of “the Recess” being used in the broader manner at the time of the founding. 573

U.S. ___, No. 12–1281, slip op. at 9–11.

639 Id. at 11 (“The Senate is equally away during both an inter-session and an

intra-session recess, and its capacity to participate in the appointments process has

nothing to do with the words it uses to signal its departure.”).

640 The Court noted that Presidents have made “thousands” of intra-session recess appointments and that presidential legal advisors had been nearly unanimous

in determining that the clause allowed these appointments. Id. at 12.

641 Id. at 21. The Court left open the possibility that some very unusual circumstance, such as a national catastrophe that renders the Senate unavailable, could

require the exercise of the recess appointment power during a shorter break. Id.

642 The Court noted that even Thomas Jefferson thought the phrase in question

could point to both vacancies that “may happen to be” during a recess as well as

those that “may happen to fall” during a recess. Id. at 22.

643 Id. at 1–2.

644 Id. at 26 (“[W]e believe the narrower interpretation risks undermining constitutionally conferred powers [in that] . . . [i]t would prevent the President from

making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment,

and no matter how late in the session the office fell vacant.”).

645 Id. at 34 (“Historical practice over the past 200 years strongly favors the

broader interpretation. The tradition of applying the Clause to pre-recess vacancies

dates at least to President James Madison.”).

Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate

ART. II—EXECUTIVE DEPARTMENT 597
Senate business.646 In this vein, Noel Canning provides the Senate

with the means to prevent recess appointments by the President,

who attempts to employ the “subsidiary method” for appointing officers of the United States (i.e., recess appointments) to avoid the

“norm” 647 for appointment (i.e., appointment pursuant to the Article II, sec. 2, cl. 2).648

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, he or 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.649

646 Id. In the context of Noel Canning, the Court held that the Senate was in

session even during a pro forma session, a brief meeting of the Senate, often lasting

minutes, in which no legislative business is conducted. Id. at 38–39. Because the

Journal of the Senate (and the Congressional Record) declared the Senate in session during those periods, and because the Senate could, under its rules, have conducted business under unanimous consent (a quorum being presumed), the Court

concluded that the Senate was indeed in session. In so holding, the Court deferred

to the authority of Congress to “determine the Rules of its Proceedings,” see U.S.

CONST. art. I, sec. 5, cl. 2, relying on previous case law in which the Court refused to

question the validity of a congressional record. 573 U.S. ___, No. 12–1281, slip op.

at 39 (citing United States v. Ballin, 144 U.S. 1, 5 (1892)).

647 573 U.S. ___, No. 12–1281, slip op. at 40.

648 It should be noted that, by an act of Congress, if a vacancy existed when the

Senate was in session, the ad interim appointee, subject to certain exceptions, may

receive no salary until he has been confirmed by the Senate. 5 U.S.C. § 5503. By

targeting the compensation of appointees, as opposed to the President’s recess appointment power itself, this limitation acts as an indirect control on recess appointments, but its constitutionality has not been adjudicated. A federal district court noted

that “if any and all restrictions on the President’s recess appointment power, however limited, are prohibited by the Constitution,” restricting payment to recess appointees might be invalid. Staebler v. Carter, 464 F. Supp. 585, 596 n.24 (D.D.C.

1979).

649 United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert.

denied, 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 that the practice was not a good idea. 106 CONG. REC. 18130–18145 (1960). Other

cases holding that the President’s power under the Recess Appointments Clause extends to filling judicial vacancies in Article III courts include United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v.

Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). In the

latter case, however, Justice Stevens, although concurring in the denial of the petiSec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate

598 ART. II—EXECUTIVE DEPARTMENT
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 that designates the inferior officer who is to act in place of

his immediate superior. But, in the absence of such a provision, both

theory and practice concede the President the power to make the

designation.650

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 shall Commission all the Officers of the United States.

LEGISLATIVE ROLE OF THE PRESIDENT

The clause directing the President to report to the Congress on

the state of the union imposes a duty rather than confers a power,

and is the formal basis of the President’s legislative leadership. The

President’s legislative role 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 Contion of certiorari, wrote that “it would be a mistake to assume that our disposition

of this petition constitutes a decision on the merits of whether the President has

the constitutional authority to fill future Article III vacancies, such as vacancies on

this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’ ” 544 U.S. at 943.

650 See the following Ops. Att’y Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 (1904);

28:95 (1909); 38:298 (1935).

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ART. II—EXECUTIVE DEPARTMENT 599
gress.651 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,652 but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line,

albeit less boldly and persistently than their later imitators.653 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.654 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,” 655 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.656 The power to “receive” ambassadors, et cetera, includes, moreover, the right to refuse to receive them, to request their

recall, to dismiss them, and to determine their eligibility under our

laws.657 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

651 N. SMALL, SOME PRESIDENTIAL INTERPRETATIONS OF THE PRESIDENCY (1932); W. BINKLEY,

THE PRESIDENT AND CONGRESS (2d ed. 1962); E. Corwin, supra, chs. 1, 7.

652 The first Harrison, Polk, Taylor, and Fillmore all fathered sentiments to this

general effect. See 4 J. Richardson, supra at 1860, 1864; 6 id. at 2513–19, 2561–62,

2608, 2615.

653 See sources cited supra.

654 Warren, Presidential Declarations of Independence, 10 B.U.L. REV. 1 (1930);

3 W. Willoughby, supra at 1488–1492.

655 7 Ops. Atty. Gen. 186, 209 (1855).

656 5 J. MOORE, INTERNATIONAL LAW DIGEST 15–19 (1906).

657 Id. at 4:473–548; 5:19–32.

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

600 ART. II—EXECUTIVE DEPARTMENT
submitted to the Senate. Exceptions are to be construed strictly.” 658

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.” 659

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,” 660 which,

“more honored in the breach than the observance,” still survives on

the statute books.661 The year following, John Marshall, then a Member of the House of Representatives, defended President John Adams

for delivering a fugitive from justice to Great Britain under the 27th

article of the Jay Treaty, instead of leaving the business to the courts.

He said: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of

consequence, the demand of a foreign nation can only be made on

him. He possesses the whole Executive power. He holds and directs

the force of the nation. Of consequence, any act to be performed by

658 Opinion on the Question Whether the Senate Has the Right to Negative the

Grade of Persons Appointed by the Executive to Fill Foreign Missions, April 24, 1790,

5 WRITINGS OF THOMAS JEFFERSON 161, 162 (P. Ford ed., 1895).

659 4 J. Moore, supra at 680–81.

660 This measure is now contained in 18 U.S.C. § 953.

661 See Memorandum on the History and Scope of the Law Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 64th Congress, 2d Sess. (1917).

The author was Mr. Charles Warren, then Assistant Attorney General. Further details concerning the observance of the “Logan Act” are given in E. Corwin, supra at

183–84, 430–31.

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ART. II—EXECUTIVE DEPARTMENT 601
the force of the nation is to be performed through him.” 662 Ninetynine years later, a Senate Foreign Relations Committee took occasion to reiterate Marshall’s doctrine with elaboration.663

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”

In support of this proposition he disparaged the presidential function of reception: “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.” 664

The President’s Diplomatic Role.—Hamilton, although he had

expressed substantially the same view in The Federalist regarding

the power of reception,665 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 trea662 10 ANNALS OF CONGRESS 596, 613–14 (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).

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

664 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 611 (1865).

665 No. 69 (J. Cooke ed. 1961), 468.

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602 ART. II—EXECUTIVE DEPARTMENT
ties 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.” 666

Jefferson’s Real Position.—Nor did Jefferson himself officially support Madison’s point of view, as the following extract from

his “minutes of a Conversation,” which took place July 10, 1793,

between himself and Citizen Genet, show: “He asked if they [Congress] were not the sovereign. I told him no, they were sovereign

in making laws only, the executive was sovereign in executing them,

and the judiciary in construing them where they related to their

department. ‘But,’ said he, ‘at least, Congress are bound to see that

the treaties are observed.’ I told him no; there were very few cases

indeed arising out of treaties, which they could take notice of; that

the President is to see that treaties are observed. ‘If he decides against

the treaty, to whom is a nation to appeal?’ I told him the Constitution had made the President the last appeal. He made me a bow,

and said, that indeed he would not make me his compliments on

such a Constitution, expressed the utmost astonishment at it, and

seemed never before to have had such an idea.” 667

666 Letter of Pacificus, No. 1, 7 WORKS OF ALEXANDER HAMILTON 76, 82–83 (J. Hamilton ed., 1851).

667 4 J. Moore, supra at 680–81.

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ART. II—EXECUTIVE DEPARTMENT 603
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.” 668

Hamilton, with the case of Genet before him, had taken the contrary position, which history has ratified. In consequence of his power

to receive and dispatch diplomatic agents, but more especially the

former, the President possesses the power to recognize new states,

communities claiming the status of belligerency, and changes of government in established states; also, by the same token, the power

to decline recognition, and thereby decline diplomatic relations with

such new states or governments. The affirmative precedents down

to 1906 are succinctly summarized by John Bassett Moore in his

famous Digest, as follows: “In the preceding review of the recognition, respectively, of the new states, new governments, and belligerency, there has been made in each case a precise statement of facts,

showing how and by whom the recognition was accorded. In every

case, as it appears, of a new government and of belligerency, the

question of recognition was determined solely by the Executive. In

the case of the Spanish-American republics, of Texas, of Hayti, 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

668 Letters of Helvidius, 5 WRITINGS OF JAMES MADISON 133 (G. Hunt ed., 1905).

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604 ART. II—EXECUTIVE DEPARTMENT
cases, the recognition was given by the Executive solely on his own

responsibility.” 669

An examination of this historical practice, along with other functional considerations, led the Supreme Court to hold in Zivotofsky

v. Kerry that the Executive retains exclusive authority over the recognition of foreign sovereigns and their territorial bounds.670 Although Congress, pursuant to its enumerated powers in the field of

foreign affairs, may properly legislate on matters which precede and

follow a presidential act of recognition, including in ways which may

undercut the policies that inform the President’s recognition decision, it may not alter the President’s recognition decision.671

The Case of Cuba.—The question of Congress’s right also to

recognize new states was prominently raised in connection with Cuba’s 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

669 1 J. Moore, supra, 243–44. See Restatement, Foreign Relations §§ 204, 205.

670 Zivotofsky v. Kerry, 576 U.S. ___, No. 13–628, slip op. (2015). The Court identified the Reception Clause, along with additional provisions in Article II, as providing the basis for the Executive’s power over recognition. Id. at 9–10. See supra Clause

1. Powers and Term of the President, Nature and Scope of Presidential Power, Executive Power: Theory of the Presidential Office, The Zivotofsky Case.

671 See Zivotofsky, slip op. at 27. While observing that Congress may not enact

a law that “directly contradicts” a Presidential recognition decision, the Court stated

that Congress could still express its disagreement in multiple ways: “For example,

it may enact an embargo, decline to confirm an ambassador, or even declare war.

But none of these acts would alter the President’s recognition decision.” Id.

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ART. II—EXECUTIVE DEPARTMENT 605
branch is the sole mouthpiece of the nation in communication with

foreign sovereignties.”

“Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon

diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a Congressional recognition of belligerency or independence would be a

nullity. . . . Congress can help the Cuban insurgents by legislation

in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if our

interpretation of the Constitution is correct. That it is correct . . .

[is] shown by the opinions of jurists and statesmen of the past.” 672

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.673 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

672 S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20–22.

673 Senator Nelson of Minnesota said: “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).

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606 ART. II—EXECUTIVE DEPARTMENT
the People’s Republic of China was admitted to the United Nations

and Taiwan excluded—proved to be an important part of American

foreign policy during the Cold War.674

Congressional Implementation of Presidential Policies

No President was ever more jealous of his prerogative in the

realm of foreign relations than 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.” 675

The fact is, of course, that Congress has enormous powers that

are 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 676 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

1941.677 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

674 President Carter’s termination of the Mutual Defense Treaty with Taiwan,

which precipitated a constitutional and political debate, was perhaps an example of

nonrecognition or more appropriately derecognition. On recognition and nonrecognition policies in the post-World War II era, see Restatement, Foreign Relations, §§ 202,

203.

675 1 MESSAGES AND PAPERS OF WOODROW WILSON 58 (A. Shaw ed., 1924).

676 55 Stat. 31 (1941).

677 E. Corwin, supra at 184–93, 423–25, 435–36.

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ART. II—EXECUTIVE DEPARTMENT 607
abroad in the absence of a declaration of war, but also limiting his

economic and political powers through curbs on his authority to declare national emergencies.678 The lesson of history, however, appears to be that congressional efforts to regain what is deemed to

have been lost to the President are intermittent, whereas the presidential exercise of power in today’s world is unremitting.679

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, that 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,

680 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’s opinion for the Court 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 wrote:

“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 un678 Legislation includes the War Powers Resolution, Pub. L. 93–148, 87 Stat. 555

(1953), 50 U.S.C. §§ 1541–1548; the National Emergencies Act, Pub. 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, Pub. 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); see also

the Foreign Sovereign Immunities Act of 1976, Pub. 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).

679 “We may say that power to legislate for emergencies belongs in the hands of

Congress, but only Congress itself can prevent power from slipping through its fingers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice

Jackson concurring). For an account of how the President usually prevails, see H.

KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIRS

(1990).

680 27 U.S. (2 Pet.) 253 (1829).

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608 ART. II—EXECUTIVE DEPARTMENT
der a treaty; if the legislature has acted on the construction thus

asserted, it is not in its own courts that this construction is to be

denied. A question like this, respecting the boundaries of nations,

is, as has been truly said, more a political than a legal question,

and in its discussion, the courts of every country must respect the

pronounced will of the legislature.” 681

The doctrine thus clearly stated is further exemplified, with particular reference to presidential action, by Williams v. Suffolk Ins.

Co.682 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 Argentinian 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 of 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.” 683 Thus, the right to determine the boundaries of

the country is a political function,684 as is also the right to determine what country is sovereign of a particular region,685 to determine whether a community is entitled under international law to

be considered a belligerent or an independent state,686 to deter681 27 U.S. at 309.

682 38 U.S. (13 Pet.) 415 (1839).

683 38 U.S. at 420.

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

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

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

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ART. II—EXECUTIVE DEPARTMENT 609
mine whether the other party has duly ratified a treaty,687 to determine who is the de jure or de facto ruler of a country,688 to determine whether a particular person is a duly accredited diplomatic

agent to the United States,689 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty,690 to

determine whether a treaty is in effect or not, although doubtless

an extinguished treaty could be constitutionally renewed by tacit

consent.691

Recent Statements of the Doctrine.—The assumption underlying the refusal of courts to intervene in cases involving conduct

of foreign relations is well stated in Chicago & S. Air Lines v. Waterman S.S. Corp.692 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 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.” 693

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

688 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co.,

246 U.S. 297 (1918).

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

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

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

692 333 U.S. 103 (1948).

693 333 U.S. at 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

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610 ART. II—EXECUTIVE DEPARTMENT
To the same effect are the Court’s holding and opinion in Ludecke

v. Watkins,

694 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.” 695

the same considerations as the political question doctrine is the “act of state” doctrine under which United States courts will not examine the validity of the public

acts of foreign governments done within their own territory, typically, but not always, in disputes arising out of nationalizations. E.g., Underhill v. Hernandez, 168

U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); First

National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Alfred Dunhill

of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976). For succinct analysis of

this amorphous doctrine, see Restatement, Foreign Relations, §§ 443–44. 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, 425 U.S. at

698–706 (plurality opinion), but see id. at 725–28 (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, Pub. 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, §§ 451–63 (including Introductory Note, pp. 390–396).

694 335 U.S. 160 (1948).

695 335 U.S. at 167, 170. Four Justices dissented, by Justice Black, who said:

“The Court . . . holds, as I understand its opinion, that the Attorney General can

deport him whether he is dangerous or not. The effect of this holding is that any

unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the

United States has any power whatever to review, modify, vacate, reverse, or in any

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ART. II—EXECUTIVE DEPARTMENT 611
The Court reviewed the political question doctrine in Baker v.

Carr.

696 There, Justice Brennan noted and elaborated the factors

which go into making a question political and inappropriate for judicial decision.697 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.” 698 However, the Court came

within one vote of creating a broad application of the political question doctrine in foreign relations disputes, at least in the context of

a dispute between Congress and the President with respect to a proper

allocation of constitutional powers.699 In any event, the Court, in

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.

at 174–75. See also Woods v. Cloyd W. 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. at 146–47.

696 369 U.S. 186 (1962).

697 369 U.S. at 217.

698 369 U.S. at 211–12. 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 Ass’n v. American Cetacean

Society, 478 U.S. 221, 229–30 (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).

699 Goldwater v. Carter, 444 U.S. 996, 1002–06 (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).

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612 ART. II—EXECUTIVE DEPARTMENT
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.700

THE PRESIDENT AS LAW ENFORCER

Powers Derived From The “Take Care” 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 agencies; third,

in what relation does he stand to the enforcement of the criminal

laws of the United States? 701

700 “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, 812–13 (1982).

701 In Lujan v. Defenders of Wildlife, 504 U.S. 555, 576–78 (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

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ART. II—EXECUTIVE DEPARTMENT 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.” 702 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.” 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.703 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.704 This case has, however, been virtually overruled,

and at any rate such cases are exceptional.705

The general rule, as stated by the Court, is that when any duty

is cast by law upon the President, it may be exercised by him through

the head of the appropriate department, whose acts, if performed

within the law, thus become the President’s acts.706 Williams v. United

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. at 577.

702 7 Ops. Atty. Gen. 453, 464–65 (1855).

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

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

705 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, 341–42 (1905), both of which in effect repudiate Runkle.

706 The President, in the exercise of his executive power under the Constitution, “speaks and acts through the heads of the several departments in relation to

subjects which appertain to their respective duties.” The heads of the departments

are his authorized assistants in the performance of his executive duties, and their

official acts, promulgated in the regular course of business, are presumptively his

acts. Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 513 (1839). See also United States

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

614 ART. II—EXECUTIVE DEPARTMENT
States 707 involved an act of Congress that prohibited the advance

of public money in any case whatever to disbursing officers of the

United States, except under special direction by the President.708

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.709 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.710

Impoundment of Appropriated Funds

In his Third Annual Message to Congress, President Jefferson

established the first faint outline of what years later became a major controversy. Reporting that $50,000 in funds which Congress had

appropriated for fifteen gunboats on the Mississippi remained

unexpended, the President stated that a “favorable and peaceful turn

of affairs on the Mississippi rendered an immediate execution of the

law unnecessary. . . .” But he was not refusing to expend the money,

only delaying action to obtain improved gunboats; a year later, he

told Congress that the money was being spent and gunboats were

being obtained.711 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 purv. Eliason, 41 U.S. (16 Pet.) 291 (1842); Williams v. United States, 42 U.S. (1 How.)

290, 297 (1843); United States v. Jones, 59 U.S. (18 How.) 92, 95 (1856); The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879);

Wolsey v. Chapman, 101 U.S. 755 (1880).

707 42 U.S. (1 How.) 290 (1843).

708 3 Stat. 723 (1823), now covered in 31 U.S.C. § 3324.

709 42 U.S. (1 How.) at 297–98.

710 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).

711 1 J. Richardson, supra at 348, 360.

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ART. II—EXECUTIVE DEPARTMENT 615
poses 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.712

Impoundment 713 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.714

On the other hand, it was argued that Congress’s 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 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 denied 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’s

power “to make all Laws which shall be necessary and proper for

712 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. at 149 (1974). See generally

L. FISHER, PRESIDENTIAL SPENDING POWER (1975).

713 There is no satisfactory definition of impoundment. Legislation enacted by

Congress uses the phrase “deferral of budget authority” which is defined to include:

“(A) withholding or delaying the obligation or expenditure of budget authority (whether

by establishing reserves or otherwise) provided for projects or activities; or (B) any

other type of Executive action or inaction which effectively precludes the obligation

or expenditure of budget authority, including authority to obligate by contract in

advance of appropriations as specifically authorized by law.” 2 U.S.C. § 682(1).

714 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).

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

616 ART. II—EXECUTIVE DEPARTMENT
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.” 715

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.716 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.717

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.718 Prior to its amendment, this law had permitted the President to “apportion” funds “to provide for contingencies, or to effect savings whenever savings are made possible by or

through changes in requirements, greater efficiency of operations,

or other developments subsequent to the date on which such appro715 Id. at 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, 37 U.S.

(12 Pet.) 524 (1838).

716 Train v. City of New York, 420 U.S. 35 (1975); Train v. Campaign Clean Water, 420 U.S. 136 (1975). See also State Highway Comm’n of Missouri v. Volpe, 479

F.2d 1099 (8th Cir. 1973); Pennsylvania v. Lynn, 501 F.2d 848 (D.C. Cir. 1974) (the

latter case finding statutory discretion not to spend).

717 Congressional Budget and Impoundment Control Act, Pub. L. 93–344, title

X, §§ 1001–1017, 88 Stat. 332 (1974), as amended, 2 U.S.C. §§ 681–88.

718 Originally 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

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’s Power of the Purse, 97 YALE

L. J. 1343, 1370–1377 (1988).

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ART. II—EXECUTIVE DEPARTMENT 617
priation was made available.” President Nixon had relied on this

“other developments” language as authorization to impound, for what

in essence were policy reasons.719 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.” 720

“Policy” impoundments were to be reported to Congress by the

President as permanent rescissions and, perhaps, as temporary deferrals.721 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.722 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.723 With the decision

in INS v. Chadha,

724 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.725 Thus, the entire deferral section was

inoperative. Congress, in 1987, enacted a more restricted authority,

limited to deferrals only for those purposes set out in the AntiDeficiency Act.726

With passage of the Act, the constitutional issues faded into the

background; Presidents regularly reported rescission proposals, and

Congress responded by enacting 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 Con719 L. Fisher, supra at 154–57.

720 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. at 20472–20473 (Senators Ervin and McClellan).

721 §§ 1011(1), 1012, 1013, 88 Stat. 333–34, 2 U.S.C. §§ 628(1), 683, 684.

722 2 U.S.C. § 683.

723 § 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.

724 462 U.S. 919 (1983).

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

726 Pub. L. 100–119, title II, § 206(a), 101 Stat. 785, 2 U.S.C. § 684.

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

618 ART. II—EXECUTIVE DEPARTMENT
gress, and by the Balanced Budget and Emergency Deficit Control

Act of 1985.727 This latter law was designed as a deficit-reduction

forcing mechanism, so that unless President and Congress cooperate each year to reduce the deficit by prescribed amounts, a “sequestration” order would reduce funds down to a mandated figure.728

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

If 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.” 729

But this was said with respect to the office of the Secretary of

State, and when shortly afterward the question arose as to the power

of Congress to regulate the tenure of the Comptroller of the Treasury, Madison assumed a very different attitude, conceding in effect that this office was to be an arm of certain of Congress’s own

powers and should therefore be protected against the removal power.730

And in Marbury v. Madison,

731 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

727 Pub. 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.

728 See Stith, Rewriting the Fiscal Constitution: The Case of Gramm-RudmanHollings, 76 CALIF. L. REV. 593 (1988).

729 1 ANNALS OF CONG. 495, 499 (1789).

730 Id. at 611–612.

731 5 U.S. (1 Cr.) 137 (1803).

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ART. II—EXECUTIVE DEPARTMENT 619
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.” 732

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.733 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’s 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,

1834,734 defending his removal of Duane as Secretary of the Treasury, because of the latter’s refusal to remove the deposits from the

Bank of the United States. Here it is asserted “that the entire executive power is vested in the President;” that the power to remove

those officers who are to aid him in the execution of the laws is an

incident of that power; that the Secretary of the Treasury was such

an officer; that the custody of the public property and money was

an executive function exercised through the Secretary of the Treasury and his subordinates; that in the performance of these duties

the Secretary was subject to the supervision and control of the President; and finally that the act establishing the Bank of the United

States “did not, as it could not change the relation between the President and Secretary—did not release the former from his obligation

to see the law faithfully executed nor the latter from the President’s supervision and control.” 735 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.

732 5 U.S. (1 Cr.) at 165–66.

733 1 Ops. Atty. Gen. 624 (1823).

734 3 J. Richardson, supra at 1288.

735 Id. at 1304.

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620 ART. II—EXECUTIVE DEPARTMENT
Congressional Power Versus Presidential Duty to the Law.—

The Court’s 1838 decision in Kendall v. United States ex rel. Stokes,

736

shed more light on congressional power to mandate actions by executive branch officials. The United States owed 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. Although 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.” 737 In short, the Court recognized the underlying question of

the case to be whether the President’s duty to “take Care that the

Laws be faithfully executed” made it constitutionally impossible for

Congress ever to entrust the construction of its statutes to anybody

but the President, and it answered this in the negative.

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 Myers, on the one hand, and

736 37 U.S. (12 Pet.) 524 (1838).

737 37 U.S. (12 Pet.) at 610.

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

ART. II—EXECUTIVE DEPARTMENT 621
its decision in Morrison, on the other.738 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

to remove 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 under Article II to take care that the laws be faithfully executed.739

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.740 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.741 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.742

The “bright-line” rule previously observed no longer holds. Now,

Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the

fuzzy lines set by the Court.

Power of the President to Guide Enforcement of the Penal Law.—This matter also came to a head in “the reign of Andrew Jackson,” preceding, and indeed foreshadowing, the Duane episode by some months. “At that epoch,” Wyman relates in his Principles

of Administrative Law, “the first amendment of the doctrine of cen738 Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654

(1988).

739 Morrison v. Olson, 487 U.S. at 689–90.

740 487 U.S. at 690–91.

741 487 U.S. at 691.

742 487 U.S. at 691–92.

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622 ART. II—EXECUTIVE DEPARTMENT
tralism in its entirety was set forth in an obscure opinion upon an

unimportant matter—The Jewels of the Princess of Orange, 2 Opin.

482 (1831). These jewels . . . were stolen from the Princess by one

Polari and were seized by the officers of the United States Customs

in the hands of the thief. Representations were made to the President of the United States by the Minister of the Netherlands of the

facts in the matter, which were followed by a request for return of

the jewels. In the meantime the District Attorney was prosecuting

condemnation proceedings in behalf of the United States which he

showed no disposition to abandon. The President felt himself in a

dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and direct

whether to proceed or not. The opinion was written by Taney, then

Attorney General; it is full of pertinent illustrations as to the necessity in an administration of full power in the chief executive as the

concomitant of his full responsibility. It concludes: If it should be

said that, the District Attorney having the power to discontinue the

prosecution, there is no necessity for inferring a right in the President to direct him to exercise it—I answer that the direction of the

President is not required to communicate any new authority to the

District Attorney, but to direct him in the execution of a power he

is admitted to possess. The most valuable and proper measure may

often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the

President’s order; and if he did refuse, the prosecution, while he

remained in office, would still go on; because the President himself

could give no order to the court or to the clerk to make any particular entry. He could only act through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at

his pleasure. And if that officer still continues a prosecution which

the President is satisfied ought not to continue, the removal of the

disobedient officer and the substitution of one more worthy in his

place would enable the President through him faithfully to execute

the law. And it is for this among other reasons that the power of

removing the District Attorney resides in the President.” 743

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

743 B. WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE RELATIONS OF

PUBLIC OFFICERS 231–32 (1903).

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ART. II—EXECUTIVE DEPARTMENT 623
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,744

but he sometimes makes law in a more special sense. In the famous Neagle case,745 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

section 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?” 746 Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption that is borne out by numerous precedents. And, in United States

v. Midwest Oil Co.,

747 the Court ruled that the President had, by

dint of repeated assertion of it from an early date, acquired the right

to withdraw, via the Land Department, public lands, both mineral

and non-mineral, 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.”

744 United States v. Eliason, 41 U.S. (16 Pet.) 291, 301–02 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180–81 (1886). For

an 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, 301–16 (1979).

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

746 135 U.S. at 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.

747 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).

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

624 ART. II—EXECUTIVE DEPARTMENT
“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

. . . .” 748

These quoted provisions of the United States Code consolidate

a course of legislation that began at the time of the Whiskey Rebellion of 1792.749 In Martin v. Mott,

750 which arose out of the War of

1812, the Court held that the authority to decide whether the exigency had arisen belonged exclusively to the President.751 Even before that time, Jefferson had, in 1808, in the course of his efforts to

enforce the Embargo Acts, issued a proclamation ordering “all officers having authority, civil or military, who shall be found in the

vicinity” of an unruly combination, to aid and assist “by all means

in their power, by force of arms or otherwise” the suppression of

such combination.752 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,753 a doctrine that Pierce himself improved upon

748 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 permit the use of troops to

enforce decrees of federal courts, because 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 interpretation of the Fourteenth Amendment enunciated by this Court

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 on

the States . . . .”

749 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.

750 25 U.S. (12 Wheat.) 19 (1827).

751 25 U.S. at 31–32.

752 Wilson, Federal Aid in Domestic Disturbances, S. DOC. NO. 209, 57th Congress, 2d Sess. (1907), 51.

753 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

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

ART. II—EXECUTIVE DEPARTMENT 625
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.754 The provisions above extracted from the United States Code ratified this conception with

regard to 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,

755 to which

the Debs case 756 may be regarded as an addendum. Moyer, a labor

leader, sued Peabody for having ordered his arrest during a labor

dispute that had occurred while Peabody was governor of Colorado.

Speaking for a unanimous Court (with one Justice absent), Justice

Holmes said: “Of course the plaintiff’s position is that he has been

deprived of his liberty without due process of law. But it is familiar

that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. . . . The facts that we are to assume are that a state of insurrection existed and that the Governor, without sufficient reason but

in good faith, in the course of putting the insurrection down held

the plaintiff until he thought that he safely could release him.”

“. . . 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 punpurpose 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 196 n.21 (1941).

754 12 Stat. (app.) 1258.

755 212 U.S. 78 (1909).

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

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626 ART. II—EXECUTIVE DEPARTMENT
ishment, 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 that he had not

reasonable 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.” 757

The Debs Case.—The Debs case of 1895 arose out of a railway

strike which had caused the President to dispatch troops to Chicago the previous year. Coincidentally with this move, the United

States district attorney stationed there, acting upon orders from Washington, obtained an injunction from the United States circuit court

forbidding the strike because of its interference with the mails and

with interstate commerce. The question before the Supreme Court

was whether this injunction, for violation of which Debs had been

jailed for contempt of court, had been granted with jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the ground that the government was entitled thus to protect its property in the mails, and

on a much broader ground which is stated in the following passage

of Justice Brewer’s opinion for the Court: “Every government, entrusted, by the very terms of its being, with powers and duties to

be exercised and discharged for the general welfare, has a right to

apply to its own courts for any proper assistance in the exercise of

the one and the discharge of the other. . . . While it is not the province of the government to interfere in any mere matter of private

controversy between individuals, or to use its granted powers to enforce the rights of one against another, yet, whenever the wrongs

complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care

of the Nation and concerning which the Nation owes the duty to

all the citizens of securing to them their common rights, then the

mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it

757 212 U.S. at 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.

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

ART. II—EXECUTIVE DEPARTMENT 627
from taking measures therein to fully discharge those constitutional duties.” 758

Present Status of the Debs Case.—Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the NorrisLaGuardia Act 759 placed substantial restrictions on the power of federal courts to issue injunctions in such situations. Though, in United

States v. UMW,

760 the Court held that the Norris-LaGuardia Act

did not apply where the government brought suit as operator of mines,

language in the opinion appeared to go a good way toward repudiating the present viability of Debs, though more in terms of congressional limitations than of revised judicial opinion.761 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.762

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,

763 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 gov758 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 U.S. (2 Dall.) 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.

759 47 Stat. 170 (1932), 29 U.S.C. §§ 101–115.

760 330 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. at 272.

761 Thus, 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.” 330 U.S. at 278.

762 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.

763 403 U.S. 713 (1971).

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628 ART. II—EXECUTIVE DEPARTMENT
ernmental documents. Only one Justice denied expressly that power

was lacking altogether to sue.764

The President’s Duty in Cases of Domestic Violence in the

States

See Article IV, § 4, Guarantee of Republican Form of Government, and discussion of “Martial Law and Domestic Disorder” under Article II, § 2, cl. 1.

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 deem it necessary in securing obedience to his proclamation of neutrality.” 765

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.766 Upon his return to the United

States, Hollins was sued in a federal court by Durand for the value

764 On Justice Marshall’s view on the lack of authorization, see 403 U.S. at 740–48

(concurring opinion); for the dissenters on this issue, see id. at 752, 755–59 (Justice

Harlan, with whom Chief Justice Burger and Justice Blackmun joined); see also id.

at 727, 729–30 (Justice Stewart, joined by Justice White, concurring).

765 30 Ops. Atty. Gen. 291 (1914).

766 7 J. MOORE, DIGEST OF INTERNATIONAL LAW 346–54 (1906).

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

ART. II—EXECUTIVE DEPARTMENT 629
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.767 “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 unfrequently, 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.” 768

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.769 The duty

could be said to grow out of the inherent powers of the Chief Executive 770 or perhaps out of his obligation to “take Care that the Laws

be faithfully executed.” 771 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

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

768 8 Fed. Cas. at 112.

769 See UNITED STATES SOLICITOR OF THE DEPARTMENT OF STATE, RIGHT TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (3d rev. ed. 1934); M. OFFUTT, THE PROTECTION OF CITIZENS ABROAD BY THE ARMED FORCES OF THE UNITED STATES (1928).

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

771 M. Offutt, supra at 5.

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630 ART. II—EXECUTIVE DEPARTMENT
interests,772 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.773 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.774 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.775 And when the Supreme Court

in 1964 applied the “act of state” doctrine so as not to examine the

validity of a taking of property by a foreign government recognized

by the United States but to defer to the decision of the foreign government,776 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.777

772 E. Corwin, supra at 198–201.

773 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).

774 62 Stat. 143 (1948), as amended, 22 U.S.C. § 2191 et seq. See also 22 U.S.C.

§ 1621 et seq.

775 76 Stat. 260 (1962), 22 U.S.C. § 2370(e)(1).

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

777 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), aff’d 383 F.2d

166 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968).

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

ART. II—EXECUTIVE DEPARTMENT 631
PRESIDENTIAL ACTION IN THE DOMAIN OF

CONGRESS: THE STEEL SEIZURE CASE

To avert a nationwide strike of steel workers that 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.778 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’s 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.779 The steel companies sued,

a federal district court enjoined the seizure,780 and the Supreme Court

brought the case up prior to decision by the court of appeals.781 Sixto-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.782

The holding and the multiple opinions represent a setback for the

adherents of “inherent” executive powers,783 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

778 E.O. 10340, 17 Fed. Reg. 3139 (1952).

779 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).

780 103 F. Supp. 569 (D.D.C. 1952).

781 The court of appeals had stayed the district court’s injunction pending appeal. 197 F.2d 582 (D.C. Cir. 1952). The Supreme Court decision bringing the action

up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented.

782 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 (1977).

783 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 56–65 (1958) (argument in district court).

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632 ART. II—EXECUTIVE DEPARTMENT
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.” 784

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, in a concurring opinion, would not concur, and in fact

they 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.

785 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.786 The Chief Justice wrote: “It is by no means clear, that the President of the United

States, whose high duty it is to ‘take care that the laws be faithfully executed,’ and who is commander-in-chief of the armies and

navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United

States, to seize and send into port for adjudication, American vessels which were forfeited, by being engaged in this illicit commerce. But when it is observed, that [an act of Congress] . . . gives

a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound, or sailing to, a French port, the

legislature seems to have prescribed that the manner in which this

784 343 U.S. at 585–89.

785 6 U.S. (2 Cr.) 170 (1804).

786 1 Stat. 613 (1799).

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

ART. II—EXECUTIVE DEPARTMENT 633
law shall be carried into execution, was to exclude a seizure of any

vessel not bound to a French port.” 787

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.788 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.789 Repeatedly, acts of the President

have been in areas in which Congress could act as well.790

Justice Frankfurter’s concurring opinion 791 listed 18 statutory

authorizations for seizures of industrial property, all but one of which

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 presidential orders as being done pursuant to “the Constitution and laws” generally—and eleven of which occurred in World

War II.792 The first such seizure in this period had been justified

by then Attorney General Jackson as being based upon an “aggregate” of presidential powers stemming from his duty to see the laws

faithfully executed, his commander-in-chiefship, and his general executive powers.793 Chief Justice Vinson’s dissent dwelt liberally upon

this opinion,794 which reliance drew a disclaimer from Justice Jackson, concurring.795

787 Little v. Barreme, 6 U.S. (2 Cr.) 170, 177–78 (1804).

788 10 ANNALS OF CONG. 596, 613–14 (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.

789 Cf. E. CORWIN, THE PRESIDENT’S CONTROL OF FOREIGN RELATIONS ch. 1 (1916).

790 E. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM.

L. REV. 53, 58–59 (1953).

791 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952).

792 343 U.S. at 611–13, 620.

793 89 CONG. REC. 3992 (1943).

794 343 U.S. at 695–96 (dissenting opinion).

795 Thus, Justice Jackson noted of the earlier seizure, that “[i]ts superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it

cannot be regarded as even a precedent, much less an authority for the present seizure.” 343 U.S. at 648–49 (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. at 634.

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634 ART. II—EXECUTIVE DEPARTMENT
The dissent was also fortunate in that the steel companies’ chief

counsel, John W. Davis, a former Solicitor General of the United

States, had filed a brief in 1914 in defense of Presidential action,

which had taken precisely the view that the dissent now presented.796 “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 power may enter and dominate

whenever it chooses. This situation results from the fact that the

President is the active agent, not of Congress, but of the Nation.

As such he performs the duties which the Constitution lays upon

him immediately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the

United States, deriving all his powers from them and responsible

directly to them. In no sense is he the agent of Congress. He obeys

and executes the laws of Congress, not because Congress is enthroned in authority over him, but 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

796 Brief for the United States at 11, 75–77, United States v. Midwest Oil Co.,

236 U.S. 459 (1915).

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ART. II—EXECUTIVE DEPARTMENT 635
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.” 797

Power Denied by Congress

Justice Black’s opinion of the Court in Youngstown Sheet and

Tube Co. v. Sawyer notes that Congress had refused to give the President seizure authority and had authorized other actions, which had

not been taken.798 This statement led him to conclude merely 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.” 799 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.” 800

Justice Jackson attempted a schematic representation of presidential powers, which “are not fixed but fluctuate, depending upon

their disjunction or conjunction with those of Congress.” Thus, there

are essentially three possibilities. “1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his

own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there

is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When

the President takes measures incompatible with the expressed or

implied will of Congress, his power is at its lowest ebb, for then he

can rely only upon his own constitutional powers minus any consti797 Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 689–91

(1952) (dissenting opinion).

798 343 U.S. at 585–87.

799 343 U.S. at 597.

800 343 U.S. at 602.

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636 ART. II—EXECUTIVE DEPARTMENT
tutional 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.” 801 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 strikebound industries is within his domain and beyond control by

Congress.” 802 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.803 Justice Clark relied on Little v. Barreme,

804

in that Congress had laid down specific procedures for the President to follow, which he had declined to follow.805

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, as it is doubtful that the opinion lays down a

constitutional rule. Whatever the implications of the opinions of the

individual Justices for the doctrine of “inherent” presidential powers—

and they are significant—the implications for the area here under

consideration are cloudy and have remained so from the time of the

decision.806

801 343 U.S. at 635–38. In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Justice Kennedy, in a concurring opinion joined by three other Justices, endorsed “the

three-part scheme used by Justice Jackson” as “[t]he proper framework for assessing whether Executive actions are authorized.” The Court in this case found “that

the military commission convened [by the President, in Guantanamo Bay, Cuba] to

try Hamdan lacks power to proceed because its structure and procedures violate [the

Uniform Code of Military Justice].” Id. at 567. Thus, as Justice Kennedy noted, “the

President has acted in a field with a history of congressional participation and regulation.” Id. at 638.

802 343 U.S. at 639, 640.

803 343 U.S. at 657.

804 6 U.S. (2 Cr.) 170 (1804).

805 343 U.S. at 662, 663.

806 In Dames & Moore v. Regan, 453 U.S. 654, 668–69 (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. at

661–62, quoting Justice Jackson’s Youngstown concurrence, “which both parties agree

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ART. II—EXECUTIVE DEPARTMENT 637
PRESIDENTIAL IMMUNITY FROM JUDICIAL

DIRECTION

In Mississippi v. Johnson,

807 in 1867, the Court placed the President 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.808 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.809 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

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 rebrings together as much combination of analysis and common sense as there is in

this area.”

807 71 U.S. (4 Wall.) 475 (1867).

808 The Court declined to express an opinion “whether, in any case, the President of the United States may be required, by the process of this court, to perform a

purely ministerial act under a positive law, or may be held amenable, in any case,

otherwise than by impeachment for crime.” 71 U.S. at 498. See Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) (Justice Scalia concurring). In NTEU 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.

809 Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484–85 (1867) (argument of

counsel).

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638 ART. II—EXECUTIVE DEPARTMENT
strained 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?” 810

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case,811

it held the President amenable to subpoena to produce evidence for

use in a criminal case without dealing, except obliquely, with its

prior opinion. The President’s counsel had argued the President was

immune to judicial process, claiming “that the independence of the

Executive Branch within its own sphere . . . insulates a President

from a judicial subpoena in an ongoing criminal prosecution, and

thereby protects confidential Presidential communications.” 812 However, the Court held, “neither the doctrine of separation of powers,

nor the need for confidentiality of high-level communications, with810 71 U.S. at 499, 500–01. 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, 73 U.S. (6

Wall.) 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, 37 U.S.

(12 Pet.) 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, 505 U.S. 788 (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. See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).

811 United States v. Nixon, 418 U.S. 683 (1974).

812 418 U.S. at 706.

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ART. II—EXECUTIVE DEPARTMENT 639
out more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” 813

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.” 814

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.815 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.816

Assertion of the same argument by Vice President Agnew was controverted by the government, through the Solicitor General, but, as

to the President, it was argued that for a number of constitutional

and practical reasons he was not subject to ordinary criminal process.817

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.818 The Court’s close

decision was premised on the President’s “unique position in the

813 Id.

814 418 U.S. at 706–07. 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), aff’d 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).

815 The 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

500 (rev. ed. 1937), and Hamilton in THE FEDERALIST, Nos. 65, 69 (J. Cooke ed. 1961),

442, 463, asserted that criminal trial would follow a successful impeachment.

816 Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95–

122; Nixon v. Sirica, 487 F.2d 700, 756–58 (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, 418 U.S. at 687

n.2.

817 Memorandum for the United States, Application of Spiro T. Agnew, Civil No.

73–965 (D.Md., filed October 5, 1973).

818 Nixon v. Fitzgerald, 457 U.S. 731 (1982).

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640 ART. II—EXECUTIVE DEPARTMENT
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.” 819 Although the Constitution expressly afforded Members of Congress immunity in matters arising from “speech or debate,” and although 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.” 820

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,821 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,” 822 and diversion of his

energies by concerns with private lawsuits would “raise unique risks

to the effective functioning of government.” 823 Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are

important enough to require judicial action; “merely private suit[s]

for damages based on a President’s official acts” do not serve this

“broad public interest” necessitating the courts to act.824 Finally, qualified immunity would not adequately protect the President, because

judicial inquiry into a functional analysis of his actions would bring

with it the evil immunity was to prevent; absolute immunity was

required.825

819 457 U.S. at 748.

820 457 U.S. at 749.

821 457 U.S. at 750–52 n.31.

822 457 U.S. at 750.

823 457 U.S. at 751.

824 457 U.S. at 754.

825 457 U.S. at 755–57. 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. at 748–49 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. at 763–64 n.7 (concurring opinion), and the dissenters noted their agreement on this point with the

Chief Justice. Id. at 770 & n.4.

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ART. II—EXECUTIVE DEPARTMENT 641
Unofficial Conduct

In Clinton v. Jones,

826 the Court, in a case of first impression,

held that the President did not have qualified immunity from civil

suit for conduct alleged to have taken place prior to his election,

and therefore denied the President’s request to delay both the trial

and discovery. The Court held that its precedents affording the President immunity from suit for his official conduct—primarily on the

basis that he should be enabled to perform his duties effectively

without fear that a particular decision might give rise to personal

liability—were inapplicable in this kind of case. Moreover, the

separation-of-powers doctrine did not require a stay of all private

actions against the President. Separation of powers is preserved by

guarding against the encroachment or aggrandizement of one of the

coequal branches of the government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of

another branch. No decision by a trial court could curtail the scope

of the President’s powers. The trial court, the Supreme Court observed, had sufficient powers to accommodate the President’s schedule and his workload, so as not to impede the President’s performance of his duties. Finally, the Court stated its belief that allowing

such suits to proceed would not generate a large volume of politically motivated harassing and frivolous litigation. Congress has the

power, the Court advised, if it should think necessary to legislate,

to afford the President protection.827

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 828 or to compel by writ of mandamus the performance of a duty definitely required by law.829 Such suits are usu826 520 U.S. 681 (1997).

827 The Court observed at one point that it doubted that defending the suit would

much preoccupy the President, that his time and energy would not be much taken

up by it. “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.” 520 U.S. at 702.

828 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).

829 E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of

State to compel delivery of commissions of office); Kendall v. United States ex rel.

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ally brought in the United States District Court for the District of

Columbia.830 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,831 although immunity exists for anything, even malicious wrongdoing, done in the course of his duties.832

Different rules prevail when such an official is sued for a “constitutional tort” for wrongs allegedly in violation of our basic charter,833 although the Court has hinted that in some “sensitive” areas

officials acting in the “outer perimeter” of their duties may be acStokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.)

497 (1840) (suit to compel Secretary of Navy to pay a pension).

830 This was originally on the theory that the Supreme Court of the District of

Columbia had inherited, via the common law of Maryland, the jurisdiction of the

King’s Bench “over inferior jurisdictions and officers.” Kendall v. United States ex

rel. Stokes, 37 U.S. (12 Pet.) 524, 614, 620–21 (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.

831 E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204

(1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases (Poindexter

v. Greenhow), 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).

832 Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Matteo, 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). Following the Westfall decision, Congress enacted the Federal

Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act),

which authorized the Attorney General to certify that an employee was acting within

the scope of his office or employment at the time of the incident out of which a suit

arose; upon certification, the employee is dismissed from the action, and the United

States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which means that sometimes the action must be dismissed against the government because the FTCA has not waived sovereign immunity. United States v. Smith,

499 U.S. 160 (1991) (Westfall Act bars suit against federal employee even when an

exception in the FTCA bars suit against the government). Cognizant of the temptation of the government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that the Attorney General’s

certification is subject to judicial review.

833 An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a

Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute

immunity, in favor of the qualified immunity previously accorded high state officials

under 42 U.S.C. § 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.

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ART. II—EXECUTIVE DEPARTMENT 643
corded an absolute immunity from liability.834 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.835

COMMISSIONING OFFICERS

The power to commission officers, as applied in practice, does

not mean that the President 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, and that he may do so at his discretion. Under the doctrine of Marbury v. Madison, the sealing and delivery of the commission is a purely ministerial act which has been lodged by statute

with the Secretary of State, and which may be compelled by mandamus unless the appointee has been in the meantime validly removed.836 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.837 This is probably the correct

doctrine.838

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

The impeachment provisions of the Constitution 839 were derived from English practice, but there are important differences. In

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).

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

835 See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see Pub. L. 94–

574, 90 Stat. 2721 (1976), and Pub. 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).

836 Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157–58, 173 (1803). The doctrine

applies to presidential appointments regardless of whether Senate confirmation is

required.

837 12 Ops. Atty. Gen. 306 (1867).

838 For various reasons, Marbury got neither commission nor office. The case

assumes, in fact, the necessity of possession of his commission by the appointee.

839 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

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England, impeachment had a far broader scope. While impeachment was a device to remove from office one who abused his office

or misbehaved but who was protected by the Crown, it could be

used against anyone—office holder or not—and was penal in nature, with possible penalties of fines, imprisonment, or even death.840

By contrast, the American impeachment process is remedial, not penal: it is limited to office holders, and judgments are limited to no

more than removal from office and disqualification to hold future

office.

Impeachment was a device that figured from the first in the plans

proposed to the Convention; discussion addressed such questions as

what body was to try impeachments and what grounds were to be

stated as warranting impeachment.841 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,842 but Madison and others contended that this position was

destructive of sound governmental practice,843 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 behavof 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 following conviction upon 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.

Although the word “impeachment” is sometimes used to refer to the process by

which any member of the House may “impeach” an officer of the United States under a question of constitutional privilege (see 3 HINDS’ PRECEDENTS OF THE HOUSE OF

REPRESENTATIVES OF THE UNITED STATES §§ 2398 (impeachment of President John Tyler

by a member) and 2469 (impeachment of Judge John Swayne by a member) (1907),

the word as used in Article II, § 4 refers to impeachment by vote of the House, the

consequence of which is that the Senate may then try the impeached officer.

840 1 W. HOLDSWORTH, HISTORY OF ENGLISH COURTS 379–85 (7th ed. 1956); Clarke,

The Origin of Impeachment, in OXFORD ESSAYS IN MEDIEVAL HISTORY, PRESENTED TO HERBERT EDWARD SALTER 164 (1934); Alex Simpson, Jr., Federal Impeachments, 64 U. PA.

L. REV. 651 (1916).

841 Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV.at 653–67 (1916).

842 1 ANNALS OF CONG. 457, 473, 536 (1789).

843 Id. at 375, 480, 496–97, 562.

Sec. 4—Impeachment

ART. II—EXECUTIVE DEPARTMENT 645
ior of the public officers.” 844 While the language of section 4 covers

any “civil officer” in the executive branch,845 and covers judges as

well,846 it excludes military officers,847 and the precedent was early

established that it does not apply to members of Congress.848

Judges.—Article III, section 1 specifically provides judges with

“good behavior” tenure, but the Constitution nowhere expressly vests

the power to remove upon bad behavior, and it has been assumed

that judges are made subject to the impeachment power through

being labeled “civil officers.” 849 The records in the Convention make

this a plausible though not necessary interpretation.850 And, in fact,

844 Id. at 372.

845 The term “civil officers of the United States” is not defined in the Constitution, although there may be a parallel with “officers of the United States” under the

Appointments Clause, Art. II, § 2, cl. 2, and it may be assumed that not all executive branch employees are “officers.” For precedents relating to the definition, see 3

HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 1785, 2022,

2486, 2493, and 2515 (1907). See also Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 KY. L. REV. 707, 715–18 (1988).

846 See the following section on Judges.

847 3 W. Willoughby, supra at 1448.

848 This point was established by a vote of the Senate holding a plea to this

effect good in the impeachment trial of Senator William Blount in 1797. 3 HINDS’

PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2294–2318 (1907);

F. WHARTON, STATE TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF WASHINGTON AND ADAMS 200–321 (1849); BUCKNER F. MELTON, JR., THE FIRST IMPEACHMENT: THE

CONSTITUTION’S FRAMERS AND THE CASE OF SENATOR WILLIAM BLOUNT (1998).

849 See NATIONAL COMM’N ON JUDICIAL DISCIPLINE & REMOVAL, REPORT OF THE NATIONAL

COMM’N ON JUDICIAL DISCIPLINE & REMOVAL 9–11 (1993). The Commission was charged

by Congress 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. Pub. L.

101–650, 104 Stat. 5124. The report and the research papers produced for it contain

a wealth of information on the subject.

850 For practically the entire Convention, the plans presented and adopted provided that the Supreme Court was to try impeachments. 1 M. Farrand, supra, at

22, 244, 223–24, 231; 2 id. at 186. On August 27, it was successfully moved that the

provision in the draft of the Committee on Detail giving the Supreme Court jurisdiction of trials of impeachment be postponed, id. at 430, 431, which was one of the

issues committed to the Committee of Eleven. Id. at 481. That Committee reported

the provision giving the Senate power to try all impeachments, id. at 497, which

the Convention thereafter approved. Id. at 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. at 337, and it returned a provision making Supreme Court Justices triable by the Senate on impeachment by the

House. Id. at 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. at 428–29.

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. at 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. at 552, they were

not made removable.

Sec. 4—Impeachment

646 ART. II—EXECUTIVE DEPARTMENT
eleven of the fifteen impeachments reaching trial in the Senate have

been directed at federal judges, and all seven of those convicted in

impeachment trials have been judges.851 So settled apparently is

this interpretation that the major arguments, scholarly and political, have concerned the question of whether judges, as well as others, are subject to impeachment for conduct that does not constitute an indictable offense, and the question of whether impeachment

is the exclusive removal device for judges.852

851 The following judges faced impeachment trials in the Senate: John Pickering, District Judge, 1803 (convicted), 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES §§ 2319–2341 (1907); Justice Samuel Chase, 1804 (acquitted), id. at §§ 2342–2363; James H. Peck, District Judge, 1830 (acquitted), id. at 2364–

2384; West H. Humphreys, District Judge, 1862 (convicted), id. at §§ 2385–2397; Charles

Swayne, District Judge, 1904 (acquitted), id. at §§ 2469–2485; Robert W. Archbald,

Judge of Commerce Court, 1912 (convicted), 6 CANNON’S PRECEDENTS OF THE HOUSE OF

REPRESENTATIVES OF THE UNITED STATES §§ 498–512 (1936); Harold Louderback, District

Judge, 1932 (acquitted), id. at §§ 513–524; Halsted L. Ritter, District Judge, 1936

(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). In addition, impeachment proceedings against district judge George W. English were dismissed in 1926 following his resignation six

days prior to the scheduled start of his Senate trial. 68 CONG. REC. 344, 348 (1926).

See also ten Broek, Partisan Politics and Federal Judgeship Impeachments Since

1903, 23 MINN. L. REV. 185, 194–96 (1939). The others who have faced impeachment

trials in the Senate are Senator William Blount (acquitted); Secretary of War William Belknap (acquitted); President Andrew Johnson (acquitted); and President William J. Clinton (acquitted). For summary and discussion of the earlier cases, see

CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS AND MATERIALS (A. Boyan ed., 1976);

and Paul S. Fenton, The Scope of the Impeachment Power, 65 NW. U. L. REV. 719

(1970) (appendix), reprinted in Staff of the House Committee on the Judiciary, 105th

Cong., Impeachment: Selected Materials 1818 (Comm. Print. 1998).

852 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 GEO. WASH. 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, Pub. L. 96–458, 94 Stat. 2035, 28 U.S.C. § 1 note, 331, 332, 372,

604, provide for disciplinary powers over federal judges, but it specifically denied

any removal power. The National Commission, supra at 17–26, found impeachment

to be the exclusive means of removal and recommended against adoption of an alternative. Congress repealed 28 U.S.C. § 372 in the Judicial Improvements Act of 2002,

Sec. 4—Impeachment

ART. II—EXECUTIVE DEPARTMENT 647
Judgment—Removal and Disqualification

Article II, section 4 provides that officers impeached and convicted “shall be removed from office”; Article I, section 3, clause 7

provides further that “judgment in cases of impeachment shall not

extend further than to removal from office, and disqualification to

hold and enjoy any office of honor, trust or profit under the United

States.” These restrictions on judgment, both of which relate to capacity to hold public office, emphasize the non-penal nature of impeachment, and help to distinguish American impeachment from the

open-ended English practice under which criminal penalties could

be imposed.853

The plain language of section 4 seems to require removal from

office upon conviction, and in fact the Senate has removed those

persons whom it has convicted. In the 1936 trial of Judge Ritter,

the Senate determined that removal is automatic upon conviction,

and does not require a separate vote.854 This practice has continued. Because conviction requires a two-thirds vote, this means that

removal can occur only as a result of a two-thirds vote. Unlike removal, disqualification from office is a discretionary judgment, and

there is no explicit constitutional linkage to the two-thirds vote on

conviction. Although an argument can be made that disqualification should nonetheless require a two-thirds vote,855 the Senate has

determined that disqualification may be accomplished by a simple

majority vote.856

Pub. L. 107–273 and created a new chapter (28 U.S.C. §§ 351–64) dealing with judicial discipline short of removal for Article III judges, and authorizing discipline including removal for magistrate judges. The issue was 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); 398 U.S. 74 (1970), except by Justices Black and Douglas in dissent, who argued that impeachment was

the exclusive power.

853 See discussion supra of the differences between English and American impeachment.

854 3 DESCHLER’S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES ch. 14,

§ 13.9.

855 See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL

AND HISTORICAL ANALYSIS 77–79 (2d ed. 2000).

856 The Senate imposed disqualification twice, on Judges Humphreys and Archbald.

In the Humphreys trial the Senate determined that the issues of removal and disqualification are divisible, 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2397

(1907), and in the Archbald trial the Senate imposed judgment of disqualification by

vote of 39 to 35. 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 512 (1936).

During the 1936 trial of Judge Ritter, a parliamentary inquiry as to whether a twothirds vote or a simple majority vote is required for disqualification was answered

by reference to the simple majority vote in the Archbald trial. 3 DESCHLER’S PRECEDENTS ch. 14, § 13.10. The Senate then rejected disqualification of Judge Ritter by

vote of 76–0. 80 CONG. REC. 5607 (1936).

Sec. 4—Impeachment

648 ART. II—EXECUTIVE DEPARTMENT
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. On June 2, 1787, the framers

adopted a provision that the executive should “be removable on impeachment & conviction of mal-practice or neglect of duty.” 857 The

Committee of Detail reported as grounds “Treason (or) Bribery or

Corruption.” 858 And the Committee of Eleven reduced the phrase

to “Treason, or bribery.” 859 On September 8, Mason objected to this

limitation, observing that the term did not encompass all the conduct that 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 &

misdemeanors,” which was adopted without further recorded debate.860

The phrase “high crimes and misdemeanors” in the context of

impeachments has an ancient English history, first turning up in

the impeachment of the Earl of Suffolk in 1388.861 Treason is defined in the Constitution.862 Bribery is not, but it had a clear common law meaning and is now well covered by statute.863 “High crimes

and misdemeanors,” however, is an undefined and indefinite phrase,

which, in England, had comprehended conduct not constituting indictable offenses.864 Use of the word “other” to link “high crimes

and misdemeanors” with “treason” and “bribery” is arguably indicative of the types and seriousness of conduct encompassed by “high

crimes and misdemeanors.” Similarly, the word “high” apparently

carried with it a restrictive meaning.865

857 1 M. Farrand, supra, at 88.

858 2 M. Farrand at 172, 186.

859 Id. at 499.

860 Id. at 550.

861 1 T. HOWELL, STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES

AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT TIMES 90, 91 (1809); A. SIMPSON,

TREATISE ON FEDERAL IMPEACHMENTS 86 (1916).

862 Article III, § 3.

863 The use of a technical term known in the common law would require resort

to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.)

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.

864 Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. CAL. L. REV.

395, 400–415 (1971).

865 The extradition provision reported by the Committee on Detail had provided

for the delivering up of persons charged with “Treason[,] Felony or high Misdemeanors.” 2 M. Farrand, supra, at 174. But the phrase “high Misdemeanors” was reSec. 4—Impeachment

ART. II—EXECUTIVE DEPARTMENT 649
Debate prior to adoption of the phrase 866 and comments thereafter in the ratifying conventions 867 were to the effect that the President (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’s “removal” debate, Madison maintained that the wanton dismissal of

meritorious officers would be an act of maladministration which would

render the President subject to impeachment.868 Other comments,

especially in the ratifying conventions, tend toward a limitation of

the term to criminal, perhaps gross criminal, behavior.869 The scope

of the power has been the subject of continuing debate.870

The Chase Impeachment

The issue of the scope of impeachable offenses was early joined

as a consequence of the Jefferson Administration’s efforts to rid itself of some of the Federalist judges who were propagandizing the

country through grand jury charges and other means. The theory

of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. “The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without

limitation to the Senate. . . . A trial and removal of a judge upon

impeachment need not imply any criminality or corruption in him

. . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry

them into effect you will work the destruction of the nation. We want

your offices, for the purpose of giving them to men who will fill them

placed with “other crimes” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id. at 443.

866 See id. at 64–69, 550–51.

867 E.g., 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE

CONSTITUTION 341, 498, 500, 528 (1836) (Madison); 4 id. at 276, 281 ©. C. Pinckney:

Rutledge): 3 id. at 516 (Corbin): 4 id. at 263 (Pendleton). Cf. THE FEDERALIST, No. 65

(J. Cooke ed. 1961), 439–45 (Hamilton).

868 1 ANNALS OF CONG. 372–73 (1789).

869 4 J. Elliot, supra at 126 (Iredell); 2 id. at 478 (Wilson). For a good account of

the debate at the Constitutional Convention and in the ratifying conventions, see

Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 676–95 (1916)

870 See generally CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK (1974); RAOUL BERGER,

IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973); MICHAEL J. GERHARDT, THE FEDERAL

IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); PETER CHARLES

HOFFER AND N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805 (1984); JOHN R. LABOVITZ,

PRESIDENTIAL IMPEACHMENT (1978); 3 DESCHLER’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 14, § 3 “Grounds for Impeachments,” H.R. Doc. No. 661, 94th Cong. 2d

Sess. (1977); Charles Doyle, Impeachment Grounds: A Collection of Selected Materials, CRS Report for Congress 98–882A (1998); and Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, CRS Report for Congress 98–186A (1998).

Sec. 4—Impeachment

650 ART. II—EXECUTIVE DEPARTMENT
better.” 871 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense.872 The issue was left unresolved, Chase’s acquittal owing more to the political divisions in

the Senate than to the merits of the arguments.873

Other Impeachments of Judges

The 1803 impeachment and conviction of Judge Pickering as well

as several successful 20th century impeachments of judges appear

to establish that judges may be removed for seriously questionable

conduct that does not violate a criminal statute.874 The articles on

which Judge Pickering was impeached and convicted focused on allegations of mishandling a case before him and appearing on the

bench in an intemperate and intoxicated state.875 Both Judge Archbald

and Judge Ritter were convicted on articles of impeachment that

charged questionable conduct probably not amounting to indictable

offenses.876

Of the three most recent judicial impeachments, Judges Claiborne

and Nixon had previously been convicted of criminal offenses, and

Judge Hastings had been acquitted of criminal charges after trial.

The impeachment articles against Judge Hastings charged both the

871 1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 HINDS’ PRECEDENTS OF THE HOUSE

OF REPRESENTATIVES OF THE UNITED STATES §§ 2356–2362 (1907).

872 3 HINDS’ PRECEDENTS at § 2361.

873 The full record is TRIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME

COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial

and acquittal, see Lillich, The Chase Impeachment, 4 AMER. J. LEGAL HIST. 49 (1960);

and WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL

CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Tyler and Johnson and the investigation of Justice Douglas are also generally viewed

as precedents that restrict the use of impeachment as a political weapon.

874 Some have argued that the constitutional requirement of “good behavior” and

“high crimes and misdemeanors” conjoin to allow the removal of judges who have

engaged in non-criminal conduct inconsistent with their responsibilities, or that the

standard of “good behavior”—not that of “high crimes and misdemeanors”—should

govern impeachment of judges. See 3 DESCHLER’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 14, §§ 3.10 and 3.13, H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977) (summarizing arguments made during the impeachment investigation of Justice William

O. Douglas in 1970). For a critique of these views, see Paul S. Fenton, The Scope of

the Impeachment Power, 65 NW. U. L. REV.719 (1970), reprinted in Staff of the House

Committee on the Judiciary, 105th Cong., Impeachment: Selected Materials 1801–03

(Comm. Print. 1998).

875 See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2319–2341 (1907)

876 Ten Broek, Partisan Politics and Federal Judgeship Impeachments Since 1903,

23 MINN. L. REV. 185 (1939). Judge Ritter was acquitted on six of the seven articles

brought against him, but convicted on a seventh charge that summarized the first

six articles and charged that the consequence of that conduct was “to bring his court

into scandal and disrepute, to the prejudice of said court and public confidence in

the Federal judiciary, and to render him unfit to continue to serve as such judge.”

This seventh charge was challenged unsuccessfully on a point of order, but was ruled

to be a separate charge of “general misbehavior.”

Sec. 4—Impeachment

ART. II—EXECUTIVE DEPARTMENT 651
conduct for which he had been indicted and trial conduct. A separate question was what effect the court acquittal should have had.877

Although the language of the Constitution makes no such distinction, some argue that, because of the different nature of their

responsibilities and because of different tenure, different standards

should govern impeachment of judges and impeachment of executive officers.878

The Johnson Impeachment

President Andrew Johnson was impeached by the House on the

ground that he had violated the “Tenure of Office” Act 879 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.” 880 Former Justice Benjamin Curtis controverted this argument, saying: “My first position is, that when the

Constitution speaks of ‘treason, bribery, and other high crimes and

misdemeanors,’ it refers to, and includes only, high criminal offences against the United States, made so by some law of the United

States existing when the acts complained of were done, and I say

that this is plainly to be inferred from each and every provision of

the Constitution on the subject of impeachment.” 881 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

877 Warren S. Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the

Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. REV. 1209, 1229–

1233 (1991).

878 See, e.g., Frank O. Bowman, III and Stephen L. Sepinuck, “High Crimes and

Misdemeanors”: Defining the Constitutional Limits on Presidential Impeachment, 72

S. CAL. L. REV. 1517, 1534–38 (1999). Congressional practice may reflect this view.

Judges Ritter and Claiborne were convicted on charges of income tax evasion, while

the House Judiciary Committee voted not to press such charges against President

Nixon. So too, the convictions of Judges Hastings and Nixon on perjury charges may

be contrasted with President Clinton’s acquittal on a perjury charge.

879 Act of March 2, 1867, ch. 154, 14 Stat. 430.

880 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT 88,

147 (1868).

881 Id. at 409.

Sec. 4—Impeachment

652 ART. II—EXECUTIVE DEPARTMENT
placed a gloss on the impeachment language approximating the theory

of the defense.882

The Nixon Impeachment Proceedings

For the first time in more than a hundred years,883 Congress

moved to impeach the President of the United States, a move forestalled only by the resignation of President Nixon on August 9, 1974.884

Three articles of impeachment were approved by the House Judiciary Committee, charging obstruction of the investigation of the

“Watergate” burglary inquiry, misuse of law enforcement and intelligence agencies for political purposes, and refusal to comply with

the Judiciary Committee’s subpoenas.885 Following President Nixon’s

resignation, the House adopted a resolution to “accept” the House

Judiciary Committee’s report recommending impeachment,886 but there

was no vote adopting the articles and thereby impeaching the former President, and consequently there was no Senate trial.

In the course of the proceedings, there was strenuous argument about the nature of an impeachable offense, whether only

criminally-indictable actions qualify for that status or whether the

definition is broader.887 The three articles approved by the Judi882 For an account of the Johnson proceedings, see WILLIAM H. REHNQUIST, GRAND

INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992).

883 The only occasion before the Johnson impeachment when impeachment of a

President had come to a House vote was the House’s rejection in 1843 of an impeachment resolution against President John Tyler. The resolution, which listed nine separate counts and which was proposed by a member rather than by a committee, was

defeated by vote of 127 to 84. See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES

§ 2398 (1907); CONG. GLOBE, 27th Cong. 3d Sess. 144–46 (1843).

884 The President’s resignation did not necessarily require dismissal of the impeachment charges. Judgment upon conviction can include disqualification as well

as removal. Art. I, § 3, cl. 7. Precedent from the 1876 impeachment of Secretary of

War William Belknap, who had resigned prior to his impeachment by the House,

suggests that impeachment can proceed even after a resignation. See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, § 2445 (1907). The Belknap precedent may be

somewhat weakened, however, by the fact that his acquittal was based in part on

the views of some Senators that impeachment should not be applied to someone no

longer in office, id. at § 2467, although the Senate had earlier rejected (by majority

vote of 37–29) a resolution disclaiming jurisdiction, and had adopted by vote of 35–22

a resolution affirming that result See id. at § 2007 for an extensive summary of the

Senate’s consideration of the issue. See also id, § 2317 (it had been conceded during

the 1797 proceedings against Senator William Blount, who had been sequestered

from his seat in the Senate, that an impeached officer could not escape punishment

by resignation).

885 H.R. REP. NO. 93–1305.

886 120 CONG. REC. 29361–62 (1974).

887 Analyses of the issue from different points of view are contained in Impeachment Inquiry Staff, House Judiciary Committee, 93d Cong., Constitutional Grounds

for Presidential Impeachments, (Comm. Print 1974); 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 AsSec. 4—Impeachment

ART. II—EXECUTIVE DEPARTMENT 653
ciary Committee were all premised on abuse of power, although the

first article, involving obstruction of justice, also involved a criminal violation.888 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 occur only after removal from office. In fact, the

argument was really directed only to the status of the President,

as it was argued that he embodied the Executive Branch itself, while

lesser executive officials and judges were not of that calibre.889 That

issue also remained unsettled, the Supreme Court declining to provide guidance in the course of deciding a case on executive privilege.890

The Clinton Impeachment

President Clinton was impeached by the House, but acquitted

by vote of the Senate. The House approved two articles of impeachment against the President stemming from the President’s response to a sexual harassment civil lawsuit and to a subsequent

grand jury investigation instigated by an Independent Counsel. The

first article charged the President with committing perjury in testifying before the grand jury about his sexual relationship with a White

House intern and his efforts to cover it up; 891 the second article

charged the President with obstruction of justice relating both to

pects of Impeachment: An Overview, and Appendix I (Washington: 1974). See also

RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973), which preceded the

instant controversy; and MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A

CONSTITUTIONAL AND HISTORICAL ANALYSIS 103–06 (2d ed. 2000).

888 Indeed, the Committee voted not to recommend impeachment for alleged income tax fraud, an essentially private crime not amounting to an abuse of power.

889 The question first arose during the grand jury investigation of former Vice

President Agnew, during which the United States, through the Solicitor General,

argued that the Vice President and all civil officers were not immune from the judicial process and could be indicted prior to removal, but that the President for a number of constitutional and practical reasons 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 held that a federal judge

was indictable and could be convicted prior to removal from office. United States v.

Claiborne, 727 F.2d 842, 847–848 (9th Cir.), cert. denied, 469 U.S. 829 (1984); United

States v. Hastings, 681 F.2d 706, 710–711 (11th Cir.), cert. denied, 459 U.S. 1203

(1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied sub nom. Kerner

v. United States, 417 U.S. 976 (1974).

890 The grand jury had named the President as an unindicted coconspirator in

the case of United States v. Mitchell, et al., No. 74–110 (D.D.C. 1974), 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 as improvidently granted the President’s petition for certiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974).

891 Approved by a vote of 228–206. 144 CONG. REC. H12,040 (daily ed. Dec. 19,

1998).

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the civil lawsuit and to the grand jury proceedings.892 Two additional articles of impeachment had been approved by the House Judiciary Committee but were rejected by the full House.893 The Senate trial resulted in acquittal on both articles.894

A number of legal issues surfaced during congressional consideration of the Clinton impeachment.895 Although the congressional

votes on the different impeachment articles were not neatly divided between legal and factual matters and therefore cannot be

said to have resolved the legal issues,896 several aspects of the proceedings merit consideration for possible precedential significance.

The House’s acceptance of the grand jury perjury charge and its

rejection of the civil deposition perjury charge may reflect a belief

among some members that perjury in the criminal context is more

serious than perjury in the civil context. Acceptance of the obstruction of justice charge may also have been based in part on an assessment of the seriousness of the charge. On the other hand, the

House’s rejection of the article relating to President Clinton’s alleged non-cooperation with the Judiciary Committee’s interrogatories can be contrasted with the House’s 1974 “acceptance” of the

Judiciary Committee’s report recommending 897 a similar type of charge

against President Nixon, and raises the issue of whether the differ892 Approved by a vote of 221–212. 144 CONG. REC. H12,041 (daily ed. Dec. 19,

1998).

893 An article charging the President with perjury in the civil sexual harassment suit brought against him was defeated by a vote of 229–205; another article

charging him with abuse of office by false responses to the House Judiciary Committee’s written request for factual admissions was defeated by vote of 285 to 148. 144

CONG. REC. H12,042 (daily ed. Dec. 19, 1998).

894 The vote for acquittal was 55 to 45 on the grand jury perjury charge, and 50

to 50 on the obstruction of justice charge. 145 CONG. REC. S1458–59 (daily ed. Feb.

12, 1999).

895 For analysis and different perspectives on the Clinton impeachment, see Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. (1998); and Staff of

the House Comm. on the Judiciary, 105th Cong., Impeachment: Selected Materials

(Comm. Print 1998). See also MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS:

A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); RICHARD A. POSNER, AN AFFAIR OF

STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999); LAURENCE

H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 181–202 (3d ed. 2000); and Michael Stokes

Paulsen, Impeachment (Update), 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1340–43

(2d ed. 2000). Much of the documentation can be found in Impeachment of William

Jefferson Clinton, President of the United States, H.R. REP. NO. 105–380 (1998); Staff

of the House Comm. on the Judiciary, 105th Cong., 2d Sess., Impeachment Inquiry:

William Jefferson Clinton, President of the United States; Consideration of Articles

of Impeachment (Comm. Print 1998); and Impeachment of President William Jefferson Clinton: The Evidentiary Record Pursuant to S. Res. 16, S. Doc. No. 106–3 (1999)

(21-volume set).

896 Following the trial, a number of Senators placed statements in the record

explaining their votes. See 145 CONG. REC. S1462–1637 (daily ed. Feb. 12, 1999).

897 Note that the Judiciary Committee deleted from the article a charge based

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ART. II—EXECUTIVE DEPARTMENT 655
ent circumstances (e.g., the relative importance of the information

sought, and the nature and extent of the responses) may account

for the different approaches. So too, the acquittal of President Clinton on the perjury charge can be contrasted with convictions of Judges

Hastings and Nixon on perjury charges, and presents the issue of

whether different standards should govern Presidents and judges.

The role of the Independent Counsel in complying with a statutory

mandate to refer to the House “any substantial and credible information . . . that may constitute grounds for an impeachment” occasioned commentary.898 The relationship of censure to impeachment

was another issue that arose. Some members advocated censure of

President Clinton as an alternative to impeachment, as an alternative to trial, or as a post-trial means for those Senators who voted

to acquit to register their disapproval of the President’s conduct,

but there was no vote on censure.899

Finally, the Clinton impeachment raised the issue of what the

threshold is for “high crimes and misdemeanors.” While the Nixon

charges were premised on the assumption that an abuse of power

need not be a criminal offense to be an impeachable offense,900 the

Clinton proceedings—or at least the perjury charge—raised the issue of whether criminal offenses that do not rise to the level of an

abuse of power may nonetheless be impeachable offenses.901 The

House’s vote to impeach President Clinton arguably amounted to

sponse to subpoenas from the Office of Independent Counsel. Similarly, the Committee in 1974 distinguished between President Nixon’s refusal to respond to congressional subpoenas and his refusal to respond to those of the special prosecutor; only

the refusal to provide information to the impeachment inquiry was cited as an impeachable abuse of power.

898 The requirement was contained in the Ethics in Government Act, since lapsed,

and codified at 28 U.S.C. § 595(c). For commentary, see Ken Gormley, Impeachment

and the Independent Counsel: A Dysfunctional Union, 51 STAN. L. REV. 309 (1999).

899 For analysis of the issue, see Jack Maskell, Censure of the President by Congress, CRS Report for Congress 98–843.

900 According to one scholar, the three articles of impeachment against President Nixon epitomized the “paradigm” for presidential impeachment—abuse of power

in which there is “not only serious injury to the constitutional order but also a nexus

between the misconduct of an impeachable official and the official’s formal duties.”

Michael J. Gerhardt, The Lessons of Impeachment History, 67 GEO. WASH. L. REV.

603, 617 (1999).

901 Although committing perjury in a judicial proceeding—regardless of purpose

or subject matter—impedes the proper functioning of the judiciary both by frustrating the search for truth and by breeding disrespect for courts, and consequently may

be viewed as an (impeachable) “offense against the state” (see 145 CONG. REC. S1556

(daily ed. Feb. 12, 1999) (statement of Sen. Thompson)), such perjury arguably constitutes an abuse of power only if the purpose or subject matter of the perjury relates to official duties or to aggrandizement of power. Note that one of the charges

against President Clinton recommended by the House Judiciary Committee but rejected by the full House—providing false responses to the Committee’s interrogatories—

was squarely premised on an abuse of power.

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an affirmative answer,902 but the Senate’s acquittal leaves the matter somewhat unsettled.903 There appeared to be broad consensus

in the Senate that some private crimes not involving an abuse of

power (e.g., murder for personal reasons) are so outrageous as to

constitute grounds for removal,904 but there was no consensus on

where the threshold for outrageousness lies, and there was no consensus that the perjury and obstruction of justice with which President Clinton was charged were so outrageous as to impair his ability to govern, and hence to justify removal.905 Similarly, the almost

evenly divided Senate vote to acquit meant that there was no consensus that removal was justified on the alternative theory that the

alleged perjury and obstruction of justice so damaged the judiciary

as to constitute an impeachable “offense against the state.” 906

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, i.e., that the Constitution’s conferral on the

Senate of the “sole” power to try impeachments is a textually de902 The House vote can be viewed as rejecting the views of a number of law

professors, presented in a letter to the Speaker entered into the Congressional Record, arguing that high crimes and misdemeanors must involve “grossly derelict exercise of official power.” 144 CONG. REC. H9649 (daily ed. Oct. 6, 1998).

903 Some Senators who explained their acquittal votes rejected the idea that the

particular crimes that President Clinton was alleged to have committed amounted

to impeachable offenses (see, e.g., 145 CONG. REC. S1560 (daily ed. Feb. 12, 1999)

(statement of Sen. Moynihan); id. at 1601 (statement of Sen. Lieberman)), some alleged failure of proof (see, e.g., id. at 1539 (statement of Sen. Specter); id. at 1581

(statement of Sen. Akaka)), and some cited both grounds (see, e.g., id. at S1578–91

(statement of Sen. Leahy), and id. at S1627 (statement of Sen. Hollings)).

904 See, e.g., 145 CONG. REC. S1525 (daily ed. Feb. 12, 1999) (statement of Sen.

Cleland) (accepting the proposition that murder and other crimes would qualify for

impeachment and removal, but contending that “the current case does not reach the

necessary high standard”); id. at S1533 (statement of Sen. Kyl) (impeachment cannot be limited to wrongful official conduct, but must include murder); and id. at S1592

(statement of Sen. Leahy) (acknowledging that “heinous” crimes such as murder would

warrant removal). This idea, incidentally, was not new; one Senator in the First Congress apparently assumed that impeachment would be the first recourse if a President were to commit a murder. IX DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, 1789–1790, THE DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES

168 (Kenneth R. Bowling and Helen E. Veit, eds. 1988).

905 One commentator, analogizing to the impeachment and conviction of Judge

Claiborne for income tax evasion, viewed the basic issue in the Clinton case as whether

his alleged misconduct was so outrageous as to “effectively rob[ ] him of the requisite moral authority to continue to function as President.” Gerhardt, supra n.817, at

619. Under this view, the Claiborne conviction established that income tax evasion

by a judge, although unrelated to official duties, reveals the judge as lacking the

unquestioned integrity and moral authority necessary to preside over criminal trials, especially those involving tax evasion.

906 Senator Thompson propounded this theory in arguing that “abuse of power”

is too narrow a category to encompass all forms of subversion of government that

should be grounds for removal. 145 CONG. REC. S1556 (daily ed. Feb. 12, 1999).

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monstrable constitutional commitment of trial procedures to the Senate to decide without court review. That assumption was not contested until very recently, when Judges Nixon and Hastings challenged

their Senate convictions.907

In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable “political question.” 908 Specifically, the

Court rejected a claim that the Senate had departed from the meaning of the word “try” in the impeachment clause by relying on a

special committee to take evidence, including testimony. But the Court’s

“political question” analysis has broader application, and appears

to place the whole impeachment process off limits to judicial review.909

907 Both judges challenged 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, supra at 50–53, 54–

57; Grimes, supra at 1233–37. In the Nixon case, the lower courts held the issue to

be non-justiciable (Nixon v. United States, 744 F. Supp. 9 (D.D.C. 1990), aff’d, 938

F.2d 239 (D.C. Cir. 1991), but a year later a district court initially ruled in Judge

Hastings’ favor. Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated,

988 F.2d 1280 (D.C. Cir. 1993).

908 Nixon v. United States, 506 U.S. 224 (1993). Nixon at the time of his conviction and removal from office was a federal district judge in Mississippi.

909 The Court listed “reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” and elsewhere agreed

with the appeals court that “opening the door of judicial review to the procedures

used by the Senate in trying impeachments would expose the political life of the

country to months, or perhaps years, of chaos.” 506 U.S. at 234, 236.

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