429

ARTICLE II 

EXECUTIVE DEPARTMENT 

CONTENTS

Page

Section 1. The President ........................................................................................................... 433 

Clause 1. Powers and Term of the President ................................................................... 433 

Nature and Scope of Presidential Power ................................................................... 433 

Creation of the Presidency .................................................................................. 433 

Executive Power: Theory of the Presidential Office .......................................... 435 

Hamilton and Madison ................................................................................. 436 

The Myers Case ............................................................................................. 438 

The Curtiss-Wright Case .............................................................................. 438 

The Youngstown Case ................................................................................... 440 

The Practice in the Presidential Office ....................................................... 442 

Executive Power: Separation-of-Powers Judicial Protection ............................ 442 

Tenure .......................................................................................................................... 447 

Clauses 2 and 3. Election ................................................................................................... 448

Clause 4. Election ............................................................................................................... 449 

Electoral College .......................................................................................................... 449

‘‘Appoint’’ ............................................................................................................... 450 

State Discretion in Choosing Electors ................................................................ 450 

Constitutional Status of Electors ........................................................................ 452 

Electors as Free Agents ....................................................................................... 453 

Clause 5. Qualifications ..................................................................................................... 455

Clause 6. Presidential Succession ..................................................................................... 457 

Clause 7. Compensation and Emoluments ....................................................................... 458 

Clause 8. Oath of Office ..................................................................................................... 458

Section 2. Powers and Duties of the President ....................................................................... 459 

Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons ............................ 459 

Commander-in-Chief ................................................................................................... 459 

Development of the Concept ................................................................................ 459 

The Limited View ......................................................................................... 459 

The Prize Cases ............................................................................................. 460 

Impact of the Prize Cases on World Wars I and II .................................... 462 

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

Beyond ............................................................................................................... 462 

Presidential War Agencies ........................................................................... 463 

Constitutional Status of Presidential Agencies .......................................... 464 

Evacuation of the West Coast Japanese ..................................................... 464 

Presidential Government of Labor Relations ............................................. 465 

Sanctions Implementing Presidential Directives ....................................... 466 

The Postwar Period ...................................................................................... 467 

The Cold War and After: Presidential Power to Use Troops Overseas Without Congressional Authorization ..................................................................... 469 

The Historic Use of Force Abroad ............................................................... 470 

The Theory of Presidential Power ............................................................... 472 

The Power of Congress to Control the President’s Discretion ................... 473 

430 ART. II—EXECUTIVE DEPARTMENT 

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 .......................................... 475 

The Commander-in-Chief a Civilian Officer ............................................... 477 

Martial Law and Constitutional Limitations ..................................................... 478 

Martial Law in Hawaii ................................................................................. 481 

Articles of War: The Nazi Saboteurs ........................................................... 482 

Articles of War: World War II Crimes ........................................................ 483 

Martial Law and Domestic Disorder ........................................................... 484 

Presidential Advisers .................................................................................................. 485 

The Cabinet .......................................................................................................... 485 

Pardons and Reprieves ............................................................................................... 485 

The Legal Nature of a Pardon ............................................................................ 485 

Scope of the Power ............................................................................................... 487 

Offenses Against the United States; Contempt of Court ........................... 487 

Effects of a Pardon: Ex parte Garland ........................................................ 489 

Limits to the Efficacy of a Pardon ............................................................... 490 

Congress and Amnesty ........................................................................................ 491 

Clause 2. Treaties and Appointment of Officers .............................................................. 491 

The Treaty-Making Power .......................................................................................... 492 

President and Senate ........................................................................................... 492 

Negotiation, a Presidential Monopoly ......................................................... 492 

Treaties as Law of the Land ............................................................................... 493 

Origin of the Conception .............................................................................. 494 

Treaties and the States ................................................................................ 495 

Treaties and Congress .................................................................................. 497 

Congressional Repeal of Treaties ................................................................ 499 

Treaties versus Prior Acts of Congress ....................................................... 500 

When Is a Treaty Self-Executing ................................................................. 501 

Treaties and the Necessary and Proper Clause ......................................... 503 

Constitutional Limitations on the Treaty Power ............................................... 505 

Interpretation and Termination of Treaties as International Compacts ......... 509 

Termination of Treaties by Notice ............................................................... 510 

Determination Whether a Treaty Has Lapsed ........................................... 513 

Status of a Treaty a Political Question ....................................................... 514 

Indian Treaties ..................................................................................................... 514 

Present Status of Indian Treaties ............................................................... 515 

International Agreements Without Senate Approval ............................................... 516 

Executive Agreements by Authorization of Congress ....................................... 517 

Reciprocal Trade Agreements ...................................................................... 518 

The Constitutionality of Trade Agreements ............................................... 518 

The Lend-Lease Act ...................................................................................... 519 

International Organizations ......................................................................... 520 

Executive Agreements Authorized by Treaties .................................................. 520 

Arbitration Agreements ................................................................................ 520 

Agreements Under the United Nations Charter ........................................ 521 

Status of Forces Agreements ....................................................................... 522 

Executive Agreements on the Sole Constitutional Authority of the President .................................................................................................................... 522 

The Litvinov Agreement ............................................................................... 525 

The Hull-Lothian Agreement ....................................................................... 525 

The Post-War Years ...................................................................................... 526 

The Domestic Obligation of Executive Agreements .......................................... 526 

ART. II—EXECUTIVE DEPARTMENT 431

Section 2. Powers and Duties of the President—Continued 

Clause 2. Treaties and Appointment of Officers—Continued 

The Executive Establishment ..................................................................................... 529 

Office ..................................................................................................................... 529

Ambassadors and Other Public Ministers .................................................. 529 

Presidential Diplomatic Agents ................................................................... 531 

Appointments and Congressional Regulation of Offices ................................... 533 

Congressional Regulation of Conduct in Office .......................................... 539 

The Loyalty Issue .......................................................................................... 540 

Financial Disclosure and Limitations ......................................................... 541 

Legislation Increasing Duties of an Officer ................................................ 542 

Stages of Appointment Process ........................................................................... 542 

Nomination .................................................................................................... 542 

Senate Approval ............................................................................................ 542 

When Senate Consent Is Complete ............................................................. 543 

The Removal Power ............................................................................................. 543 

The Myers Case ............................................................................................. 543 

The Humphrey Case ..................................................................................... 546 

The Wiener Case ........................................................................................... 547 

The Watergate Controversy ......................................................................... 548 

The Removal Power Rationalized ................................................................ 549 

Other Phases of Presidential Removal Power ............................................ 552 

The Presidential Aegis: Demands for Papers .................................................... 553 

Private Access to Government Information ................................................ 555 

Prosecutorial and Grand Jury Access to Presidential Documents ............ 556 

Congressional Access to Executive Branch Information ............................ 559 

Clause 3. Vacancies during Recess of Senate ................................................................... 560 

Recess Appointments .................................................................................................. 560 

Judicial Appointments ......................................................................................... 561 

Ad Interim Designations ...................................................................................... 561 

Section 3. Legislative, Diplomatic, and Law Enforcement Duties of the President ............. 562 

Legislative Role of the President ............................................................................... 562 

The Conduct of Foreign Relations .............................................................................. 563 

The Right of Reception: Scope of the Power ...................................................... 563 

The Presidential Monopoly .................................................................................. 563 

The Logan Act ............................................................................................... 564 

A Formal or a Formative Power .................................................................. 564 

The President’s Diplomatic Role .................................................................. 565 

Jefferson’s Real Position ............................................................................... 566 

The Power of Recognition .................................................................................... 566 

The Case of Cuba .......................................................................................... 567 

The Power of Nonrecognition ....................................................................... 569 

Congressional Implementation of Presidential Policies .................................... 569 

The Doctrine of Political Questions .................................................................... 570 

Recent Statements of the Doctrine .............................................................. 572 

The President as Law Enforcer ......................................................................................... 575 

Powers Derived from This Duty ................................................................................. 575 

Impoundment of Appropriated Funds ....................................................................... 578 

Power and Duty of the President in Relation to Subordinate Executive Officers . 581 

Administrative Decentralization Versus Jacksonian Centralism .................... 582 

Congressional Power Versus Presidential Duty to the Law ............................. 583 

Myers Versus Morrison ........................................................................................ 584 

Power of the President to Guide Enforcement of the Penal Laws ................... 585 

432 ART. II—EXECUTIVE DEPARTMENT 

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

The President as Law Enforcer—Continued 

The President as Law Interpreter ............................................................................. 586 

Military Power In Law Enforcement: The Posse Comitatus ................................... 587 

Suspension of Habeas Corpus by the President ....................................................... 588 

Preventive Martial Law .............................................................................................. 589 

The Debs Case ...................................................................................................... 589 

Present Status of the Debs Case ......................................................................... 590 

The President’s Duty in Cases of Domestic Violence in the States ........................ 591 

The President as Executor of the Law of Nations .................................................... 591 

Protection of American Rights of Person and Property Abroad ..................................... 592 

Congress and the President versus Foreign Expropriation ..................................... 593 

Presidential Action in the Domain of Congress: The Steel Seizure Case ...................... 594 

The Doctrine of the Opinion of the Court ................................................................. 595 

The Doctrine Considered ............................................................................................ 595 

Power Denied by Congress ......................................................................................... 598 

Presidential Immunity from Judicial Direction ............................................................... 600 

Unofficial Conduct ....................................................................................................... 604 

The President’s Subordinates ..................................................................................... 605 

Commissioning Officers ..................................................................................................... 606

Section 4. Impeachment ............................................................................................................ 607 

Impeachment ...................................................................................................................... 607 

Persons Subject to Impeachment ............................................................................... 608 

Judges ................................................................................................................... 608 

Judgment—Removal and Disqualification ................................................................ 610 

Impeachable Offenses ................................................................................................. 611 

The Chase Impeachment ............................................................................................ 613 

Other Impeachments of Judges .................................................................................. 613 

The Johnson Impeachment ......................................................................................... 615 

The Nixon Impeachment ............................................................................................ 615 

The Clinton Impeachment .......................................................................................... 617 

Judicial Review of Impeachments .............................................................................. 620 

433

1The 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. 

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 thus independent of the legislature, his term was three 

years and he was indefinitely re-eligible, his decisions except with 

regard to appointments and vetoes were unencumbered with a 

council, he was in charge of the militia, he possessed the pardoning 

power, and he was charged to take care that the laws were faithfully executed. 2 But when the Convention assembled and almost to 

its closing days, there was no assurance that the executive department would not be headed by plural administrators, would not be 

unalterably tied to the legislature, and would not be devoid of 

many of the powers normally associated with an executive. 

Debate in the Convention proceeded against a background of 

many things, but most certainly uppermost in the delegates’ minds 

was the experience of the States and of the national government 

under the Articles of Confederation. Reacting to the exercise of 

powers by the royal governors, the framers of the state constituVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
434 ART. II—EXECUTIVE DEPARTMENT 

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

3 C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 chs. 1-3 (1923). 4The 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. 

tions had generally created weak executives and strong legislatures, though 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

Nonetheless, the Virginia Plan, which formed the basis of discussion, offered in somewhat vague language a weak executive. Selection was to be by the legislature, and that body was to determine the major part of executive competency. The executive’s salary was, however, to be fixed and not subject to change by the legislative branch during the term of the executive, and he was ineligible for re-election so that he need not defer overly to the legislature. A council of revision was provided, of which the executive was 

a part, with power to negative national and state legislation. The 

executive power was said to be the power to ‘‘execute the national 

laws’’ and to ‘‘enjoy the Executive rights vested in Congress by the 

Confederation.’’ The Plan did not provide for a single or plural executive, leaving that issue open. 4

When the executive portion of the Plan was taken up on June 

1, James Wilson immediately moved that the executive should consist of a single person. 5 In the course of his remarks, Wilson demonstrated his belief in a strong executive, advocating election by 

the people, which would free the executive of dependence on the 

national legislature and on the States, proposing indefinite re-eligibility, and preferring an absolute negative though in concurrence 

with a council of revision. 6 The vote on Wilson’s motion was put 

over until the questions of method of selection, term, mode of removal, and powers to be conferred had been considered; subsequently, the motion carried, 7 and the possibility of the development 

of a strong President was made real. 

Only slightly less important was the decision finally arrived at 

not to provide for an executive council, which would participate not 

only in the executive’s exercise of the veto power but also in the 

exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the ConvenVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00002 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 435

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

8The 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). 16W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 202, 205 

(1908).

tion ultimately rejected the proposal and adopted language vesting 

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

these matters. 8

Finally, the designation of the executive as the ‘‘President of 

the United States’’ was made in a tentative draft reported by the 

Committee on Detail 9 and accepted by the Convention without discussion. 10 The same clause had provided that the President’s title 

was to be ‘‘His Excellency,’’ 11 and, while this language was also accepted without discussion, 12 it was subsequently omitted by the 

Committee on Style and Arrangement 13 with no statement of the 

reason and no comment in the Convention. 

Executive Power: Theory of the Presidential Office 

The most obvious meaning of the language of Article II, § 1, 

is to confirm that the executive power is vested in a single person, 

but almost from the beginning it has been contended that the 

words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much 

larger debate about the nature of the Presidency. With Justice 

Jackson, we ‘‘may be surprised at the poverty of really useful and 

unambiguous authority applicable to concrete problems of executive 

power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen 

modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt 

quotations from respected sources on each side of any question. 

They largely cancel each other.’’ 14 At the least, it is no doubt true 

that the ‘‘loose and general expressions’’ by which the powers and 

duties of the executive branch are denominated 15 place the President in a position in which he, as Professor Woodrow Wilson noted, 

‘‘has the right, in law and conscience, to be as big a man as he can’’ 

and in which ‘‘only his capacity will set the limit.’’ 16

436 ART. II—EXECUTIVE DEPARTMENT 

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

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

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

Hamilton and Madison.—Hamilton’s defense of President 

Washington’s issuance of a neutrality proclamation upon the outbreak of 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 Said

Hamilton: ‘‘The second article of the Constitution of the United 

States, section first, establishes this general proposition, that ‘the 

Executive Power shall be vested in a President of the United States 

of America.’ The same article, in a succeeding section, proceeds to 

delineate particular cases of executive power. It declares, among 

other things, that the president shall be commander in chief of the 

army and navy of the United States, and of the militia of the several states, when called into the actual service of the United 

States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that 

the laws be faithfully executed. It would not consist with the rules 

of sound construction, to consider this enumeration of particular 

authorities as derogating from the more comprehensive grant in 

the general clause, further than as it may be coupled with express 

restrictions or limitations; as in regard to the co-operation of the 

senate in the appointment of officers, and the making of treaties; 

which are plainly qualifications of the general executive powers of 

appointing officers and making treaties.’’ 

‘‘The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, 

and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when 

antecedently used. The different mode of expression employed in 

the constitution, in regard to the two powers, the legislative and 

the executive, serves to confirm this inference. In the article which 

gives the legislative powers of the government, the expressions are, 

‘All legislative powers herein granted shall be vested in a congress 

of the United States.’ In that which grants the executive power, the 

expressions are, ‘The executive power shall be vested in a President 

of the United States.’ The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied 

in the definition of executive power; leaving the rest to flow from 

the general grant of that power, interpreted in conformity with 

other parts of the Constitution, and with the principles of free govVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 437

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

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). 

ernment. The general doctrine of our Constitution then is, that the 

executive power of the nation is vested in the President; subject 

only to the exceptions and qualifications, which are expressed in 

the instrument.’’ 18

Madison’s reply to Hamilton, in five closely reasoned articles, 19

was almost exclusively directed to Hamilton’s development of the 

contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers 

vested in Congress which bore on this function, such as the power 

to declare war, did not diminish the discretion of the President in 

the exercise of his powers. Madison’s principal reliance was on the 

vesting of the power to declare war in Congress, thus making it a 

legislative function rather than an executive one, combined with 

the argument that possession of the exclusive power carried with 

it the exclusive right to judgment about the obligations to go to war 

or to stay at peace, negating the power of the President to proclaim 

the nation’s neutrality. Implicit in the argument was the rejection 

of the view that the first section of Article II bestowed powers not 

vested in subsequent sections. ‘‘Were it once established that the 

powers of war and treaty are in their nature executive; that so far 

as they are not by strict construction transferred to the legislature, 

they actually belong to the executive; that of course all powers not 

less executive in their nature than those powers, if not granted to 

the legislature, may be claimed by the executive; if granted, are to 

be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen 

could any longer guess at the character of the government under 

which he lives; the most penetrating jurist would be unable to scan 

the extent of constructive prerogative.’’ 20 The arguments are today 

pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the 

438 ART. II—EXECUTIVE DEPARTMENT 

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

21 Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, 

Plural Judiciary, 105 HARV. L. REV. 1155 (1992), with Froomkin, The Imperial Presidency’s New Vestments, 88 NW. U. L. REV. 1346 (1994), and responses by Calabresi, 

Rhodes and Froomkin, id. at 1377, 1406, 1420. 22 272 U.S. 52 (1926). See Corwin, The President’s Removal Power Under the 

Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1467 (1938). 23 C. THACH, THE CREATION OF THE PRESIDENCY, 1775-1789 ch. 6 (1923). 24Myers v. United States, 272 U.S. 52, 163-164 (1926). Professor Taft had held 

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

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

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

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

the federal constitution or in an act of congress passed in pursuance thereof. There 

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

to be in the public interest... .’’ W. TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 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). 

contentiousness still settles upon the reading of the vesting clauses 

of Articles I, II, and III. 21

The Myers Case.—However much the two arguments are still 

subject to dispute, Chief Justice Taft, himself a former President, 

appears in Myers v. United States 22 to have carried a majority of 

the Court with him in establishing the Hamiltonian conception as 

official doctrine. That case confirmed one reading of the ‘‘Decision 

of 1789’’ in holding the removal power to be constitutionally vested 

in the President. 23 But its importance here lies in its interpretation 

of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal 

power, as vesting all executive power in the President, the subsequent language was read as merely particularizing some of this 

power, and consequently the powers vested in Congress were read 

as exceptions which must be strictly construed in favor of powers 

retained by the President. 24 Myers remains the fountainhead of the 

latitudinarian constructionists of presidential power, but its dicta, 

with regard to the removal power, were first circumscribed in 

Humphrey’s Executor v. United States, 25 and then considerably altered in Morrison v. Olson; 26 with regard to the President’s ‘‘inherent’’ powers, the Myers dicta were called into considerable question 

by Youngstown Sheet & Tube Co. v. Sawyer. 27

The Curtiss-Wright Case.—Further Court support of the 

Hamiltonian view was advanced in United States v. Curtiss-Wright 

Export Corp., 28 in which Justice Sutherland posited the doctrine 

that the power of the National Government in foreign relations is 

not one of enumerated powers, but rather is inherent. The doctrine 

was then combined with Hamilton’s contention that control of forVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00006 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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Sec. 1—The President Clause 1—Powers and Term of the President 

29 299 U.S. at 315-16, 318 

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

with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were 

at all relevant in foreign affairs. 

‘‘The broad statement that the federal government can exercise 

no powers except those specifically enumerated in the constitution, 

and such implied powers—as are necessary and proper to carry 

into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of 

the Constitution was to carve from the general mass of legislative 

powers then possessed by the states such portions as were thought 

desirable to vest in the federal government, leaving those not included in the enumeration still in the states . . . . That this doctrine 

applies only to powers which the states had, is self evident. And 

since the states severally never possessed international powers, 

such powers could not have been carved from the mass of state 

powers but obviously were transmitted to the United States from 

some other source ... .’’ 

‘‘As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed 

from the Crown not to the colonies severally, but to the colonies in 

their collective and corporate capacity as the United States of 

America ... .’’ 

‘‘It results that the investment of the federal government with 

the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage 

war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned 

in the Constitution, would have been vested in the federal government as necessary concomitants of nationality ... .’’ 

‘‘Not only . . . is the federal power over external affairs in origin 

and essential character different from that over internal affairs, 

but participation in the exercise of power is significantly limited. 

In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to 

speak or listen as a representative of the nation . . . .’’ 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 

440 ART. II—EXECUTIVE DEPARTMENT 

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

30Levitan, 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). 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 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 Curtiss-Wright, 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. 34That the opinion ‘‘remains authoritative doctrine’’ is stated in L. HENKIN,

FOREIGN AFFAIRS AND THE CONSTITUTION 25-26 (1972). It is utilized 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). 

It will be noted, however, that the Restatement is circumspect about the reach of 

the opinion in controversies between presidential and congressional powers. 

a collective unit, is in error. 30 Dicta in later cases controvert the 

conclusions drawn in Curtiss-Wright about the foreign relations 

power being inherent rather than subject to the limitations of the 

delegated powers doctrine. 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 only recent case in which the 

‘‘inherent’’ powers of the President or the issue of what executive 

powers are vested by the first section of Article II has been extenVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 441

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

35The issue is implicit in several of the opinions of the Justices in New York 

Times Co. v. United States, 403 U.S. 713 (1971). See id. at 727, 728-30 (Justice 

Stewart concurring), 752, 756-59 (Justice Harlan dissenting). Assertions of inherent 

power to sustain presidential action were made in Dames & Moore v. Regan, 453 

U.S. 654 (1981), but the Court studiously avoided these arguments in favor of a 

somewhat facile statutory analysis. Separation-of-powers analysis informed the 

Court’s decisions in United States v. Nixon, 418 U.S. 683 (1974), Nixon v. Administrator of General Services, 433 U.S. 425 (1977), Nixon v. Fitzgerald, 457 U.S. 731 

(1982), and Harlow v. Fitzgerald, 457 U.S. 800 (1982). While perhaps somewhat 

latitudinarian in some respect of the President’s powers, the analysis looks away 

from inherent powers. But see Haig v. Agee, 453 U.S. 280 (1981), in which the statutory and congressional ratification analyses is informed with a view of a range of 

presidential foreign affairs discretion combined with judicial deference according the 

President de facto much of the theoretically-based authority spelled out in CurtissWright.

36 343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A Judicial Brick 

Without Straw, 53 COLUM. L. REV. 53 (1953). A case similar to Youngstown was 

AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir.) (en banc), cert. denied, 443 U.S. 915 

(1979), sustaining a presidential order denying government contracts to companies 

failing to comply with certain voluntary wage and price guidelines on the basis of 

statutory interpretation of certain congressional delegations. 

37 343 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). 

38 343 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). 

39 343 U.S. at 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).

sively considered 35 is Youngstown Sheet & Tube Co. v. Sawyer, 36

and the multiple opinions there produced make difficult an evaluation of the matter. During the Korean War, President Truman 

seized the steel industry then in the throes of a strike. No statute 

authorized the seizure, and the Solicitor General defended the action as an exercise of the President’s executive powers which were 

conveyed by the first section of Article II, by the obligation to enforce the laws, and by the vesting of the function of commanderin-chief. 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 which did not include seizure. Thus, four 

of the majority Justices 37 appear to have been decisively influenced 

by the fact that Congress had denied the power claimed and this 

in an area in which the Constitution vested the power to decide at 

least concurrently if not exclusively in Congress. Three and perhaps four Justices 38 appear to have rejected the Government’s argument on the merits while three 39 accepted it in large measure. 

Despite the inconclusiveness of the opinions, it seems clear that the 

442 ART. II—EXECUTIVE DEPARTMENT 

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

40Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright 

Corp., 299 U.S. 304 (1936). Note that in Dames & Moore v. Regan, 453 U.S. 654, 

659-662, 668-669 (1981), the Court turned to Youngstown as embodying ‘‘much relevant analysis’’ on an issue of presidential power. 41For 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). 42 H. FORD, THE RISE AND GROWTH OF AMERICAN POLITICS 293 (1898). 43 E. CORWIN, THE PRESIDENT—OFFICE AND POWERS 1787-1957 ch. 1 (4th ed. 

1957). 44 Not that there have not been a few cases prior to the present period. See

Myers v. United States, 272 U.S. 52 (1926). But a hallmark of previous disputes between President and Congress has been the use of political combat to resolve them, 

rather than a resort to the courts. The beginning of the present period was Buckley 

v. Valeo, 424 U.S. 1, 109-143 (1976). 

result was a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss-Wright. 40

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. 41 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.’’ 42 While the modern theory of presidential power was conceived primarily by Alexander Hamilton, the 

modern conception of the presidential office was the contribution 

primarily of Andrew Jackson. 43

Executive Power: Separation-of-Powers Judicial Protection 

In recent cases, the Supreme Court has pronouncedly protected 

the Executive Branch, applying separation-of-powers principles to 

invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly 

to permit Congress a greater degree of discretion. 44

ART. II—EXECUTIVE DEPARTMENT 443

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

45Memorandum 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). 46 462 U.S. 919 (1983). 47 Although Chief Justice Burger’s opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of 

the decision to countermand the Attorney General’s application of delegated power 

to a particular individual. ‘‘Disagreement with the Attorney General’s decision on 

Chadha’s deportation . . . involves determinations of policy that Congress can implement in only one way . . . . Congress must abide by its delegation of authority until 

that delegation is legislatively altered or revoked.’’ 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, Inc., 501 U.S. 252 (1991). 48 478 U.S. 714 (1986). 

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. 45 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 to glosses on 

the take care clause and other provisions of the Constitution. 

Whether these memoranda signal long-term change depends on 

several factors, importantly on whether they are adhered to by subsequent administrations. 

In striking down the congressional veto as circumventing Article I’s bicameralism and presentment requirements attending exercise of legislative power, the Court also suggested in INS v. 

Chadha 46 that the particular provision in question, involving veto 

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

alien, in effect allowed Congress impermissible participation in execution of the laws. 47 And in Bowsher v. Synar, 48 the Court held 

that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, 

stated by Chief Justice Burger’s opinion of the Court in Chadha,

that ‘‘the powers delegated to the three Branches are functionally 

444 ART. II—EXECUTIVE DEPARTMENT 

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

49 462 U.S. at 951. 50Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-78 (1992). Evidently, however, while 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. 51Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief Justice 

Rehnquist was joined by seven of the eight participating Justices. Only Justice 

Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390-91 (1989), the 

Court, approving the placement of the Sentencing Commission in the judicial 

branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. 

Earlier, in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the Court, 

in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive 

power in appointing such counsel. 52The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99- 

177, 99 Stat. 1038. 

identifiable,’’ distinct, and definable. 49 In a ‘‘standing-to-sue’’ case, 

Justice Scalia for the Court denied that Congress could by statute 

confer standing on citizens not suffering particularized injuries to 

sue the Federal Government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to 

allow Congress to divest the President of his obligation under the 

‘‘take care’’ clause and to delegate the power to the judiciary. 50 On

the other hand, the Court in the independent counsel case, while 

acknowledging that the contested statute did restrict to some degree a constitutionally delegated function, law enforcement, upheld 

the law upon a flexible analysis that emphasized that neither the 

legislative nor the judicial branch had aggrandized its power and 

that the incursion into executive power did not impermissibly interfere with the President’s constitutionally assigned functions. 51

At issue in Synar were the responsibilities vested in the Comptroller General by the ‘‘Gramm-Rudman-Hollings’’ Deficit Control 

Act, 52 which set maximum deficit amounts for federal spending for 

fiscal years 1986 through 1991, and which directed across-theboard cuts in spending when projected deficits would exceed the 

target deficits. The Comptroller was to prepare a report for each 

fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to 

implement the reductions specified in the Comptroller’s report. The 

Court viewed these functions of the Comptroller ‘‘as plainly entailing execution of the law in constitutional terms. Interpreting a law 

... to implement the legislative mandate is the very essence of ‘execution’ of the law,’’ especially where ‘‘exercise [of] judgment’’ is 

called for, and where the President is required to implement the 

ART. II—EXECUTIVE DEPARTMENT 445

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

53 478 U.S. at 732-33. 54 478 U.S. at 734. 55 462 U.S. at 985-86. 56 462 U.S. at 989. 57 478 U.S. at 736, 750. 58 462 U.S. at 953 n.16. 59 Id.

interpretation. 53 Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the 

Court held, executive powers may not be delegated to him. ‘‘By 

placing the responsibility for execution of the [Act] in the hands of 

an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has 

intruded into the executive function.’’ 54

The Court in Chadha and Synar ignored or rejected assertions 

that its formalistic approach to separation of powers may bring into 

question the validity of delegations of legislative authority to the 

modern administrative state, sometimes called the ‘‘fourth branch.’’ 

As Justice White asserted in dissent in Chadha, ‘‘by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments . . . . There is no question but that agency rulemaking is lawmaking in any functional or 

realistic sense of the term.’’ 55 Moreover, Justice White noted, ‘‘rules 

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

of legislative action.’’ 56 Justice Stevens, concurring in Synar,

sounded the same chord in suggesting that the Court’s holding 

should not depend on classification of ‘‘chameleon-like’’ powers as 

executive, legislative, or judicial. 57 The Court answered these assertions on two levels: that the bicameral protection ‘‘is not necessary’’ when legislative power has been delegated to another 

branch confined to implementing statutory standards set by Congress, and that ‘‘the Constitution does not so require.’’ 58 In the 

same context, the Court acknowledged without disapproval that it 

had described some agency action as resembling lawmaking. 59

Thus Chadha may not be read as requiring that all ‘‘legislative 

power’’ as the Court defined it must be exercised by Congress, and 

Synar may not be read as requiring that all ‘‘executive power’’ as 

the Court defined it must be exercised by the executive. A more 

limited reading is that when Congress elects to exercise legislative 

power itself rather than delegate it, it must follow the prescribed 

bicameralism and presentment procedures, and when Congress 

elects to delegate legislative power or assign executive functions to 

the executive branch, it may not control exercise of those functions 

by itself exercising removal (or appointment) powers. 

446 ART. II—EXECUTIVE DEPARTMENT 

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

60Pub. L. 95-52l, title VI, 92 Stat. l867, 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. 61 487 U.S. at 693-96. See also Mistretta v. United States, 488 U.S. 361, 380- 

84, 390-91, 408-11 (1989). 62Dalton v. Specter, 511 U.S. 462 (1994). 

63 511 U.S. at 472. 

A more flexible approach was followed in the independent 

counsel case. Here, there was no doubt that the statute limited the 

President’s law enforcement powers. Upon a determination by the 

Attorney General that reasonable grounds exist for investigation or 

prosecution of certain high ranking government officials, he must 

notify a special, Article III court which appoints a special counsel. 

The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute. 60 The independent counsel was assuredly 

more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court undertook a careful assessment of the degree to which executive power 

was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. Also 

considered by the Court was the issue whether in enacting the 

statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive. 61

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. 62 The lower court had held that, while 

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 constitutional separation-of-powers 

doctrine. The Supreme Court found this analysis flawed. ‘‘Our 

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.’’ 63 Thus, the Court drew a distinction between executive action undertaken without even the purported warrant of 

statutory authorization and executive action in excess of statutory 

ART. II—EXECUTIVE DEPARTMENT 447

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

64See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 

300-10 (1994). 65 ‘‘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.’’ Id. at 305-06 (footnote citations omitted). 66 As to the meaning of ‘‘the fourth day of March,’’ see Warren, Political Practice 

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

authority. The former may violate separation of powers, while the 

latter will not. 64

Doctrinally, the distinction is important and subject to unfortunate application. 65 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. 66

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson 

who raised the objection that indefinite eligibility would in fact be 

for life and degenerate into an inheritance. Prior to 1940, the idea 

that no President should hold office for more than two terms was 

generally thought to be a fixed tradition, although some quibbles 

had been raised as to the meaning of the word ‘‘term.’’ The voters’ 

departure from the tradition in electing President Franklin D. Roosevelt to third and fourth terms led to the proposal by Congress on 

March 24, 1947, of an amendment to the Constitution to embody 

the tradition in the Constitutional Document. The proposal became 

a part of the Constitution on February 27, 1951, in consequence of 

448 ART. II—EXECUTIVE DEPARTMENT 

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

67 E. Corwin, supra at 34-38, 331-339. 

its adoption by the necessary thirty-sixth State, which was Minnesota. 67

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 Majority, then from the five highest 

on the List the said House shall in like manner chuse the 

President. But in chusing the President, the Votes shall be 

taken by States, the Representation from each State having 

one Vote; A quorum for this purpose shall consist of a Member 

ART. II—EXECUTIVE DEPARTMENT 449

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

68 2 M. Farrand, supra, p. 501. 69 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. 70See 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 influence on the electors, with the Federalists and the 

Jeffersonians organizing to control the selection of the Vice-President. Justice Jackson once noted: ‘‘As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.’’ Ray v. Blair, 343 U.S. 214, 232 (1952). But, of 

course, the electors still do actually elect the President and Vice President. 

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.’’ 68

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. 69 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. 70 But the college 

remains despite numerous efforts to adopt another method, a relic 

perhaps but still a significant one. Clause 3 has, of course, been 

superceded by the Twelfth Amendment. 

450 ART. II—EXECUTIVE DEPARTMENT 

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

71McPherson v. Blacker, 146 U.S. 1, 27 (1892). 

72 146 U.S. at 28-29. 

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

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

‘‘Appoint’’

The word ‘‘appoint’’ as used in Clause 2 confers on state legislatures ‘‘the broadest power of determination.’’ 71 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 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.’’ 72

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. 73 Its

power to protect the choice of electors from fraud or corruption was 

sustained. 74 ‘‘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 

ART. II—EXECUTIVE DEPARTMENT 451

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

75 Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884) (quoted in Burroughs and 

Cannon v. United States, 290 U.S. 534, 546 (1934)). 76 393 U.S. 23 (1968). 77 ‘‘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. 78 400 U.S. 112 (1970). 79The Court divided five-to-four on this issue. Of the majority, four relied on 

Congress’ power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. 400 U.S. at 119-124 (Justice Black announcing opinion of the Court). 80The Court divided eight-to-one on this issue. Of the majority, seven relied on 

Congress’ power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers. 81 393 U.S. 23 (1968). 82 Cf. Fourteenth Amendment, § 5. 

before the two great natural and historical enemies of all republics, 

open violence and insidious corruption.’’ 75

More recently, substantial curbs on state discretion have been 

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

Rhodes, 76 the Court struck down a complex state system which effectively limited access to the ballot to the electors of the two major 

parties. In the Court’s view, the system violated the equal protection clause of the Fourteenth Amendment because it favored some 

and disfavored others and burdened both the right of individuals 

to associate together to advance political beliefs and the right of 

qualified voters to cast ballots for electors of their choice. For the 

Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny. 77 Then, in Oregon

v. Mitchell, 78 the Court upheld the power of Congress to reduce the 

voting age in presidential elections 79 and to set a thirty-day 

durational residency period as a qualification for voting in presidential elections. 80 Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes, 81 is that the Fourteenth Amendment limits state 

discretion in prescribing the manner of selecting electors and that 

Congress in enforcing the Fourteenth Amendment 82 may override 

state practices which 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 reVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00019 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
452 ART. II—EXECUTIVE DEPARTMENT 

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

83 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’’). 84 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. 85 In re Green, 134 U.S. 377, 379-80 (1890). 86 United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). 

view 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. 83 Three Justices elaborated on this view in Bush v. 

Gore, 84 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 times as of which the number of electors shall be ascertained, 

and the days on which they shall be appointed and shall meet and 

vote in the States, and on which their votes shall be counted in 

Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of 

electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the 

course of proceeding in their opening and counting them.’’ 85 The

truth of the matter is that the electors are not ‘‘officers’’ at all, by 

the usual tests of office. 86 They have neither tenure nor salary, and 

ART. II—EXECUTIVE DEPARTMENT 453

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

87 Hawke v. Smith, 253 U.S. 221 (1920). 88 Burroughs and Cannon v. United States, 290 U.S. 534, 535 (1934). 89 Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and Cannon v. United 

States, 290 U.S. 534 (1934). 90 343 U.S. 214 (1952). 91 343 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). 92S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826). 93 All but the most recent instances are summarized in N. Pierce, supra, 122- 

124.

having performed their single function they cease to exist as electors.

This function is, moreover, ‘‘a federal function,’’ 87 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. 88

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. 89 But in Ray v. 

Blair, 90 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.’’ 91 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.’’ 92

Electors constitutionally remain free to cast their ballots for 

any person they wish and occasionally they have done so. 93 A recent instance occurred when a 1968 Republican elector in North 

Carolina chose to cast his vote not for Richard M. Nixon, who had 

won a plurality in the State, but for George Wallace, the independent candidate who had won the second greatest number of 

votes. Members of both the House of Representatives and of the 

Senate objected to counting that vote for Mr. Wallace and insisted 

454 ART. II—EXECUTIVE DEPARTMENT 

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

94 115 CONG. REC. 9-11, 145-171, 197-246 (1969). 95 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. 96 At least thirteen States do have statutes binding their electors, but none has 

been tested in the courts. 97 343 U.S. 214 (1952). 

that it should be counted for Mr. Nixon, but both bodies decided 

to count the vote as cast. 94

The power of either Congress 95 or of the States to enact legislation binding electors to vote for the candidate of the party on the 

ticket of which they run has been the subject of much argument. 96

It remains unsettled and the Supreme Court has touched on the 

issue only once and then tangentially. In Ray v. Blair, 97 the Court 

upheld, against a challenge of invalidity under the Twelfth Amendment, a rule of the Democratic Party of Alabama, acting under delegated power of the legislature, which required each candidate for 

the office of presidential elector to take a pledge to support the 

nominees of the party’s convention for President and Vice President. The state court had determined that the Twelfth Amendment, following language of Clause 3, required that electors be absolutely free to vote for anyone of their choice. Said Justice Reed 

for the Court: 

‘‘It is true that the Amendment says the electors shall vote by 

ballot. But it is also true that the Amendment does not prohibit an 

elector’s announcing his choice beforehand, pledging himself. The 

suggestion that in the early elections candidates for electors—contemporaries of the Founders—would have hesitated, because of 

constitutional limitations, to pledge themselves to support party 

nominees in the event of their selection as electors is impossible to 

accept. History teaches that the electors were expected to support 

the party nominees. Experts in the history of government recognize 

the longstanding practice. Indeed, more than twenty states do not 

print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for 

the presidential candidate of the national conventions to be counted 

as a vote for his party’s nominees for the electoral college. This 

long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for 

elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.’’ 

‘‘However, even if such promises of candidates for the electoral 

college are legally unenforceable because violative of an assumed 

constitutional freedom of the elector under the Constitution, Art. 

ART. II—EXECUTIVE DEPARTMENT 455

Sec. 1—The President Cl. 5—Qualifications 

98 343 U.S. at 228-31. 99 343 U.S. at 232-33. 

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.’’ 98 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.’’ 99

Clause 5. No Person except a natural born Citizen, or a 

Citizen of the United States, at the time of the Adoption of this 

Constitution, shall be eligible to the Office of President; neither 

shall any Person be eligible to that Office who shall not have 

attained to the Age of thirty five Years, and been Fourteen 

Years a Resident within the United States. 

456 ART. II—EXECUTIVE DEPARTMENT 

Sec. 1—The President Cl. 5—Qualifications 

100 8 U.S.C. § 1401. 101 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, 886-887 (1991), 

in which the Court declined to be bound by the language of the 25th Amendment 

in determining the meaning of ‘‘Heads of Departments’’ in the appointments clause. 

See also id. 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, 

702-703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent 

case in its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971). 102 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). 103 25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, § 3 (1709); 4 Geo. 2, ch. 21 (1731). 104See, e.g., Gordon, Who Can Be President of the United States: The Unresolved 

Enigma, 28 MD. L. REV. 1 (1968). 

QUALIFICATIONS

All Presidents since and including Martin Van Buren 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. 100 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. 101 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 . . . .’’ 102 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. 103 There is reason to believe, therefore, that the phrase 

includes persons who become citizens at birth by statute because 

of their status in being born abroad of American citizens. 104 Whether the Supreme Court would decide the issue should it ever arise 

ART. II—EXECUTIVE DEPARTMENT 457

Sec. 1—The President Cl. 7—Compensation and Emoluments 

105 E. Corwin, supra at 53-59, 344 n. 46. 

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, 105 a precedent which has been followed subsequently and which is now permanently settled by section 1 of the 

Twenty-fifth 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. 

458 ART. II—EXECUTIVE DEPARTMENT 

Sec. 1—The President Cl. 8—Oath of Office 

106 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. 107 Act of March 1, 1792, 1 Stat. 239, § 12. 108 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). 109 6 J. Richardson, supra at 25. 110 2 TRIAL OF ANDREW JOHNSON 200, 293, 296 (1868). 

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. 106

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, 107 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. 108 The idea next turned up 

in a message by President Lincoln justifying his suspension of the 

writ of habeas corpus without obtaining congressional authorization. 109 And counsel to President Johnson during his impeachment 

trial adverted to the theory, but only in passing. 110 Beyond these 

ART. II—EXECUTIVE DEPARTMENT 459

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

111May, 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. 112THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465. 

isolated instances, it does not appear to be seriously contended that 

the oath adds anything to the President’s powers. 

SECTION 2. Clause 1. The President shall be Commander in 

Chief of the Army and Navy of the United States, and of the 

Militia of the several States, when called into the actual 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. 111 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.’’ 112 Story wrote in 

his Commentaries: ‘‘The propriety of admitting the president to be 

460 ART. II—EXECUTIVE DEPARTMENT 

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

113 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1486 (1833). 114Fleming v. Page, 50 U.S. (9 How.) 603, 615, 618 (1850). 115 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). 116 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. 117 7 J. Richardson, supra at 3221, 3232. 118 67 U.S. (2 Bl.) 635 (1863). 

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.’’ 113 In 1850, Chief Justice Taney, for 

the Court, said: ‘‘His duty and his power are purely military. As 

commander-in-chief, he is authorized to direct the movements of 

the naval and military forces placed by law at his command, and 

to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile 

country, and subject it to the sovereignty and authority of the 

United States. But his conquests do not enlarge the boundaries of 

this Union, nor extend the operation of our institutions and laws 

beyond the limits before assigned to them by the legislative power.’’ 

‘‘. . . But in the distribution of political power between the great 

departments of government, there is such a wide difference between the power conferred on the President of the United States, 

and the authority and sovereignty which belong to the English 

crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in 

war, or any other subject where the rights and powers of the executive arm of the government are brought into question.’’ 114 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.’’ 115

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. 116 In his famous 

message to Congress of July 4, 1861, 117 Lincoln advanced the claim 

that the ‘‘war power’’ was his for the purpose of suppressing rebellion, and in the Prize Cases 118 of 1863 a divided Court sustained 

ART. II—EXECUTIVE DEPARTMENT 461

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

119 7 J. Richardson, supra at 3215, 3216, 3481. 

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

which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports. 119 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 degree of force the crisis demands.’ The proclamation 

of blockade is itself official and conclusive evidence to the Court 

462 ART. II—EXECUTIVE DEPARTMENT 

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

120 67 U.S. (2 Bl.) at 668-70. 121See generally, E. CORWIN, TOTAL WAR AND THE CONSTITUTION (1946). 122 12 Stat. 326 (1861). 123 J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118-139 (rev. ed. 

1951). 124 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). 

that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the 

case.’’ 120

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

brief, the powers claimable for the President under the Commander-in-Chief clause at a time of wide-spread insurrection were 

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

United States is engaged in a formally declared foreign war. 121

And since Lincoln performed various acts especially in the early 

months of the Civil War which, like increasing the Army and Navy, 

admittedly fell within the constitutional provinces of Congress, it 

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

Commander-in-Chiefship carried with it the power to exercise like 

powers practically at discretion, not merely in wartime but even at 

a time when war became a strong possibility. No attention was 

given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did, 122 with the exception 

of his suspension of the habeas corpus privilege, which was regarded by many as attributable to the President in the situation 

then existing, by virtue of his duty to take care that the laws be 

faithfully executed. 123 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. 124

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 

ART. II—EXECUTIVE DEPARTMENT 463

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

125 56 Stat. 23 (1942). 126 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. 127For 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.). 

Emergency Price Control Act of the previous January 30th, 125

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.’’ 126

Presidential War Agencies.—While congressional compliance 

with the President’s demand rendered unnecessary an effort on his 

part to amend the Price Control Act, there were other matters as 

to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances 

prior to it. Thus, in exercising both the powers which he claimed 

as Commander-in-Chief and those which Congress conferred upon 

him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, 

rather than the established departments or existing independent 

regulatory agencies. 127

464 ART. II—EXECUTIVE DEPARTMENT 

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

128 143 F.2d 145 (D.C. Cir. 1944). 129 143 F.2d at 149. 130 E. Corwin, supra at 244, 245, 459. 131 E.O. 9066, 7 FED. REG. 1407 (1942). 

Constitutional Status of Presidential Agencies.—The

question of the legal status of the presidential agencies was dealt 

with judicially but once. This was in the decision of the United 

States Court of Appeals of the District of Columbia in Employers

Group v. National War Labor Board, 128 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.’’ 129 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. 130

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. 131 Pursuant to this order, more than 112,000 residents of 

the Western States, all of Japanese descent and more than two out 

of every three of whom were natural-born citizens, were removed 

from their homes and herded into temporary camps and later into 

‘‘relocation centers’’ in several States. 

It was apparently the original intention of the Administration 

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

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132 56 Stat. 173 (1942). 133 Hirabayashi v. United States, 320 U.S. 81, 91-92 (1943). 134Korematsu 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. P. L. 100-383, 102 Stat. 903, 50 U.S.C. App. § 1989 et

seq. Reparations were approved, and each living survivor of the internment was to 

be compensated in an amount roughly approximating $20,000. 135 E.O. 8773, 6 Fed. Reg. 2777 (1941). 136 E. CORWIN, TOTAL WAR AND THE CONSTITUTION 47-48 (1946). 

tions. But before any action of importance was taken under the 

order, Congress ratified and adopted it by the Act of March 21, 

1942, 132 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.’’ 133 This question was answered in the 

affirmative, as was the similar question later raised by an exclusion order. 134

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. 135 Attorney General Jackson justified the seizure as growing out of the ‘‘duty constitutionally and inherently rested upon the President to exert his 

civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,’’ as well as ‘‘to 

obtain supplies for which Congress has appropriated the money, 

and which it has directed the President to obtain.’’ 136 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 

466 ART. II—EXECUTIVE DEPARTMENT 

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

137 7 Fed. Reg. 237 (1942). 138 57 Stat. 163 (1943). 139See Vanderbilt, War Powers and their Administration, in 1945 ANNUAL SURVEY OF AMERICAN LAW 254, 271-273 (N.Y. Univ.). 140 E.O. 9370, 8 Fed. Reg. 11463 (1943). 141 56 Stat. 23 (1942). 142 322 U.S. 398 (1944). 

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 . . . .’’ 137 In this field, too, Congress intervened by 

means of the War Labor Disputes Act of June 25, 1943, 138 which,

however, still left ample basis for presidential activity of a legislative character. 139

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. 140

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. 141 In Steuart & Bro. 

v. Bowles, 142 the Supreme Court had the opportunity to regularize 

this type of executive emergency legislation. Here, a retail dealer 

in fuel oil was charged with having violated a rationing order of 

OPA by obtaining large quantities of oil from its supplier without 

surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and 

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143 322 U.S. at 404-05. 144 E. Corwin, supra at 249-250. 145Proc. 2714, 12 Fed. Reg. 1 (1947). 146S.J. Res. 123, 61 Stat. 449 (1947). 

fer for the ensuing year. The offender conceded the validity of the 

rationing order in support of which the suspension order was 

issued but challenged the validity of the latter as imposing a penalty that Congress had not enacted and asked the district court to 

enjoin it. 

The court refused to do so and was sustained by the Supreme 

Court in its position. Said Justice Douglas, speaking for the Court: 

‘‘Without rationing, the fuel tanks of a few would be full; the fuel 

tanks of many would be empty. Some localities would have plenty; 

communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all 

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

and retailers—bent on defying the rationing system could raise 

havoc with it. . . . These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. 

From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas 

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

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

away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of 

war. . . . From the point of view of the factory owner from whom the 

materials were diverted the action would be harsh. . . . But in time 

of war the national interest cannot wait on individual claims to 

preference. Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce 

materials from wastage it is difficult to see why the same principle 

is not applicable to the distribution of fuel oil.’’ 143 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. 144

The Postwar Period.—The end of active hostilities did not 

terminate either the emergency or the federal-governmental response to it. President Truman proclaimed the termination of hostilities on December 31, 1946, 145 and Congress enacted a joint resolution which repealed a great variety of wartime statutes and set 

termination dates for others in July, 1947. 146 Signing the resolution, the President said that the emergencies declared in 1939 and 

468 ART. II—EXECUTIVE DEPARTMENT 

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

147Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948). 148 61 Stat. 193 (1947). 149 62 Stat. 604 (1948). 150Defense Production Act of 1950, 64 Stat. 798. 151 E.O. 10161, 15 Fed. Reg. 6105 (1950). 152 333 U.S. 138 (1948). 153 333 U.S. at 143-44. 154 333 U.S. at 146-47. 155 335 U.S. 160 (1948). 156See A. KELLY & W. HARBISON, THE AMERICAN CONSTITUTION—ITS ORIGINS

AND DEVELOPMENT ch. 31 (4th ed. 1970). 

1940 continued to exist and that it was ‘‘not possible at this time 

to provide for terminating all war and emergency powers.’’ 147 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 148 and continued the military 

draft. 149 With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy 

again, 150 and by executive order the President created agencies to 

exercise the power. 151 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., 152 the Court held constitutional the new rent control law on the ground that cessation 

of hostilities did not conclude the Government’s powers but that 

the power continued to remedy the evil arising out of the emergency. Yet, Justice Douglas noted for the Court that ‘‘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.’’ 153 Justice Jackson, while concurring, noted that 

he found the war power ‘‘the most dangerous one to free government in the whole catalogue of powers’’ and cautioned that its exercise should ‘‘be scrutinized with care.’’ 154 And in Ludecke v. Watkins, 155 four Justices were prepared to hold that the presumption 

in the statute under review of continued war with Germany was 

fiction and not to be utilized. 

But the postwar was a time of reaction against the wartime exercise of power by President Roosevelt, and President Truman was 

not permitted the same liberties. The Twenty-second Amendment, 

writing into permanent law the two-term custom, the ‘‘Great Debate’’ about our participation in NATO, the attempt to limit the 

treaty-making power, and other actions, bespoke the reaction. 156

The Supreme Court signalized this reaction when it struck down 

ART. II—EXECUTIVE DEPARTMENT 469

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

157 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 158 § 301(1), 55 Stat. 838, 839-840 (1941). 159 91 Stat. 1626, 50 U.S.C. §§ 1701-1706. 160 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. 161P. L. 94-412, 90 Stat. 1255 (1976). 

the President’s action in seizing the steel industry while it was 

struck during the Korean War. 157

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, 158 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, 159

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. 160 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. 161

Whether the balance of power between President and Congress 

shifted at all is not really a debatable question. 

The Cold War and After: Presidential Power To Use Troops 

Overseas Without Congressional Authorization 

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

course, and the necessities, real and only 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 

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470 ART. II—EXECUTIVE DEPARTMENT 

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

162See 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), 16-19 (Professor Bartlett).163See under Article I, § 8, cls. 11-14. 164 J. Clark, Memorandum by the Solicitor for the Department of State, in RIGHT

TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (1912). 165 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. 

can Republic, Lebanon, Grenada, Panama, and the Persian Gulf, 

and most notably Indochina. 162 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 163 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. 164 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. 165

New lists and revised arguments were published to support the 

actions of President Truman in sending troops to Korea and of 

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166 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 non-politically inspired doubt—of the President’s constitutional authority to do what he did. The basis for this conclusion in legal theory and 

historical precedent was fully set out in the State Department’s memorandum of 

July 3, 1950, extensively published. But the wisdom of the decision not to ask for 

congressional approval has been doubted... .’’ 

After discussing several reasons establishing the wisdom of the decision, the 

Secretary continued: ‘‘The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, 

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

prestige. This attitude would incline him strongly against any attempt to divert criticism from himself by action that might establish a precedent in derogation of presidential power to send our forces into battle. The memorandum that we prepared 

listed eighty-seven instances in the past century in which his predecessors had done 

this. And thus yet another decision was made.’’ D. ACHESON, PRESENT AT THE CREATION 414, 415 (1969). 

167War 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). 

nam and then to Indochina generally, 166 and new lists have been 

propounded. 167 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 

472 ART. II—EXECUTIVE DEPARTMENT 

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

168Of 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). 

169For 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). 170 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. 

interests and of the power of the President to deploy the military 

force of the United States without congressional authorization. 168

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. 169 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.’’ 170

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 

ART. II—EXECUTIVE DEPARTMENT 473

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

171Meeker, 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). 172 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). 

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

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

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

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

an armed attack against Viet Nam would endanger the peace and 

security of the United States.’’ 

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

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

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

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

Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.’’ 171

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. 172 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 

474 ART. II—EXECUTIVE DEPARTMENT 

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

173P.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. 

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). 174 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c). 175 Id. at § 1543(a). 176 Id. at § 1544(b). 177 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. 

Resolution, 173 designed to redistribute the war powers between the 

President and Congress. Although ambiguous in some respects, the 

Resolution appears to define restrictively the President’s powers, to 

require him to report fully to Congress upon the introduction of 

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

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

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

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

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

armed forces. 174 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. 175 The President is required to terminate the use 

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

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

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

certification to Congress of unavoidable military necessity respecting the safety of the troops. 176 Congress may through the passage 

of a concurrent resolution require the President to remove the 

troops sooner. 177 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 

ART. II—EXECUTIVE DEPARTMENT 475

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

178 50 U.S.C. § 1547(a). 179See 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). 180See 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). 

181P. L. 102-1, 105 Stat. 3. 182See, on proposals to amend and on congressional responsibility, J. ELY, WAR

AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH

(1993).

so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue. 178

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

unconstitutional infringement on presidential powers, and on each 

occasion of use abroad of United States troops the President in reporting to Congress has done so ‘‘consistent[ly] with’’ the reporting 

section but not pursuant to the provision. 179 Upon the invasion of 

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

last moment did the President seek authorization from Congress, 

he and his officials contending he had the power to act unilaterally. 180 Congress after intensive debate voted, 250 to 183 in the 

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

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

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

War Powers Resolution. 181

Although there is recurrent talk within Congress and without 

with regard to amending the War Powers Resolution to strengthen 

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

exists within Congress the resolve to exercise the responsibility 

concomitant with strengthening it. 182

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 

476 ART. II—EXECUTIVE DEPARTMENT 

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

183For 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). 184Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). 185Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. 

Eisentrager, 339 U.S. 763, 789 (1950). 186Totten v. United States, 92 U.S. 105 (1876). 187 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9 

Wall.) 32 (1869). 188Mitchell 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). 189 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. 190Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). 191Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230-231 (1901). 

he 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. 183 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.’’ 184 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. 185 He may employ secret agents to enter the enemy’s lines and obtain information as to its strength, resources, and movements. 186 He may, at 

least with the assent of Congress, authorize commercial intercourse 

with the enemy. 187 He may also requisition property and compel 

services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to 

render ‘‘just compensation.’’ 188 By the same warrant, he may bring 

hostilities to a conclusion by arranging an armistice, stipulating 

conditions which may determine to a great extent the ensuing 

peace. 189 He may not, however, affect a permanent acquisition of 

territory, 190 though he may govern recently acquired territory until 

Congress sets up a more permanent regime. 191

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192Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See

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

193 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary 

view is stated by Attorney General Wirt. 194 Ex parte Quirin, 317 U.S. 1, 28-29 (1942). 195General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; 

April 24, 1863. 196See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States 

v. Corson, 114 U.S. 619 (1885). 197 10 U.S.C. § 804. 198Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 

U.S. 541 (1922). 

ment of the forces, and which are enforced through courts-martial. 192 Indeed, until 1830, courts-martial were convened solely on 

the President’s authority as Commander-in-Chief. 193 Such rules 

and regulations are, moreover, it would seem, subject in wartime 

to his amendment at discretion. 194 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. 195 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 the advice and consent of the Senate, 

though undoubtedly Congress could if it wished vest their appointment in ‘‘the President alone.’’ 196 Also, the President’s power to dismiss an officer from the service, once unlimited, is today confined 

by statute in time of peace to dismissal ‘‘in pursuance of the sentence of a general court-martial or in mitigation thereof.’’ 197 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. 198 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 

478 ART. II—EXECUTIVE DEPARTMENT 

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

199Surrogate’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. 200 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). 201 Id. at 539-44. 

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, who is the regularly constituted organ of the President for 

the administration of the military establishment of the Nation, has 

been held by the Supreme Court of the United States to be merely 

a civilian officer, not in military service. (United States v. Burns,

79 U.S. 246 (1871)). On the general principle of civilian supremacy 

over the military, by virtue of the Constitution, it has recently been 

said: ‘The supremacy of the civil over the military is one of our 

great heritages.’ Duncan v. Kahanamoku, 327 U.S. 304, 325 

(1945).’’ 199

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; 200 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. 201 By the second theory, martial law can 

ART. II—EXECUTIVE DEPARTMENT 479

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

202 48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 

32-33 (1827). 203 48 U.S. (7 How.) at 45. 204 67 U.S. (2 Bl.) 635 (1863). 205 Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). 206 71 U.S. at 127. 

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 202 that state declarations of martial law were conclusive 

and therefore not subject to judicial review. 203 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, 204 while

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

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

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

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

theatre of active military operations, where war really prevails, 

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

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

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

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

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

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

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

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

also confined to the locality of actual war.’’ 206 Four Justices, speaking by Chief Justice Chase, while holding Milligan’s trial to have 

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

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

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

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

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

carrying on war. This power necessarily extends to all legislation 

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

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

480 ART. II—EXECUTIVE DEPARTMENT 

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

207 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. 208 212 U.S. 78 (1909). 209 212 U.S. at 83-85. 210 287 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. 

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

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

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

institutions.’’

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

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

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

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

portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States 

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

and offenses against the discipline or security of the army or 

against the public safety.’’ 207 In short, only Congress can authorize 

the substitution of military tribunals for civil tribunals for the trial 

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

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

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

Peabody 208 that ‘‘the Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff’s position 

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

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

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

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

had not reasonable ground for his belief.’’ 209 The ‘‘good faith’’ test 

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

Sterling v. Constantin, 210 where the Court made it very clear that 

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

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211 287 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). 212 31 Stat. 141, 153 (1900). 213Duncan v. Kahanamoku, 327 U.S. 304 (1946). 214 327 U.S. at 324. 215 327 U.S. at 336. 

vate 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.’’ 211

Martial Law in Hawaii.—The question of the constitutional 

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

suspending the writ of habeas corpus and conferring on the local 

commanding General of the Army all his own powers as governor 

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

the danger of invasion is removed.’’ Two days later the Governor’s 

action was approved by President Roosevelt. The regime which the 

proclamation set up continued with certain abatements until October 24, 1944. 

By section 67 of the Organic Act of April 30, 1900, 212 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, 213 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.’’ 214

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,’’ 215 but added 

482 ART. II—EXECUTIVE DEPARTMENT 

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

216 327 U.S. at 343. 217 Ex parte Quirin, 317 U.S. 1, 29-30, 35 (1942). 

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.’’ 216

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 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.’’ 217 The second argument it disposed of by showing that 

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

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218 317 U.S. at 41-42. 219 317 U.S. at 28-29. 220 In re Yamashita, 327 U.S. 1 (1946). 221 327 U.S. at 81. 222See Gross, The Criminality of Aggressive War, 41 AM. POL. SCI. REV. 205 

(1947).

tion of this position the trial of Major Andre. 218 The third contention the Court overruled by declining to draw the line between the 

powers of Congress and the President in the premises, 219 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. 

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

in General Yamashita’s case, 220 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.’’ 221 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. 222

484 ART. II—EXECUTIVE DEPARTMENT 

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

223 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. 

224 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. 

225The other instances were in domestic disturbances at the request of state 

Governors.

226Proc. 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). 

227Proc. 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). 

228Proc. 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). 

229Proc. 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). 

Martial Law and Domestic Disorder.—President Washington himself took command of state militia called into federal 

service to quell the Whiskey Rebellion, but there were not too 

many occasions subsequently in which federal troops or state militia called into federal service were required. 223 Since World War II, 

however, the President, by virtue of his own powers and the authority vested in him by Congress, 224 has utilized federal troops on 

nine occasions, five of them involving resistance to desegregation 

decrees in the South. 225 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. 226 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. 227 In June and September of 1964, 

President Johnson sent troops into Alabama to enforce court decrees opening schools to blacks. 228 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. 229

ART. II—EXECUTIVE DEPARTMENT 485

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

230 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). 231 E. Corwin, supra at 82. 232L. WHITE, THE FEDERALISTS—A STUDY IN ADMINISTRATIVE HISTORY ch. 4 

(1948). 233 E. Corwin, supra at 19, 61, 79-85, 211, 295-99, 312, 320-23, 490-93. 

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 council on the President. 230 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. 231 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, 232 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. 233

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, 

486 ART. II—EXECUTIVE DEPARTMENT 

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

234 United States v. Wilson, 32 U.S. (7 Pet.) 150, 160-61 (1833). 235 236 U.S. 79, 86 (1915). 236 236 U.S. at 90-91. 237 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. 238 Biddle v. Perovich, 274 U.S. 480, 486 (1927). 

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

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

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

validity of which delivery is essential, and delivery is not complete 

without acceptance. It may then be rejected by the person to whom 

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

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

be noticed judicially this deed must be pleaded, like any private instrument. 234

In the case of Burdick v. United States, 235 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 

. . . .’’ 236 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. 237 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.’’ 238 Whether these words sound the death knell of the acceptVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00054 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 487

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

239 Cf. W. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 73 (1941). 240 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. 241 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Cent. R.R. v. Bosworth, 133 U.S. 

92 (1890). 242 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). 243 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). 244See 1 J. Richardson, supra at 173, 293; 2 id. at 543; 7 id. at 3414, 3508; 8 

id. at 3853; 14 id. at 6690. 245 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). 

ance doctrine is perhaps doubtful. 239 They seem clearly to indicate 

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

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

substituted penalty is authorized by law and does not in common 

understanding exceed the original penalty. 240

Scope of the Power 

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

except cases of impeachment, and includes the power to remit 

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

the Treasury or paid an informer, 241 the power to pardon absolutely or conditionally, and the power to commute sentences, which, 

as seen above, is effective without the convict’s consent. 242 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. 243 It was early assumed that the power 

included the power to pardon specified classes or communities 

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

in 1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt—to Aguinaldo’s followers—in 1902. 244 Not, however, till 

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

in favor of presidential prerogative. 245

Offenses Against the United States; Contempt of Court.—

In the first place, contempt of court offenses are not offenses 

488 ART. II—EXECUTIVE DEPARTMENT 

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

246 Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867). 247F. MAITLAND, CONSTITUTIONAL HISTORY OF ENGLAND 302-306 (1920); 1 Ops. 

Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the commission of the offense. A pardon may precede the indictment or other beginning of the 

criminal proceeding, Ex parte Garland, 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). 248 267 U.S. 87 (1925). 249 267 U.S. at 110-11. 

against the United States. In the second place, they are completed 

offenses. 246 The President cannot pardon by anticipation, otherwise 

he would be invested with the power to dispense with the laws, his 

claim to which was the principal cause of James II’s forced abdication. 247 Lastly, the term has been held to include criminal 

contempts of court. Such was the holding in Ex parte Grossman, 248

where Chief Justice Taft, speaking for the Court, resorted once 

more to English conceptions as being authoritative in construing 

this clause of the Constitution. Said he: ‘‘The King of England before our Revolution, in the exercise of his prerogative, had always 

exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present 

day. In the mind of a common law lawyer of the eighteenth century 

the word pardon included within its scope the ending by the King’s 

grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both 

forms of trial for contempts were had. [Citing cases.] These cases 

also show that, long before our Constitution, a distinction had been 

recognized at common law between the effect of the King’s pardon 

to wipe out the effect of a sentence for contempt insofar as it had 

been imposed to punish the contemnor for violating the dignity of 

the court and the King, in the public interest, and its inefficacy to 

halt or interfere with the remedial part of the court’s order necessary to secure the rights of the injured suitor. Blackstone IV, 

285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 

553. The same distinction, nowadays referred to as the difference 

between civil and criminal contempts, is still maintained in English 

law.’’ 249 Nor was any new or special danger to be apprehended 

from this view of the pardoning power. ‘‘If,’’ said the Chief Justice, 

‘‘we could conjure up in our minds a President willing to paralyze 

courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?’’ Indeed, he queried further, in view 

of the peculiarities of procedure in contempt cases, ‘‘may it not be 

fairly said that in order to avoid possible mistake, undue prejudice 

or needless severity, the chance of pardon should exist at least as 

ART. II—EXECUTIVE DEPARTMENT 489

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

250 267 U.S. at 121, 122. 251 71 U.S. (4 Wall.) 333, 381 (1867). 252 71 U.S. at 380. 253 71 U.S. at 396-97. 254 233 U.S. 51 (1914). 

much in favor of a person convicted by a judge without a jury as 

in favor of one convicted in a jury trial?’’ 250

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

case is Ex parte Garland, 251 which was decided shortly after the 

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

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

he must take oath asserting that he had never voluntarily borne 

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

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

a Confederate sympathizer and so was unable to take the oath, had 

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

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

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

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

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

all the authorities concur. A pardon reaches both the punishment 

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

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

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

conviction, it removes the penalties and disabilities, and restores 

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

and gives him a new credit and capacity.’’ 252

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

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

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

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

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

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

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

are essential to admission to the bar.’’ 253 Justice Field’s language 

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

rendered in 1914 in the case of Carlesi v. New York. 254 Carlesi had 

been convicted several years before of committing a federal offense. 

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

490 ART. II—EXECUTIVE DEPARTMENT 

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

255 233 U.S. at 59. 256 142 U.S. 450 (1892). 

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

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

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

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

United States in punishing crimes against its authority to provide 

for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past 

offenses there had been a pardon granted.’’ 255

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

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

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

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

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

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

Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect. 256 But a pardon cannot 

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

suffered by the offender in his person by imprisonment, forced 

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

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

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

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

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

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

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

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

whom the law has assigned them, they cannot be subsequently 

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

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

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

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

ART. II—EXECUTIVE DEPARTMENT 491

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

257Knote v. United States, 95 U.S. 149, 153-154 (1877). 258 United States v. Klein, 80 U.S. (13 Wall.) 128, 143, 148 (1872). 259The Laura, 114 U.S. 411 (1885). 

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.’’ 257

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

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

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

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

their legal effect. This certainly impairs the executive authority 

and directs the Court to be instrumental to that end.’’ 258 On the 

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

may enact amnesty laws remitting penalties incurred under the national statutes. 259

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

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

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

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

Ambassadors, other public Ministers and Consuls, Judges of 

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

whose Appointments are not herein otherwise provided for, and 

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

Law vest the Appointment of such inferior Officers, as they 

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

in the Heads of Departments. 

492 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

260 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 183 

(rev. ed. 1937). 261 Id. at 538-39. 262 No. 64 (J. Cooke ed., 1961), 435-436. 263 31 ANNALS OF CONGRESS 106 (1818). 264Washington 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. 265 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). 266 E. Corwin, supra, at 428-429. 

THE TREATY-MAKING POWER 

President and Senate 

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

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

Ambassadors, and Judges of the Supreme Court.’’ 260 Not until September 7, ten days before the Convention’s final adjournment, was 

the President made a participant in these powers. 261 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. 262 Yet, so late as 1818 Rufus King, Senator from New 

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

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

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

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

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

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

President respecting the same, when, and under whatever other 

circumstances, they may think such advice expedient.’’ 263

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. 264 ‘‘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. 265

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

the President chooses to furnish it. 266 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 

ART. II—EXECUTIVE DEPARTMENT 493

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

267Treaties 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). 268 Cf. Art. I, § 5, cl. 1; see also Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 283- 

84 (1919). 269For instance, see S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 53 (2d ed. 1916); CRS Study, supra, 109-120. 270Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). See THE FEDERALIST No.

75 (J. Cooke ed. 1961), 504-505. 

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. 267 The act of ratification for the United States is 

the President’s act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators 

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

the Constitution to do business. 268 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. 269

Treaties as Law of the Land 

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

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

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

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

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

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

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

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

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

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

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

judicial department; and the legislature must execute the contract, 

before it can become a rule for the Court.’’ 270 To the same effect, 

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

494 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

271 112 U.S. 580, 598 (1884). 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. 272S. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT ch. 3. (2d ed. 

1916)273 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). 274 Id. at 588. 275 R. MORRIS, JOHN JAY, THE NATION, AND THE COURT 73-84 (1967). 276S. Crandall, supra, at 36-40. 277The 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 

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.’’ 271

Origin of the Conception.—How did this distinctive feature 

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

municipal law, thereby rendering them enforceable by the courts 

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

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

of the major weaknesses of the Articles of Confederation. Although 

the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’ promises was dependent on the state legislatures. 272 Particularly with regard to provisions of the Treaty of 

Peace of 1783, 273 in which Congress stipulated to protect the property rights of British creditors of American citizens and of the 

former Loyalists, 274 the promises were not only ignored but were 

deliberately flouted by many legislatures. 275 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. 276 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. 277

ART. II—EXECUTIVE DEPARTMENT 495

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

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. 278 9 W. HENING, STATUTES OF VIRGINIA 377-380 (1821). 279 3 U.S. (3 Dall.) 199 (1796). 280 3 U.S. at 236-37 (emphasis by Court). 281 7 U.S. (3 Cr.) 454 (1806). 282See the discussion and cases cited in Hauenstein v. Lynham, 100 U.S. 483, 

489-90 (1880). 283 100 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 

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

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

of treaties on state laws involved the same issue that had prompted the drafting of Article VI, paragraph 2. During the Revolutionary War, the Virginia legislature provided that the Commonwealth’s paper money, which was depreciating rapidly, was to be 

legal currency for the payment of debts and to confound creditors 

who would not accept the currency provided that Virginia citizens 

could pay into the state treasury debts owed by them to subjects 

of Great Britain, which money was to be used to prosecute the war, 

and that the auditor would give the debtor a certificate of payment 

which would discharge the debtor of all future obligations to the 

creditor. 278 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 279 the Court struck 

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

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

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

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

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

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

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

individual State; and their will alone is to decide.’’ 280

In Hopkirk v. Bell, 281 the Court further held that this same 

treaty provision prevented the operation of a Virginia statute of 

limitation to bar collection of antecedent debts. In numerous subsequent cases, the Court invariably ruled that treaty provisions superseded inconsistent state laws governing the right of aliens to inherit real estate. 282 Such a case was Hauenstein v. Lynham, 283 in

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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. 284See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. Kidd, 254 U.S. 

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

187 (1961). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a state statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok 

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

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

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

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

afforded to native resident relatives. Maiorano v. Baltimore & Ohio R.R., 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). 285Terrace v. Thompson, 263 U.S. 197 (1923). 286 332 U.S. 633 (1948). See also Takahashi v. Fish 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.287This 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. 

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. 284

Certain more recent cases stem from California legislation, 

most of it directed against Japanese immigrants. A statute which 

excluded aliens ineligible to American citizenship from owning real 

estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed. 285 But in Oyama v. California, 286 a majority of the Court indicated a strongly held opinion 

that this legislation conflicted with the equal protection clause of 

the Fourteenth Amendment, a view which has since received the 

endorsement of the California Supreme Court by a narrow majority. 287 Meantime, California was informed that the rights of GerVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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288 Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. Oregon, 366 U.S. 

187 (1961). 289 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 392-394 

(rev. ed. 1937). 290Supra, ‘‘Treaties as Law of the Land’’. 291 27 U.S. (2 Pet.) 253, 314 (1829). 292 Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ‘‘When the stipulations 

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

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

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

and effect of a legislative enactment.’’ S. Crandall, supra, chs. 11-15. 293See infra, ‘‘When Is a Treaty Self-Executing’’. 294 8 Stat. 116 (1794). 295The story is told in numerous sources. E.g., 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. 

man 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. 288

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. 289 But the years since have 

seen numerous controversies with regard to the duties and obligations of Congress, the necessity for congressional action, and the effects of statutes, in connection with the treaty power. For purposes 

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

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

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

The language quoted above 290 from Foster v. Neilson 291 early established that not all treaties are self-executing, for as Marshall 

there said, a treaty is ‘‘to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.’’ 292

Leaving aside the question when a treaty is and is not self-executing, 293 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, 294 certain provisions of which required appropriations to carry them into effect. In view of the third clause of 

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

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

it seems to have been universally conceded that Congress must be 

applied to if the treaty provisions were to be executed. 295 A bill was 

introduced into the House to appropriate the needed funds and its 

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296Debate 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 UNITES STATES 35-59 (1960). 297 5 ANNALS OF CONGRESS 771, 782 (1796). A resolution similar in language 

was adopted by the House in 1871. CONG. GLOBE, 42d Congress, 1st sess. (1871), 

835.298S. 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). 299S. Crandall, supra, at 183-199. 300 8 Stat. 228. 301 3 Stat. 255 (1816). See S. Crandall, supra, at 184-188. 

supporters, within and without Congress, offered the contention 

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

complete discretion whether or not to carry into effect treaty provisions. 296 At the conclusion of the debate, the House voted not only 

the money but a resolution offered by Madison stating that it did 

not claim any agency in the treaty-making process, ‘‘but that when 

a treaty stipulates regulations on any of the subjects submitted by 

the Constitution to the power of Congress, it must depend for its 

execution as to such stipulations on a law or laws to be passed by 

Congress, and it is the constitutional right and duty of the House 

of Representatives in all such cases to deliberate on the expediency 

or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive 

to the public good.’’ 297 This early precedent with regard to appropriations has apparently been uniformly adhered to. 298

Similarly, with regard to treaties which modify and change 

commercial tariff arrangements, the practice has been that the 

House always insisted on and the Senate acquiesced in legislation 

to carry into effect the provisions of such treaties. 299 The earliest 

congressional dispute came over an 1815 Convention with Great 

Britain, 300 which provided for reciprocal reduction of duties. President Madison thereupon recommended to Congress such legislation 

as the convention might require for effectuation. The Senate and 

some members of the House were of the view that no implementing 

legislation was necessary because of a statute, which already permitted the President to reduce duties on goods of nations that did 

not discriminate against United States goods; the House majority 

felt otherwise and compromise legislation was finally enacted acceptable to both points of view. 301 But subsequent cases have seen 

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302 Id. at 188-195; 1 W. Willoughby, supra, at 555-560. 303S. Crandall, supra, at 189-190. 304 Anderson, The Extent and Limitations of the Treaty-Making Power, 1 AM. J. 

INT’L L. 636, 641 (1907). 

305 At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was 

bound to provide, but did not indicate what in their opinion made some treaties selfexecuting and others not. 29 ANNALS OF CONGRESS 160 (1816). The House conferees 

observed that they thought, and that in their opinion the Senate conferees agreed, 

that legislative implementation was necessary to carry into effect all treaties which 

contained ‘‘stipulations requiring appropriations, or which might bind the nation to 

lay taxes, to raise armies, to support navies, to grant subsidies, to create States, 

or to cede territory... .’’ Id. 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). 306T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 175 (3d ed. 1898); 

Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 353-356 (1922). 

legislation enacted, 302 the Senate once refused ratification of a 

treaty, which purported to reduce statutorily-determined duties, 303

and congressional enactment of authority for the President to negotiate reciprocal trade agreements all seem to point to the necessity 

of some form of congressional implementation. 

What other treaty provisions need congressional implementation is subject to argument. In a 1907 memorandum approved by 

the Secretary of State, it is said, in summary of the practice and 

reasoning from the text of the Constitution, that the limitations on 

the treaty power which necessitate legislative implementation may 

‘‘be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government 

the exercise of certain of the delegated powers. . . .’’ 304 The same 

thought has been expressed in Congress 305 and by commentators. 306 Resolution of the issue seems particularly one for the attention of the legislative and executive branches rather than for the 

courts.

Congressional Repeal of Treaties.—It is in respect to his 

contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, 

that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned 

to the question: What happens when a treaty provision and an act 

of Congress conflict? The answer is, that neither has any intrinsic 

superiority over the other and that therefore the one of later date 

will prevail leges posteriores priores contrarias abrogant. In short, 

500 ART. II—EXECUTIVE DEPARTMENT 

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307 Head Money Cases, 112 U.S. 580, 598-599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 

1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially 

in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United 

States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 

1855). See also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States 

v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 

130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney 

v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 

698, 721 (1893). ‘‘Congress by legislation, and so far as the people and authorities 

of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved 

by the Senate.’’ La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 

(1899). Cf. Reichart v. Felps, 73 U.S. (6 Wall.) 160, 165-166 (1868), wherein it is 

stated obiter that ‘‘Congress is bound to regard the public treaties, and it had no 

power . . . to nullify [Indian] titles confirmed many years before... .’’ 308Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829). In a later case, it was 

determined in a different situation that by its terms the treaty in issue, which had 

been assumed to be executory in the earlier case, was self-executing. United States 

v. Percheman, 32 U.S. (7 Pet.) 51 (1833). 309 E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220-221 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 

320-321 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888). 

the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such 

case, as the Court has said: ‘‘Its infraction becomes the subject of 

international negotiations and reclamations, so far as the injured 

party chooses to seek redress, which may in the end be enforced 

by actual war. It is obvious that with all this the judicial courts 

have nothing to do and can give no redress.’’ 307

Treaties Versus Prior Acts of Congress.—The cases are numerous in which the Court has enforced statutory provisions which 

were recognized by it as superseding prior treaty engagements. 

Chief Justice Marshall early asserted that the converse would be 

true as well, 308 that a treaty which is self-executing is the law of 

the land and prevails over an earlier inconsistent statute, a proposition repeated many times in dicta. 309 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, says: ‘‘In 

fact, however, there have been few (the writer is not certain that 

there has been any) instances in which a treaty inconsistent with 

a prior act of Congress has been given full force and effect as law 

in this country without the assent of Congress. There may indeed 

have been cases in which, by treaty, certain action has been taken 

without reference to existing Federal laws, as, for example, where 

by treaty certain populations have been collectively naturalized, 

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310 1 W. Willoughby, supra, at 555. 311Other 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. And see Charlton v. Kelly, 229 U.S. 447 (1913). 312 288 U.S. 102 (1933). 313 42 Stat. 858, 979, § 581. 314 46 Stat. 590, 747, § 581. 315 United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801). 316 27 U.S. (2 Pet.) 253, 314-15 (1829). 

but such treaty action has not operated to repeal or annul the existing law upon the subject.’’ 310

The one instance that may be an exception 311 is Cook v. United 

States. 312 There, a divided Court held that a 1924 treaty with 

Great Britain, allowing the inspection of English vessels for contraband liquor and seizure if any was found only if such vessels were 

within the distance from the coast that could be traversed in one 

hour by the vessel suspecting of endeavoring to violate the prohibition laws, had superseded the authority conferred by a section of 

the Tariff Act of 1922 313 for Coast Guard officers to inspect and 

seize any vessel within four leagues—12 miles—of the coast under 

like circumstances. The difficulty with the case is that the Tariff 

Act provision had been reenacted in 1930, 314 so that a simple application of the rule of the later governing should have caused a 

different result. It may be suspected that the low estate to which 

Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld were more 

than slightly influential in the Court’s decision. 

When Is a Treaty Self-Executing.—Several references have 

been made above to a distinction between treaties as self-executing 

and as merely executory. But what is it about a treaty that makes 

it the law of the land and which gives a private citizen the right 

to rely on it in a court of law? As early as 1801, the Supreme Court 

took notice of a treaty, and finding it applicable to the situation before it, gave judgment for the petitioner based on it. 315 In Foster

v. Neilson, 316 Chief Justice Marshall explained that a treaty is to 

be regarded in courts ‘‘as equivalent to an act of the legislature, 

whenever it operates of itself, without the aid of any legislative 

provision.’’ It appears thus that the Court has had in mind two 

characteristics of treaties which keep them from being self-executing. First, ‘‘when the terms of the stipulation import a conVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00069 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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317 Id. 318Generally, the qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to 

the former, it has always apparently been the practice to insert in treaties affecting 

the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by 

Congress. 1 W. Willoughby, 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. 319Q. Wright, supra, at 207-208. See also L. HENKIN, FOREIGN AFFAIRS AND THE

CONSTITUTION 156-162 (1972). 

tract—when either of the parties engages to perform a particular 

act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it 

can become a rule for the Court.’’ 317 In other words, the treaty 

itself may by its terms require implementation, as by an express 

stipulation for legislative execution. 318

Second, the nature of the stipulation may require legislative 

execution. That is, with regard to the issue discussed above, whether the delegated powers of Congress impose any limitation on the 

treaty power, it may be that a treaty provision will be incapable 

of execution without legislative action. As one authority says: 

‘‘Practically this distinction depends upon whether or not the courts 

and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities... .’’ 

‘‘Treaty provisions which define the rights and obligations of 

private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto 

are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .’’ 

‘‘On the other hand certain treaty obligations are addressed 

solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent 

treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of 

buildings, bridges, lighthouses, etc.’’ 319 It may well be that these 

two characteristics merge with each other at many points and the 

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320Thus, compare Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-315 (1829), 

with Cook v. United States, 288 U.S. 102, 118-19 (1933). 

321 Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614. 322See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are 

given. The supplementary legislation, later reenacted at Rev. Stat. 4083-4091, was 

repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross 

case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957). 323 18 U.S.C. §§ 3181-3195. 324 Baldwin v. Franks, 120 U.S. 678, 683 (1887). 325 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), in the following words: ‘‘Treaties made between the United States and 

language of the Court is not always helpful in distinguishing 

them. 320

Treaties and the Necessary and Proper Clause.—What

power, or powers, does Congress exercise when it enacts legislation 

for the purpose of carrying treaties of the United States into effect? 

When the subject matter of the treaty falls within the ambit of 

Congress’ enumerated powers, then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals 

with a subject which falls within the national jurisdiction because 

of its international character, then recourse is had to the necessary 

and proper clause. Thus, of itself, Congress would have had no 

power to confer judicial powers upon foreign consuls in the United 

States, but the treaty-power can do this and has done it repeatedly 

and Congress has supplemented these treaties by appropriate legislation. 321 Congress could not confer judicial power upon American 

consuls abroad to be there exercised over American citizens, but 

the treaty-power can and has, and Congress has passed legislation 

perfecting such agreements, and such legislation has been 

upheld. 322

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. 323 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. 324 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.’’ 325 In a word, the treaty-power cannot 

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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 treatymaking power is neither a right nor a duty, but one of the powers ‘‘vested by this 

Constitution in the Government of the United States.’’ Art. I, § 8, cl. 18. 326 252 U.S. 416 (1920). 327 39 Stat. 1702 (1916). 328 40 Stat. 755 (1918). 329 United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. 

McCullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether 

those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). 

Today, there seems no doubt that Congress’ power under the commerce clause 

would be deemed more than adequate, but at that time a majority of the Court had 

a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 

251 (1918). 330Missouri v. Holland, 252 U.S. 416, 432 (1920). 331 252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188 

U.S. 14, 33 (1903). 

purport to amend the Constitution by adding to the list of Congress’ enumerated powers, but having acted, the consequence will 

often be that it has provided Congress with an opportunity to enact 

measures which independently of a treaty Congress could not pass; 

the only question that can be raised as to such measures is whether they are ‘‘necessary and proper’’ measures for the carrying of the 

treaty in question into operation. 

The foremost example of this interpretation is Missouri v. Holland. 326 There, the United States and Great Britain had entered 

into a treaty for the protection of migratory birds, 327 and Congress 

had enacted legislation pursuant to the treaty to effectuate it. 328

The State objected that such regulation was reserved to the States 

by the Tenth Amendment and that the statute infringed on this 

reservation, pointing to lower court decisions voiding an earlier act 

not based on a treaty. 329 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.’’ 330 ‘‘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.’’ 331 Since the treaty and thus the statVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00072 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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332Whitney v. Robertson, 124 U.S. 190, 194 (1888). 333 ‘‘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). 334 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 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). 335 Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca 

v. Thompson, 223 U.S. 317 (1912). 336 252 U.S. 416 (1920). 337 252 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. 

ute dealt with a matter of national and international concern, the 

treaty was proper and the statute was one ‘‘necessary and proper’’ 

to effectuate the treaty. 

Constitutional Limitations on the Treaty Power 

A question growing out of the discussion above is whether the 

treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ‘‘are declared . . . to be 

the supreme law of the land, and no superior efficacy is given to 

either over the other.’’ 332 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. 333 It does not appear that 

the Court has ever held a treaty unconstitutional, 334 although

there are examples in which decision was seemingly based on a 

reading compelled by constitutional considerations. 335 In fact, there 

would be little argument with regard to the general point were it 

not for certain dicta in Justice Holmes’ opinion in Missouri v. Holland. 336 ‘‘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 . . . ,’’ 337 the Justice’s lanVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00073 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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338The 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); Hearings on S.J. Res. 1: Before a Subcommittee of the Senate Judiciary 

Committee, 84th Congress, 1st Sess. (1955). See L. Henkin, supra, at 383-85. 339 354 U.S. 1 (1957) (plurality opinion). 340 354 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. 

guage 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. 338

Controversy over the Holmes language apparently led Justice 

Black in Reid v. Covert 339 to deny that the difference in language 

of the supremacy clause with regard to statutes and with regard 

to treaties was relevant to the status of treaties as inferior to the 

Constitution. ‘‘There is nothing in this language which intimates 

that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied 

the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it 

clear that the reason treaties were not limited to those made in 

‘pursuance’ of the Constitution was so that agreements made by 

the United States under the Articles of Confederation, including 

the important treaties which concluded the Revolutionary War, 

would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who 

were responsible for the Bill of Rights—let alone alien to our entire 

constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international 

agreement without observing constitutional prohibitions. In effect, 

such construction would permit amendment of that document in a 

manner not sanctioned by Article V.’’ 340

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 

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341Ware 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). 342Missouri v. Holland, 252 U.S. 416 (1920). 343 252 U.S. at 433. 344 252 U.S. at 435. 345 1 W. Willoughby, supra, at 569. And see L. Henkin, supra, at 143-148; Restatement, Foreign Relations, § 302, Comment d, & Reporters’ Note 3, pp. 154-157. 

the supremacy clause, it is hardly surprising that this argument 

has not prevailed. 341 Nevertheless, the issue, in the context of Congress’ power under the necessary and proper clause to effectuate a 

treaty dealing with a subject arguably within the domain of the 

States, was presented as recently as 1920, when the Court upheld 

a treaty and implementing statute providing for the protection of 

migratory birds. 342 ‘‘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.’’ 343 The gist of the holding 

followed. ‘‘Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in 

concert with that of another power. The subject-matter is only 

transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds 

for any powers to deal with. We see nothing in the Constitution 

that compels the Government to sit by while a food supply is cut 

off and the protectors of our forests and our crops are destroyed.’’ 344

The doctrine which seems deducible from this case and others 

is ‘‘that in all that properly relates to matters of international 

rights and obligations, whether these rights and obligations rest 

upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses 

all the powers of a constitutionally centralized sovereign State; 

and, therefore, that when the necessity from the international 

standpoint arises the treaty power may be exercised, even though 

thereby the rights ordinarily reserved to the States are invaded.’’ 345 It is not, in other words, the treaty power which enlarges either the federal power or the congressional power, but the 

508 ART. II—EXECUTIVE DEPARTMENT 

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346 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. 347Q. Wright, supra, at 101-103. See also, L. Henkin, supra, at 148-151. 348 Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v. Riggs, 133 U.S. 258, 

267 (1890). 349 ‘‘[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). 350 Cf. L. Henkin, supra, at 151-56. 351Other reservations which have been expressed may be briefly noted. It has 

been contended that the territory of a State could not be ceded without such State’s 

international character of the interest concerned which might be 

acted upon. 

Dicta in some of the cases lend support to the argument that 

the treaty power is limited by the delegation of powers among the 

branches of the National Government 346 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; 347 if it is meant that treaty provisions dealing with 

matters delegated to Congress must, in order to become the law of 

the land, receive the assent of Congress through implementing legislation, it states not a limitation on the power of making treaties 

as international conventions but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them. 

It has also been suggested that the prohibitions against governmental action contained in the Constitution, the Bill of Rights 

particularly, limit the exercise of the treaty power. No doubt this 

is true, though again there are no cases which so hold. 348

One other limitation of sorts may be contained in the language 

of certain court decisions which seem to say that only matters of 

‘‘international concern’’ may be the subject of treaty negotiations. 349 While this may appear to be a limitation, it does not take 

account of the elasticity of the concept of ‘‘international concern’’ by 

which the subject matter of treaties has constantly expanded over 

the years. 350 At best, any attempted resolution of the issue of limitations must be an uneasy one. 351

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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 while foreign territory can be annexed to the 

United States by the treaty power, it could not be incorporated with the United 

States except with the consent of Congress. Downes v. Bidwell, 182 U.S. 244, 310- 

344 (1901) (four Justices dissenting). This argument appears to be a variation of the 

one in regard to the correct procedure to give domestic effect to treaties. 

Another argument grew out the XII Hague Convention of 1907, proposing an 

International Prize Court with appellate jurisdiction from national courts in prize 

cases. President Taft objected that no treaty could transfer to a tribunal not known 

to the Constitution any part of the judicial power of the United States and a compromise was arranged. Q. Wright, supra, at 117-118; H. REP. NO. 1569, 68th Congress, 2d Sess. (1925). 352 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). 353 1 Stat. 578 (1798). 354 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. 

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 352

leaves little room for the notion of a limited treaty-making power 

with regard to the reserved rights of the States or in regard to the 

choice of matters concerning which the Federal Government may 

treat with other nations; protected individual rights appear to be 

sheltered by specific constitutional guarantees from the domestic 

effects of treaties, and the separation of powers at the federal level 

may require legislative action to give municipal effect to international agreements. 

Interpretation and Termination of Treaties as International 

Compacts

The repeal by Congress of the ‘‘self-executing’’ clauses of a treaty as ‘‘law of the land’’ does not of itself terminate the treaty as 

an international contract, although it may very well provoke the 

other party to the treaty to do so. Hence, the questions arise where 

the Constitution lodges this power and where it lodges the power 

to interpret the contractual provisions of treaties. The first case of 

outright abrogation of a treaty by the United States occurred in 

1798, when Congress by the Act of July 7 of that year, pronounced 

the United States freed and exonerated from the stipulations of the 

Treaties of 1778 with France. 353 This act was followed two days 

later by one authorizing limited hostilities against the same country; in the case of Bas v. Tingy, 354 the Supreme Court treated the 

act of abrogation as simply one of a bundle of acts declaring ‘‘public 

war’’ upon the French Republic. 

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355The 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). 

356 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). 

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? 355 Reasonable arguments may be made locating the power in the President alone, 

in the President and Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them 

under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the 

Senate for making a treaty, one can logically argue that its consent 

is as well required for terminating it. Finally, because treaties are, 

like statutes, the supreme law of the land, it may well be argued 

that, again like statutes, they may be undone only through lawmaking by the entire Congress; additionally, since Congress may be 

required to implement treaties and may displace them through legislation, this argument is reenforced. 

Definitive resolution of this argument appears only remotely 

possible. Historical practice provides support for all three arguments and the judicial branch seems unlikely to essay any answer. 

While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a 

public law, many instances may be cited of congressional actions 

mandating terminations by notice of the President or changing the 

legal environment so that the President is required to terminate. 

The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846, 356

when by joint resolution Congress authorized the President at his 

discretion to notify the British government of the abrogation of the 

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357S. Crandall, supra, at 458-459. 358 Id. at 459-62; Q. Wright, supra, at 258. 359 38 Stat. 1164 (1915). 360S. Crandall, supra, at 460. See Van der Weyde v. Ocean Transp. Co., 297 U. 

S. 114 (1936). 361 41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 AM. J. INT’L. L. 33 (1921). In 1879, Congress passed a resolution requiring 

the President to abrogate a treaty with China, but President Hayes vetoed it, partly 

on the ground that Congress as an entity had no role to play in ending treaties, 

only the President with the advice and consent of the Senate. 9 J. Richardson, supra 

at 4466, 4470-4471. For the views of President Taft on the matter in context, 

see W. TAFT, THE PRESIDENCY, ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES AND ITS

LIMITATIONS 112-113 (1916). 362Since this time, very few instances appear in which Congress has requested 

or directed termination by notice, but they have resulted in compliance. E.g., 65 

Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain 

Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example 

appears to be § 313 of the Anti-Apartheid Act of 1986, which required the Secretary 

of State to terminate immediately, in accordance with its terms, the tax treaty and 

protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L. 

99-440, 100 Stat. 3515, 22 U.S.C. § 5063. 

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. 357 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. 358 By the La FolletteFuruseth Seaman’s Act, 359 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. 360 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.’’ 361 The same attitude toward section 34 was continued by 

Presidents Harding and Coolidge. 362

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 reVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00079 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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363 5 J. Richardson, supra at 279, 334. 364S. 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. 365 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. 366 13 Stat. 568 (1865). 367The 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. 368 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). 369 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). 

ceived Senate approval to terminate a treaty with Denmark. 363

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. 364

Examples of treaty terminations in which the President acted 

alone are much disputed with respect both to facts and to the underlying legal circumstances. 365 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. 366 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. 367

Other such renunciations by the President acting on his own have 

been similarly explained and similarly the explanations have been 

controverted. While the Department of State, in setting forth legal 

justification for President Carter’s notice of termination of the treaty with Taiwan, cited many examples of the President acting alone, 

many of these are ambiguous and may be explained away by, i.e., 

conflicts with later statutes, changed circumstances, or the like. 368

No such ambiguity accompanied President Carter’s action on 

the Taiwan treaty, 369 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 

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370Originally, 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). 371Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because 

of the political question doctrine, id. 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. 372 Cf. Baker v. Carr, 369 U.S. 186, 211-13, 217 (1962). 373 229 U.S. 447 (1913). 374 229 U.S. at 473-76. 

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. 370 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. 371 While no opinion of the Court bars future litigation, it appears that the political question doctrine or 

some other rule of judicial restraint will leave such disputes to the 

contending forces of the political branches. 372

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 

opinion in Charlton v. Kelly 373 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 

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375 Clark v. Allen, 331 U.S. 503 (1947). 376 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855). 377 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. 378 30 U.S. (5 Pet.) 1 (1831). 379 31 U.S. (6 Pet.) 515 (1832). 

ments 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. 375

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: 376 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 system of government.’’ Chief Justice Marshall’s 

language in Foster v. Neilson 377 is to the same effect. 

Indian Treaties 

In the early cases of Cherokee Nation v. Georgia, 378 and

Worcester v. Georgia, 379 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign 

state within the meaning of that clause of the Constitution which 

extends the judicial power of the United States to controversies 

‘‘between a State or the citizens thereof and foreign states, citizens 

or subjects.’’ Second, it held: ‘‘The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme 

law of the land, had adopted and sanctioned the previous treaties 

with the Indian nations, and consequently admits their rank 

among those powers who are capable of making treaties. The words 

‘treaty’ and ‘nation’ are words of our own language, selected in our 

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380 31 U.S. at 558. 381 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). 382The New York Indians, 72 U.S. (5 Wall.) 761 (1867). 383The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1867). 384 United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876). 385The 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). 386 16 Stat. 566; Rev. Stat. § 2079, now contained in 25 U.S.C. § 71. 387Ward v. Race Horse, 163 U.S. 504 (1896). 388Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 389 Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641 (1890). 390The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871). 

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.’’ 380

Later cases established that the power to make treaties with 

the Indian tribes was coextensive with the power to make treaties 

with foreign nations, 381 that the States were incompetent to interfere with rights created by such treaties, 382 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, 383 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, 384 and that an act of Congress contrary to a prior Indian treaty repealed it. 385

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.’’ 386 Subsequently, the power 

of Congress to withdraw or modify tribal rights previously granted 

by treaty has been invariably upheld. 387 Statutes modifying rights 

of members in tribal lands, 388 granting a right of way for a railroad 

through lands ceded by treaty to an Indian tribe, 389 or extending 

the application of revenue laws respecting liquor and tobacco over 

Indian territories, despite an earlier treaty exemption, 390 have

been sustained. 

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391 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). 392 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, 570-572 (1840). And note the 

discussion in Weinberger v. Rossi, 456 U.S. 25, 28-32 (1982). 

When, on the other hand, definite property rights have been 

conferred upon individual Native Americans, whether by treaty or 

under an act of Congress, they are protected by the Constitution 

to the same extent and in the same way as the private rights of 

other residents or citizens of the United States. Hence it was held 

that certain Indian allottees under an agreement according to 

which, in part consideration of their relinquishment of all their 

claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, 

acquired vested rights of exemption from State taxation which were 

protected by the Fifth Amendment against abrogation by Congress. 391

A regular staple of each Term’s docket of the Court is one or 

two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the States. Thus, though no treaties have been negotiated 

for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on. 

INTERNATIONAL AGREEMENTS WITHOUT SENATE 

APPROVAL

The capacity of the United States to enter into agreements 

with other nations is not exhausted in the treaty-making power. 

The Constitution recognizes a distinction between ‘‘treaties’’ and 

‘‘agreements’’ or ‘‘compacts’’ but does not indicate what the difference is. 392 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 

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393 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. 394One authority concluded that of the executive agreements entered into between 1938 and 1957, only 5.9 percent were based exclusively on the President’s 

constitutional authority. McLaughlin, The Scope of the Treaty Power in the United 

States—II, 43 MINN. L. REV. 651, 721 (1959). Another, somewhat overlapping study 

found that in the period 1946-1972, 88.3% of executive agreements were based at 

least in part on statutory authority; 6.2% were based on treaties, and 5.5% were 

based solely on executive authority. International Agreements: An Analysis of Executive Regulations and Practices, Senate Committee on Foreign Relations, 95th Cong., 

1st Sess. (Comm. Print) (1977), 22 (prepared by CRS). 395 ‘‘[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 Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (Pts. I & II), 54 YALE L. J. 181, 534 (1945). 

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. 393

One must, of course, interpret the raw figures carefully. Only 

a very small minority of all the executive agreements entered into 

were based solely on the powers of the President as Commanderin-Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate. 394 Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation 

among the kinds of agreements which are classed under this single 

heading. 395

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 

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396 1 Stat. 138 (1790). See E. Byrd, supra at 53 n.146. 397W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 41 (1941). 398 Id. at 38-40. The statute was 1 Stat. 232, 239, 26 (1792). 399McClure at 62-70. 400 Id. at 78-81; S. Crandall, supra at 127-31; see CRS Study, supra at 52-55. 401 Id. at 121-27; W. McClure, supra at 83-92, 173-89. 402 Id. at 8, 59-60. 403 § 3, 26 Stat. 567, 612. 404Tariff Act of 1897, § 3, 30 Stat. 15, 203; Tariff Act of 1909, 36 Stat. 11, 82. 405 48 Stat. 943, § 350(a), 19 U.S.C. §§ 1351-1354. 406See 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. 407 143 U.S. 649 (1892). 

countries 396 and appropriating money to pay off the government of 

Algiers to prevent pirate attacks on United States shipping. 397 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.’’ 398 Congress has also approved, usually by resolution, other executive agreements, such as 

the annexing of Texas and Hawaii and the acquisition of Samoa. 399

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. 400

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. 401

Such agreements in the form of treaties providing for the reciprocal 

reduction of duties subject to implementation by Congress were frequently entered into, 402 but beginning with the Tariff Act of 

1890, 403 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. 404

Then, in the Reciprocal Trade Agreements Act of 1934, 405 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. 406

The Constitutionality of Trade Agreements.—In Field v. 

Clark, 407 legislation conferring authority on the President to conclude trade agreements was sustained against the objection that it 

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408 143 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’ failure to set aside the asserted power. Also

see Weinberger v. Rossi, 456 U.S. 25, 29-30 n.6 (1982). 

409 224 U.S. 583 (1912). 410 224 U.S. at 601. 

attempted an unconstitutional delegation ‘‘of both legislative and 

treaty-making powers.’’ The Court met the first objection with an 

extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with 

a curt rejection: ‘‘What has been said is equally applicable to the 

objection that the third section of the act invests the President with 

treaty-making power. The Court is of opinion that the third section 

of the act of October 1, 1890, is not liable to the objection that it 

transfers legislative and treaty-making power to the President.’’ 408

Although two Justices disagreed, the question has never been revived. However, in B. Altman & Co. v. United States, 409 decided

twenty years later, a collateral question was passed upon. This was 

whether an act of Congress which gave the federal circuit courts 

of appeal jurisdiction of cases in which ‘‘the validity or construction 

of any treaty . . . was drawn in question’’ embraced a case involving 

a trade agreement which had been made under the sanction of the 

Tariff Act of 1897. Said the Court: ‘‘While it may be true that this 

commercial agreement, made under authority of the Tariff Act of 

1897, § 3, was not a treaty possessing the dignity of one requiring 

ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two 

sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless, 

it was a compact authorized by the Congress of the United States, 

negotiated and proclaimed under the authority of its President. We 

think such a compact is a treaty under the Circuit Court of Appeals 

Act, and, where its construction is directly involved, as it is here, 

there is a right of review by direct appeal to this court.’’ 410

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 LendVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00087 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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411 55 Stat. 31. 412 E.g., 48 Stat. 1182 (1934), authorizing the President to accept membership 

for the United States in the International Labor Organization. 413See E. Corwin, supra at 216. 414W. McClure, supra at 13-14. 

Lease Act of March 11, 1941, 411 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 whereby the Government furnished 

its allies in World War II forty billions of dollars worth of munitions of war and other supplies. 

International Organizations.—Overlapping of the treatymaking power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions 

approving the United States joining of international organizations 412 and participating in international conventions. 413

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.’’ 414 The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting 

the word ‘‘treaty’’ for ‘‘agreement.’’ President Theodore Roosevelt, 

characterizing the ‘‘ratification’’ as equivalent to rejection, sent the 

treaties to repose in the archives. ‘‘As a matter of historical practice,’’ Dr. McClure comments, ‘‘the compromis under which disputes 

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415 Id. at 14. 416 1 W. Willoughby, supra at 543. 417 A Decade of American Foreign Policy, S. Doc. No. 123, 81st Cong., 1st Sess., 

126 (1950). 418 Id. at 158. 

ments in goodly numbers,’’ 415 a statement supported by both 

Willoughby and Moore. 416

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.’’ 417 This

time the Senate did not boggle over the word ‘‘agreement.’’ 

The United Nations Participation Act of December 20, 1945, 

implements these provisions as follows: ‘‘The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress 

by appropriate Act or joint resolution, providing for the numbers 

and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights 

of passage, to be made available to the Security Council on its call 

for the purpose of maintaining international peace and security in 

accordance with article 43 of said Charter. The President shall not 

be deemed to require the authorization of the Congress to make 

available to the Security Council on its call in order to take action 

under article 42 of said Charter and pursuant to such special 

agreement or agreements the armed forces, facilities, or assistance 

provided for therein: Provided, That nothing herein contained shall 

be construed as an authorization to the President by the Congress 

to make available to the Security Council for such purpose armed 

forces, facilities, or assistance in addition to the forces, facilities, 

and assistance provided for in such special agreement or agreements.’’ 418

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419Wilson v. Girard, 354 U.S. 524 (1957). 420 Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality opinion); id. at 66 (Justice 

Harlan concurring). 421 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1397 (1833). 422S. Crandall, supra, ch. 8; see also W. McClure, supra, chs. 1, 2. 

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. 419 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. 420

Executive Agreements on the Sole Constitutional Authority 

of the President 

Many types of executive agreements comprise the ordinary 

daily grist of the diplomatic mill. Among these are such as apply 

to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story’s 

words, ‘‘the mere private rights of sovereignty.’’ 421 Crandall lists 

scores of such agreements entered into with other governments by 

the authorization of the President. 422 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 

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423 Id. at 49-50. 424 Id. at 81-82. 425Tucker v. Alexandroff, 183 U.S. 424, 435 (1902). 426 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)). 427 Id. at 245. 428S. Crandall, supra at 103-04. 

with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing 

they have acted without considerable support from precedent. 

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid 

before the Senate with a query as to whether it was within the 

President’s power, or whether advice and consent of the Senate was 

required. The Senate approved the agreement by the required twothirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications. 423 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. 424 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.’’ 425 Justice Gray and three other 

Justices were of the opinion that such action by the President must 

rest upon express treaty or statute. 426

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.’’ 427 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, 428 just

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429 Id. at 104. 430 1 W. Willoughby, supra at 539. 431W. McClure, supra at 98. 432 Id. at 96-97. 433 Id. at 98-99. 

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. 429 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.’’ 430

It was during this period, too, that John Hay, as McKinley’s 

Secretary of State, initiated his ‘‘Open Door’’ policy, by notes to 

Great Britain, Germany, and Russia, which were soon followed by 

similar notes to France, Italy and Japan. These in substance asked 

the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of 

the others; and all responded favorably. 431 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. 432

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. 433 Meantime, in 1907, by a ‘‘Gentleman’s Agreement,’’ the Mikado’s government had agreed to curb the emigration of Japanese subjects to the 

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434 Id. at 99-100. 

435 Id. at 140-44. 

436 Id. at 391. 

437 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). 

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. 434

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. 435

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 semi-belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on 

Defense which would ‘‘consider in the broad sense the defense of 

the north half of the Western Hemisphere.’’ 436 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. 437 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 

526 ART. II—EXECUTIVE DEPARTMENT 

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438 4 Dept. State Bull. 443 (1941). 439See A Decade of American Foreign Policy, Basic Documents 1941-1949, S. 

Doc. No. 123, 81st Congress, 1st Sess. (1950), pt. 1. 440For 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). 441The ‘‘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. 442 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. 443See E. Byrd, supra at 151-57. 

Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense. 438

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. 439 For a period, the 

formal treaty—the signing of the United Nations Charter and the 

entry into the multinational defense pacts, like NATO, SEATO, 

CENTRO, and the like—reestablished itself, but soon the executive 

agreement, as an adjunct of treaty arrangement or solely through 

presidential initiative, again became the principal instrument of 

United States foreign policy, so that it became apparent in the 

1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves. 440

Congressional disquietitude did not result in anything more substantial than passage of a ‘‘sense of the Senate’’ resolution expressing a desire that ‘‘national commitments’’ be made more solemnly 

in the future than in the past. 441

The Domestic Obligation of Executive Agreements 

When the President enters into an executive agreement, what 

sort of obligation is thereby imposed upon the United States? That 

international obligations of potentially serious consequences may 

be imposed is obvious and that such obligations may linger for long 

periods of time is equally obvious. 442 But the question is more directly pointed to the domestic obligations imposed by such agreements; are treaties and executive agreements interchangeable insofar as domestic effect is concerned? 443 Executive agreements entered into pursuant to congressional authorization and probably 

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444 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. 

5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 426 (1944). 445 224 U.S. 583 (1912). 446 301 U.S. 324 (1937). 447 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 448 299 U.S. at 330-32. 449 315 U.S. 203 (1942). 

through treaty obligations present little doctrinal problem; those 

arrangements by which the President purports to bind the Nation 

solely on the basis of his constitutional powers, however, do raise 

serious questions. 

Until recently, it was the view of most judges and scholars that 

this type of executive agreement did not become the ‘‘law of the 

land’’ pursuant to the supremacy clause because the treaty format 

was not adhered to. 444 A different view seemed to underlie the Supreme Court decision in B. Altman & Co. v. United States, 445 in

which it was concluded that a jurisdictional statute reference to 

‘‘treaty’’ encompassed an executive agreement. The idea flowered in 

United States v. Belmont, 446 where the Court, in an opinion by Justice Sutherland, following on his Curtiss-Wright 447 opinion, gave 

domestic effect to the Litvinov Agreement. At issue was whether a 

district court of the United States was correct in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal 

corporation the assets of which had been appropriated by the Soviet government. The lower court had erred, the Court ruled. The 

President’s act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, ‘‘as the sole organ’’ of international relations for the United States, was authorized to enter 

upon without consulting the Senate. Nor did state laws and policies 

make any difference in such a situation, for while the supremacy 

of treaties is established by the Constitution in express terms, yet 

the same rule holds ‘‘in the case of all international compacts and 

agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the 

several States.’’ 448

In United States v. Pink, 449 decided five years later, the same 

course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled 

under the Executive Agreement of 1933 to recover the assets of the 

New York branch of a Russian insurance company. The company 

argued that the decrees of confiscation of the Soviet Government 

528 ART. II—EXECUTIVE DEPARTMENT 

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did not apply to its property in New York and could not consistently with the Constitution of the United States and that of New 

York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government 

itself settled the question of the extraterritorial operation of the 

Russian decree of nationalization and was binding on American 

courts. The power to remove such obstacles to full recognition as 

settlement of claims of our nationals was ‘‘a modest implied power 

of the President who is the ‘sole organ of the Federal Government 

in the field of international relations’. . . . It was the judgment of the 

political department that full recognition of the Soviet Government 

required the settlement of outstanding problems including the 

claims of our nationals. . . . We would usurp the executive function 

if we held that the decision was not final and conclusive on the 

courts.’’

‘‘It is, of course, true that even treaties with foreign nations 

will be carefully construed so as not to derogate from the authority 

and jurisdiction of the States of this nation unless clearly necessary 

to effectuate the national policy. . . . But state law must yield when 

it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement. . . . Then, the power 

of a State to refuse enforcement of rights based on foreign law 

which runs counter to the public policy of the forum . . . must give 

way before the superior Federal policy evidenced by a treaty or 

international compact or agreement... .’’ 

‘‘The action of New York in this case amounts in substance to 

a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our 

constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would ‘imperil the amicable relations between governments and vex the peace of nations.’ 

... It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government 

has diligently endeavored to establish... .’’ 

‘‘No State can rewrite our foreign policy to conform to its own 

domestic policies. Power over external affairs is not shared by the 

States; it is vested in the national government exclusively. It need 

not be so exercised as to conform to State laws or State policies, 

whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constituVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00096 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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450 315 U.S. at 229-34. Chief Justice Stone and Justice Roberts dissented. 451The decision in Dames & Moore v. Regan, 453 U.S. 654 (1981), is rich in 

learning on many topics involving executive agreements, but the Court’s conclusion 

that Congress had either authorized various presidential actions or had long acquiesced in others leaves the case standing for little on our particular issue of this section.452 But see United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir. 1953), 

wherein Chief Judge Parker held that an executive agreement entered into by the 

President without congressional authorization or ratification could not displace domestic law inconsistent with such agreement. The Supreme Court affirmed on other 

grounds and declined to consider this matter. 348 U.S. 296 (1955). 453There were numerous variations in language, but typical was § 3 of S.J. Res. 

1, as reported by the Senate Judiciary Committee, 83d Congress, 1st Sess. (1953), 

which provided: ‘‘Congress shall have power to regulate all executive and other 

agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.’’ The 

limitation relevant on this point was in § 2, which provided: ‘‘A treaty shall become 

effective as internal law in the United States only through legislation which would 

be valid in the absence of treaty.’’ 454 United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1868). 455 7 Ops. Atty. Gen. 168 (1855). 

tional sphere, seeks enforcement of its foreign policy in the 

courts.’’ 450

No Supreme Court decision subsequent to Belmont and Pink is

available for consideration. 451 Whether the cases in fact turned on 

the particular fact that the executive agreement in question was incidental to the President’s right to recognize a foreign state, despite 

the language which equates treaties and executive agreements for 

purposes of domestic law, cannot be known. Certainly, executive 

agreements entered into solely on the authority of the President’s 

constitutional powers are not the law of the land because of the 

language of the Supremacy Clause, and the absence of any congressional participation denies them the political requirements they 

may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law. 452

This status was another element in the movement for a constitutional amendment in the 1960s to limit the President’s powers in 

this field, a movement that ultimately failed. 453

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.’’ 454

Ambassadors and Other Public Ministers.—The term ‘‘ambassadors and other public ministers,’’ comprehends ‘‘all officers 

having diplomatic functions, whatever their title or designation.’’ 455

530 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

456 It was so assumed by Senator William Maclay. THE JOURNAL OF WILLIAM

MACLAY 109-10 (E. Maclay ed., 1890). 457 26 ANNALS OF CONGRESS 694-722 (1814) (quotation appearing at 699); 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 350-353 (1865). 

It was originally assumed that such offices were established by the 

Constitution itself, by reference to the Law of Nations, with the 

consequence that appointments might be made to them whenever 

the appointing authority—the President and Senate—deemed desirable. 456 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.’’ 457

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458 10 Stat. 619, 623. 459 7 Ops. Atty. Gen. 186, 220 (1855). 460 60 Stat. 999, superseded by the Foreign Service Act of 1980, P. L. 96-465, 

94 Stat. 2071, 22 U.S.C. § 3901 et seq.

By the opening section of the act of March 1, 1855, it was provided that ‘‘from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent 

of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary,’’ with a specified annual 

compensation for each, ‘‘to the following countries... .’’ In the body 

of the act was also this provision: ‘‘The President shall appoint no 

other than citizens of the United States, who are residents thereof, 

or who shall be abroad in the employment of the Government at 

the time of their appointment. . . .’’ 458 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.’’ 459

This line of reasoning is only partially descriptive of the facts. 

The Foreign Service Act of 1946, 460 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 acknowledgement as such 

by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of 

their most important services in the capacity of secret agents, with 

532 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

461 11 T. BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS 221 (1860). 462S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104. 

full powers. Franklin, Adams, Lee, were only commissioners; and 

in negotiating a treaty with the Emperor of Morocco, the selection 

of the secret agent was left to the Ministers appointed to make the 

treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made 

a treaty, which was ratified by the Ministers at Paris.’’ 

‘‘These instances show that, even prior to the establishment of 

the Federal Government, secret plenipotentiaries were known, as 

well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, 

in the recess of the Senate, by letters patent under the great broad 

seal of the United States, and the signature of their President, 

(that President being George Washington,) countersigned by the 

Secretary of State, David Humphreys was appointed commissioner 

plenipotentiary for negotiating a treaty of peace with Algiers. By 

instructions from the President, he was afterwards authorized to 

employ Joseph Donaldson as agent in that business. In May, of the 

same year, he did appoint Donaldson, who went to Algiers, and in 

September of the same year concluded a treaty with the Dey and 

Divan, which was confirmed by Humphreys, at Lisbon, on the 28th 

November in the same year, and afterwards ratified by the Senate, 

and an act passed both Houses on 6th May, 1796, appropriating a 

large sum, twenty-five thousand dollars annually, for carrying it 

into effect.’’ 461

The precedent afforded by Humphreys’ appointment without 

reference to the Senate has since been multiplied many times, 462

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 

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463S. 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.’’ 464See 2 G. HOAR, AUTOBIOGRAPHY OF SEVENTY YEARS 48-51 (1903). 

as to the right of the President of the United States to dispatch Mr. 

Blount to Hawaii as his personal representative for the purpose of 

seeking the further information which the President believed was 

necessary in order to arrive at a just conclusion regarding the state 

of affairs in Hawaii. Many precedents could be quoted to show that 

such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the 

United States. . . . These precedents also show that the Senate of 

the United States, though in session, need not be consulted as to 

the appointment of such agents, . . . .’’ 463 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.’’ 464 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 negotated by commissions containing Senators 

and Representatives. 

Appointments and Congressional Regulation of Offices 

That the Constitution distinguishes between the creation of an 

office and appointment thereto for the generality of national offices 

has never been questioned. The former is by law and takes place 

by virtue of Congress’ power to pass all laws necessary and proper 

534 ART. II—EXECUTIVE DEPARTMENT 

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465 However, ‘‘Congress’ power . . . is inevitably bounded by the express language 

of Article II, cl. 2, and unless the method it provides comports with the latter, the 

holders of those offices will not be ‘Officers of the United States.’’’ Buckley v. Valeo, 

424 U.S. 1, 138-139 (1976) (quoted in Freytag v. Commissioner, 501 U.S. 868, 883 

(1991)). The 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 was impermissible and their actions were not salvageable under 

the de facto officer doctrine. Ryder v. United States, 515 U.S. 177 (1995). 466See Myers v. United States, 272 U.S. 52, 264-274 (1926) (Justice Brandeis 

dissenting). Chief Justice Taft in the opinion of the Court in Myers readily recognized the legislative power of Congress to establish offices, determine their functions 

and jurisdiction, fix the terms of office, and prescribe reasonable and relevant qualifications and rules of eligibility of appointees, always provided ‘‘that the qualifications do not so limit selection and so trench upon executive choice as to be in effect 

legislative designation.’’ Id. at 128-29. For reiteration of Congress’ general powers, 

see Buckley v. Valeo, 424 U.S. 1, 134-35 (1976); Morrison v. Olson, 487 U.S. 654, 

673-77 (1988). And see United States v. Ferriera, 54 U.S. (13 How.) 40, 51 (1851). 467See 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 the thesis that, ‘‘as a general principle, . . . Congress have 

no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons 

for these [newly created] offices from the whole body of his fellow-citizens.’’ 2 J. 

Richardson 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 

for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments 

and officers. 465 As an incident to the establishment of an office, 

Congress has also the power to determine the qualifications of the 

officer and in so doing necessarily limits the range of choice of the 

appointing power. First and last, it has laid down a great variety 

of qualifications, depending on citizenship, residence, professional 

attainments, occupational experience, age, race, property, sound 

habits, and so on. It has required that appointees be representative 

of a political party, of an industry, of a geographic region, or of a 

particular branch of the Government. It has confined the President’s selection to a small number of persons to be named by others. 466 Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power. 467 DeVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00102 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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States, 272 U.S. 52, 128-29 (1926), quoted supra. And note that in Public Citizen 

v. Department of Justice, 491 U.S. 440, 482-89 (1989) (concurring), Justice Kennedy 

suggested the President has sole and unconfined discretion in appointing). 

468The 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 Aircraft Noise, Inc., 501 U.S. 252, 268-269 (1991), the Court 

carefully distinguished these examples from the particular situation before it that 

it condemned, but see id. 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. 

469 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, Inc., 501 U.S. 252 (1991). 

spite the record of the past, however, it is not at all clear that Congress may cabin the President’s discretion, at least for offices that 

he considers important, by, for example, requiring him to choose 

from lists compiled by others. To be sure, there are examples, but 

they are not free of ambiguity. 468

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. 469 The Court did hold, however, that the Commission so appointed and confirmed could be delegated the powers 

Congress itself could exercise, that is, those investigative and informative functions that congressional committees carry out were 

properly vested in this body. 

Congress is authorized by the appointments clause to vest the 

appointment of ‘‘inferior Officers,’’ at its discretion, ‘‘in the President alone, in the Courts of Law, or in the Heads of Departments.’’ 

Principal questions arising under this portion of the clause are 

‘‘Who are ‘inferior officers,’’’ and ‘‘what are the ‘Departments’’’ 

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470 Concurrently, of course, although it may seem odd, the question of what is 

a ‘‘Court[] of Law’’ for purposes of the appointments clause is unsettled. See Freytag

v. CIR, 501 U.S. 868 (1991) (Court divides 5-to-4 whether an Article I court is a 

court of law under the clause). 471Freytag v. Commissioner, 501 U.S.868, 881 (1991) (quoting Buckley v. Valeo, 

424 U.S. 1, 126 (1976)). 472 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). And see United States v. 

Eaton, 169 U.S. 331 (1898). There is another category, of course, employees, but 

these are lesser functionaries subordinate to officers of the United States. Ordinarily, the term ‘‘employee’’ denotes one who stands in a contractual relationship 

to her employer, but here it signifies all subordinate officials of the Federal Government receiving their appointments at the hands of officials who are not specifically 

recognized by the Constitution as capable of being vested by Congress with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890). See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-53 (1931); Burnap v. United States, 252 

U.S. 512, 516-17 (1920); Germaine, 99 U.S. at 511-12. 473 520 U.S. 651 (1997). 474 520 U.S. at 661-62. 

whose heads may be given appointing power? 470 ‘‘[A]ny appointee 

exercising significant authority pursuant to the laws of the United 

States is an ‘Officer of the United States,’ and must, therefore, be 

appointed in the manner prescribed by § 2, cl. 2, of [Article II].’’ 471

‘‘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.’’ 472 The Court, in Edmond v. United States, 473

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. 474

‘‘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 

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475 520 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). 476Freytag v. Commissioner, 501 U.S. 868, 919 (1991) (Justice Scalia concurring).477Freytag v. Commissioner, 501 U.S. 868, 884-85 (1991). 

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 appointed by Presidential nomination with the advice and consent of the Senate.’’ 475

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. 476 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.’’ 477

Yet, even agreed on the principle, the Freytag Court split 5-to4 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 

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478 501 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). 479 501U.S. at 886 (emphasis supplied). 480 501 U.S. at 886-88. Compare id. at 915-19 (Justice Scalia concurring). 481 501 U.S. at 888-92. This holding was vigorously controverted by the other 

four Justices. Id. at 901-14 (Justice Scalia concurring). 482 501 U.S. at 918, 919 (Justice Scalia concurring). 483 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. 

tional. But there agreement ended. The majority was of the opinion 

that the Tax Court could not be a department, but it was unclear 

what those Justices thought a department comprehended. Seemingly, it started from the premise that departments were those 

parts of the executive establishment called departments and headed by a cabinet officer. 478 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’’. 479

The use of the word ‘‘like’’ in this passage suggests that it is not 

just Cabinet-headed 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. 480 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. 481 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.’’ 482

The Freytag decision must be considered a tentative rather 

than a settled construction. 483 The close division of the Court 

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484 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). 485 100 U.S. 371 (1880). 486Morrison 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). 487 19 Stat. 143, 169 (1876). 488 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. 489 22 Stat. 403 (the Pendeleton 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). 

means that new Court appointments, some of which have already 

occurred, could change the construction. 

As noted, the appointments clause also authorizes Congress to 

vest the power in ‘‘Courts of Law.’’ Must the power to appoint when 

lodged in courts be limited to those officers acting in the judicial 

branch, as the Court first suggested? 484 No, the Court has said 

more recently. In Ex parte Siebold, 485 the Court sustained Congress’ 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. 486

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.’’ 487 The validity of this measure having been sustained, 488 the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883. 489 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, definVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00107 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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490 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. 491 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., 1632-1650. 

492 54 Stat. 767 (1940), then 5 U.S.C. § 7324(a). By P. L. 103-94, §§ 2(a), 12, 

107 Stat. 1001, 1011, to be codified at 5 U.S.C. §§ 7321-7325, Congress liberalized 

the restrictions of the Act, allowing employees to take an active part in political 

management or in political campaigns, subject to specific exceptions. The 1940 law, 

§ 12(a), 54 Stat. 767-768, also applied the same broad ban to employees of federally 

funded state and local agencies, but this provision was amended in 1974 to bar state 

and local government employees only from running for public office in partisan elections. Act of Oct. 15, 1974, P. L. 93-443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502. 493 330 U.S. 75 (1947). See also Civil Serv. Corp. 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 jurisprudence of First Amendment speech, but 

the Act was again sustained. A ‘‘little Hatch Act’’ of a State, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973). 494 53 Stat. 1147, 5 U.S.C. § 7311. 

ing ‘‘just causes’’ as those that would promote the ‘‘efficiency of the 

service.’’ 490 Substantial changes in the civil service system were instituted by the Civil Service Reform Act of 1978, which abolished 

the Civil Service Commission, and divided its responsibilities, its 

management and administrative duties to the Office of Personnel 

Management and its review and protective functions to the Merit 

Systems Protection Board. 491

By the Hatch Act, 492 all persons in the executive branch of the 

Government, or any department or agency thereof, except the 

President and Vice President and certain ‘‘policy determining’’ officers, were forbidden to ‘‘take an active part in political management or political campaigns,’’ although they were still permitted to 

‘‘express their opinions on all political subjects and candidates.’’ In 

United Public Workers v. Mitchell, 493 these provisions were upheld 

as ‘‘reasonable’’ against objections based on the First, Fifth, Ninth, 

and Tenth Amendments. 

The Loyalty Issue.—By section 9A of the Hatch Act of 1939, 

federal employees were disqualified from accepting or holding any 

position in the Government or the District of Columbia if they belonged to an organization that they knew advocated the overthrow 

of our constitutional form of government. 494 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 

ART. II—EXECUTIVE DEPARTMENT 541

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495See 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. 496 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 Government 

elected not to 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). 497 E.O. 9835, 12 Fed. Reg. 1935 (1947). 498 E.O. 10450, 18 Fed. Reg. 2489 (1953). 499See generally, Report of the Special Committee on The Federal Loyalty-Security Program, The Association of the Bar of the City of New York (New York: 1956). 500P. 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 personel, but by P. L. 101-194, title II, 103 Stat. 1725 (1989), one comprehensive title, as amended, applying to all covered federal personnel was enacted. 

5 U.S.C.App. §§ 101-111. 501See Developments, supra, 97 HARV. L. REV., 1660-1669. 502 Id. at 1661 (citing S. Rep. 170, 95th Cong., 2d sess. (1978), 21-22. 503 Id. at 1664-69. The Ethics Act also expanded restrictions on postemployment 

by imposing bans on employment, varying from a brief period to an out-and-out lifetime ban in certain cases. Id. at 1669-76. The 1989 revision enlarged and expanded 

on these provisions. 103 Stat. 1716-1724, amending 18 U.S.C. § 207. 

asserted the right to strike against the Government. 495 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. 496 Along with the loyalty-security programs initiated by 

President Truman 497 and carried forward by President Eisenhower, 498 these measures reflected the Cold War era and the fear 

of subversion and espionage following the disclosures of several 

such instances here and abroad. 499

Financial Disclosure and Limitations.—By the Ethics in 

Government Act of 1978, 500 Congress required high-level federal 

personnel to make detailed, annual disclosures of their personal financial affairs. 501 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. 502 Despite the assertions of some that employee privacy 

interests are needlessly invaded by the breadth of disclosures, to 

date judicial challenges have been unsuccessful, absent even a Supreme Court review. 503 One provision, however, generated much 

opposition, and was invalidated. Under § 501(b) of the Ethics in 

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504 92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as amended, 5 

U.S.C.App. §§ 501-505. 505 5 U.S.C.App. § 505(3). 506 NTEU v. United States, 990 F.2d 1271 (D.C. Cir.), pet. for reh. en banc 

den., 3 F.3d 1555 (D.C. Cir. 1993). The Supreme Court held this provision unconstitutional in United States v. NTEU, 513 U.S. 454 (1995). 507Shoemaker v. United States, 147 U.S. 282, 301 (1893). The Court noted that 

the additional duties at issue were ‘‘germane’’ to the offices. Id. 508Marbury v. Madison, 5 U.S. (1 Cr.) 137, 155-156 (1803) (Chief Justice Marshall). Marshall’s statement that the appointment ‘‘is the act of the President,’’ conflicts with the more generally held and sensible view that when an appointment is 

made with its consent, the Senate shares the appointing power. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1525 (1833); In re 

Hennen, 38 U.S. (13 Pet.) 230, 259 (1839). 

Government Act, 504 there is imposed a ban on Members of Congress or any officer or employee of the Government, regardless of 

salary level, taking any ‘‘honorarium,’’ which is defined as ‘‘a payment of money or anything of value for an appearance, speech or 

article (including a series of appearances, speeches, or articles if 

the subject matter is directly related to the individual’s official duties or the payment is made because of the individual’s status with 

the Government) . . . .’’ 505 The statute, even interpreted in accordance with the standards applicable to speech restrictions on government employees, has been held to be overbroad and not sufficiently tailored to serve the governmental interest to be promoted 

by it. 506

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.’’ Such legislation does not constitute an attempt by Congress to seize the appointing power. 507

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. 508

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 

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509 3 Ops. Atty. Gen. 188 (1837). 510 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). 511 286 U.S. 6 (1932). 512 E. Corwin, supra at 77. 513 272 U.S. 52 (1926). 

limitations to the President, but it cannot vary those submitted by 

him, for no appointment can be made except on his nomination, 

agreed to without qualifications or alteration.’’ 509 This view is 

borne out by early opinion, 510 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, 511 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. 512

The Removal Power 

The Myers Case.—Save for the provision which it makes for 

a power of impeachment of ‘‘civil officers of the United States,’’ the 

Constitution contains no reference to a power to remove from office, 

and until its decision in Myers v. United States, 513 on October 25, 

1926, the Supreme Court had contrived to 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, 

544 ART. II—EXECUTIVE DEPARTMENT 

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514 19 Stat. 78, 80. 515 272 U.S. at 163-64. 

acting by direction of the President, to remove from office a firstclass postmaster, in the face of the following provision of an act of 

Congress passed in 1876: ‘‘Postmasters of the first, second, and 

third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall 

hold their offices for four years unless sooner removed or suspended according to law.’’ 514

A divided Court, speaking through Chief Justice Taft, held the 

order of removal valid and the statutory provision just quoted void. 

The Chief Justice’s main reliance was on the so-called ‘‘decision of 

1789,’’ the reference being to Congress’ course that year in inserting in the act establishing the Department of State a proviso which 

was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by 

Madison, who invoked in support of it the opening words of Article 

II and the President’s duty to ‘‘take care that the laws be faithfully 

executed.’’ Succeeding passages of the Chief Justice’s opinion erected on this basis a highly selective account of doctrine and practice 

regarding the removal power down to the Civil War, which was 

held to yield the following results: ‘‘That article II grants to the 

President the executive power of the Government, i.e., the general 

administrative control of those executing the laws, including the 

power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative 

power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior 

offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on 

condition that it does vest, their appointment in other authority 

than the President with the Senate’s consent; that the provisions 

of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President’s power of removal is further established 

as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident 

does not by implication extend to removals the Senate’s power of 

checking appointments; and finally that to hold otherwise would 

make it impossible for the President, in case of political or other 

differences with the Senate or Congress, to take care that the laws 

be faithfully executed.’’ 515

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516The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of ‘‘estate in office,’’ 

from which the conclusion followed that the impeachment power was the only power 

of removal intended by the Constitution; second, that the power of removal was an 

incident of the power of appointment and hence belonged, at any rate in the absence 

of legal or other provision to the contrary, to the appointing authority; third, that 

Congress could, by virtue of its power ‘‘to make all laws which shall be necessary 

and proper,’’ etc., determine the location of the removal power; fourth, that the 

President by virtue of his ‘‘executive power’’ and his duty ‘‘to take care that the laws 

be faithfully executed,’’ possesses the power of removal over all officers of the United 

States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views 

were put forward, with the final result that a clause was incorporated in the measure that implied, as pointed out above, that the head of the department would be 

removable by the President at his discretion. Contemporaneously, and indeed until 

after the Civil War, this action by Congress, in other words ‘‘the decision of 1789,’’ 

was interpreted as establishing ‘‘a practical construction of the Constitution’’ with 

respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the ‘‘correct interpretation’’ of the Constitution was that the power of removal was always an incident 

of the power of appointment, and that therefore in the case of officers appointed by 

the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. For an 

extensive review of the issue at the time of Myers, see Corwin, The President’s Removal Power Under the Constitution, in 4 SELECTED ESSAYS ON CONSTITUTIONAL

LAW 1467 (1938). 

517 272 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’ 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 separation-of-powers decisions. 

The holding in the Myers case boils down to the proposition 

that the Constitution endows the President with an illimitable 

power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on 

the Chief Justice’s part to set history aright—or awry. 516 Rather,

it was the concern that he voiced in the following passage in his 

opinion: ‘‘There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged 

in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important 

of his subordinates in their most important duties must, therefore, 

control the interpretation of the Constitution as to all appointed by 

him.’’ 517 Thus spoke the former President Taft, and the result of 

his prepossession was a rule which, as was immediately pointed 

out, exposed the so-called ‘‘independent agencies,’’ the Interstate 

Commerce Commission, the Federal Trade Commission, and the 

like, to presidential domination. Unfortunately, the Chief Justice, 

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518 ANNALS OF CONGRESS 611-612 (1789). 519 295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United 

States, Humphrey having, like Myers before him, died in the course of his suit for 

salary. Proponents of strong presidential powers long argued that Humphrey’s Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), 

both cases argued and decided contemporaneously, reflected the anti-New Deal 

views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 YEARBOOK OF THE SUPREME COURT

HISTORICAL SOCIETY 103, 106-10. 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).

while professing to follow Madison’s leadership, had omitted to 

weigh properly the very important observation which the latter had 

made at the time regarding the office of Comptroller of the Treasury. ‘‘The Committee,’’ said Madison, ‘‘has gone through the bill 

without making any provision respecting the tenure by which the 

comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. 

It will be necessary to consider the nature of this office, to enable 

us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as 

well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness 

and justice of the claims and accounts subsisting between the 

United States and particular citizens: this partakes strongly of the 

judicial character, and there may be strong reasons why an officer 

of this kind should not hold his office at the pleasure of the executive branch of the government.’’ 518 In Humphrey’s Executor v. 

United States, 519 the Court seized upon ‘‘the nature of the office’’ 

concept and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case.—The material element of 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 no place in the executive department and 

ART. II—EXECUTIVE DEPARTMENT 547

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

520 295 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. 

who exercises no part of the executive power vested by the Constitution in the President.’’ 

‘‘The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied 

in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the 

statute, must be free from executive control. . . . We think it plain 

under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of 

those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, 

as an appropriate incident, power to fix the period during which 

they shall continue in office, and to forbid their removal except for 

cause in the meantime. For it is quite evident that one who holds 

his office only during the pleasure of another, cannot be depended 

upon to maintain an attitude of independence against the latter’s 

will... .’’ 

‘‘The result of what we now have said is this: Whether the 

power of the President to remove an officer shall prevail over the 

authority of Congress to condition the power by fixing a definite 

term and precluding a removal except for cause, will depend upon 

the character of the office; the Myers decision, affirming the power 

of the President alone to make the removal, is confined to purely 

executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or 

more of the causes named in the applicable statute.’’ 520

The Wiener Case.—Curtailment of the President’s power of 

removal, so liberally delineated in the Myers decision, was not to 

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 

548 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

521 357 U.S. 349 (1958). 522 28 U.S.C. § 516. 523 28 U.S.C. §§ 509, 510, 515, 533. 524 38 Fed. Reg. 14688 (1973). The Special Prosecutor’s status and duties were 

the subject of negotiation between the Administration and the Senate Judiciary 

Committee. Nomination of Elliot L. Richardson to be Attorney General: Hearings 

Before the Senate Judiciary Committee, 93d Congress, 1st Sess. (1973), 143 

passim. 525The formal documents effectuating the result are set out in 9 Weekly Comp. 

Pres. Doc. 1271-1272 (1973). 526 38 Fed. Reg. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. 

See Nomination of William B. Saxbe to be Attorney General: Hearings Before the 

Senate Judiciary Committee, 93d Congress, 1st Sess. (1973). 

with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative 

answer in Wiener v. United States. 521 Emphasizing therein that the 

duties of the War Claims Commission were wholly adjudicatory 

and its determinations, final and exempt from review by any other 

official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he 

lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the 

life of that agency. 

The Watergate Controversy.—A dispute arose regarding the 

discharge of the Special Prosecutor appointed to investigate and 

prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government, 522 and it further authorized him 

to appoint subordinate officers to assist him in the discharge of his 

duties. 523 Pursuant to presidential direction, the Attorney General 

designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate 

break-in, the 1972 presidential election, and allegations involving 

the President, members of the White House staff, or presidential 

appointees. He was to remain in office until a date mutually agreed 

upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor ‘‘will not be removed 

from his duties except for extraordinary improprieties on his 

part.’’ 524 On October 20, following the resignations of the Attorney 

General and the Deputy Attorney General, the Solicitor General as 

Acting Attorney General formally dismissed the Special Prosecutor 525 and three days later rescinded the regulation establishing 

the office. 526 In subsequent litigation, a federal district court held 

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527 Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973). 528 418 U.S. 683, 692-97 (1974). 529The first question remained unstated, but the second issue was extensively 

debated in Special Prosecutor: Hearings Before the Senate Judiciary Committee, 

93d Congress, 1st Sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the House Judiciary Subcommittee on Criminal Justice, 93d 

Congress, 1st Sess. (1973). 530 Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 

(1988). This is not to say that the language and analytical approach of Synar are 

not in conflict with that of Morrison; it is to say that the results are consistent and 

the analytical basis of the latter case does resolve the ambiguity present in some 

of the reservations in Synar. 

lowed until they were rescinded. 527 The Supreme Court in United

States v. Nixon 528 seemed to confirm this analysis by the district 

court in upholding the authority of the new Special Prosecutor to 

take the President to court to obtain evidence in the President’s 

possession. Left unsettled were two questions, the power of the 

President himself to go over the heads of his subordinates and to 

fire the Special Prosecutor himself, whatever the regulations said, 

and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the 

President. 529 When Congress acted to create an office, first called 

the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary. 

The Removal Power Rationalized.—The tension that had 

long been noticed between Myers and Humphrey’s Executor, at least 

in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, 

purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of 

persons appointed under the Appointments Clause. 530 Myers actually struck down only a law involving the Senate in the removal 

of postmasters, but the broad-ranging opinion had long stood for 

the proposition that inherent in the President’s obligation to see to 

the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey’s Executor had

qualified this proposition by upholding ‘‘for cause’’ removal restrictions for members of independent regulatory agencies, at least in 

part on the assertion that they exercised ‘‘quasi-’’ legislative and 

adjudicative functions as well as some form of executive function. 

Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution 

of the laws as a core executive function in recent cases had cast 

considerable doubt on the continuing validity of Humphrey’s Executor.

550 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

531 478 U.S. 714 (1986). 532The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99- 

177, 99 Stat. 1038. 533 478 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 l921 

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. 534 478 U.S. at 726. 535 478 U.S. at 725 n. 4. 536 487 U.S. 654 (1988). 537Pub. L. 95-521, title VI, 92 Stat. 1867, as amended by Pub. L. 97-409, 96 

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

In Bowsher v. Synar, 531 the Court held that when Congress 

itself retains the power to remove an official it could not vest him 

with the exercise of executive power. Invalidated in Synar were

provisions of the l985 ‘‘Gramm-Rudman-Hollings’’ Deficit Control 

Act 532 vesting in the Comptroller General authority to prepare a 

detailed report on projected federal revenue and expenditures and 

to determine mandatory across-the-board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory 

targets. By a l921 statute, the Comptroller General was removable 

by joint congressional resolution for, inter alia, ‘‘inefficiency,’’ ‘‘neglect of duty,’’ or ‘‘malfeasance.’’ ‘‘These terms are very broad,’’ the 

Court noted, and ‘‘could sustain removal of a Comptroller General 

for any number of actual or perceived transgressions of the legislative will.’’ Consequently, the Court determined, ‘‘the removal powers over the Comptroller General’s office dictate that he will be 

subservient to Congress.’’ 533

Relying expressly upon Myers, the Court concluded that ‘‘Congress cannot reserve for itself the power of removal of an officer 

charged with the execution of the laws except by impeachment.’’ 534

But Humphrey’s Executor was also cited with approval, and to the 

contention that invalidation of this law would cast doubt on the 

status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of ‘‘for cause’’ removal by the President rather than congressional involvement as in the instance of the Comptroller General. 535 This reconciliation of Myers and Humphrey’s Executor was

made clear and express in Morrison v. Olson. 536

That case sustained the independent counsel statute. 537 Under

that law, the independent counsel, appointed by a special court 

upon application by the Attorney General, may be removed by the 

Attorney General ‘‘only for good cause, physical disability, mental 

ART. II—EXECUTIVE DEPARTMENT 551

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

538 487 U.S. at 685-93. 

incapacity, or any other condition that substantially impairs the 

performance of such independent counsel’s duties.’’ Inasmuch as 

the counsel was clearly exercising ‘‘purely’’ executive duties, in the 

sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. But, said the 

Court, Myers stood only for the proposition that Congress could not 

involve itself in the removal of executive officers. Its broad dicta 

that the President must be able to remove at will officers performing ‘‘purely’’ executive functions had not survived Humphrey’s

Executor. It was true, the Court admitted, that, in the latter case, 

it had distinguished between ‘‘purely’’ executive officers and officers 

who exercise ‘‘quasi-legislative’’ and ‘‘quasi-judicial’’ powers in 

marking the line between officials who may be presidentially removed at will and officials who can be protected through some form 

of good cause removal limits. ‘‘[B]ut our present considered view is 

that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s 

power to remove an official cannot be made to turn on whether or 

not that official is classified as ‘purely executive.’ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will 

by the President, but to ensure that Congress does not interfere 

with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully 

executed’ under Article II. Myers was undoubtedly correct in its 

holding, and in its broader suggestion that there are some ‘purely 

executive’ officials who must be removable by the President at will 

if he is to be able to accomplish his constitutional role. . . . At the

other end of the spectrum from Myers, the characterization of the 

agencies in Humphrey’s Executor and Wiener as ‘quasi-legislative’ 

or ‘quasi-judicial’ in large part reflected our judgment that it was 

not essential to the President’s proper execution of his Article II 

powers that these agencies be headed up by individuals who were 

removable at will. We do not mean to suggest that an analysis of 

the functions served by the officials at issue is irrelevant. But the 

real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must 

be analyzed in that light.’’ 538

The Court discerned no compelling reason to find the good 

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539 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). And see Justice Scalia’s utilization of the ‘‘take care’’ 

clause in pronouncing limits on Congress’ constitutional power to confer citizen 

standing in Lujan v. Defenders of Wildlife, 505 U.S. 555, 576-78 (1992), although 

it is not clear that he had a majority of the Court with him. 540 Indeed, the Court explicitly analogized the civil enforcement powers of the 

independent agencies to the prosecutorial powers wielded by the independent counsel. Morrison v. Olson, 487 U.S. 654, 692 n.31 (1988). 541 United States v. Perkins, 116 U.S. 483 (1886), cited with approval in Myers 

v. United States, 272 U.S. 52, 161-163, 164 (1926), and Morrison v. Olson, 487 U.S. 

654, 689 n. 27 (1988). 542Parsons v. United States, 167 U.S. 324 (1897). 543Shurtleff v. United States, 189 U.S. 311 (1903). 

ment functions, but the jurisdiction and tenure of each counsel 

were limited in scope and policymaking, or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to 

ensure the ‘‘faithful execution’’ of the laws by assuring that the 

counsel is competently performing the statutory duties of the office. 

It is now thus reaffirmed that Congress may not involve itself 

in the removal of officials performing executive functions. It is also 

established that, in creating offices in the executive branch and in 

creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or 

another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices 

which may be essential to the President’s performance of his constitutionally assigned powers and duties, so that limits on removal 

would be impermissible. There are no bright lines marking off one 

office from the other, but decision requires close analysis. 539

As a result of these cases, the long-running controversy with 

respect to the legitimacy of the independent agencies appears to 

have been settled, 540 although it appears likely that the controversies with respect to congressional-presidential assertions of power 

in executive agency matters are only beginning. 

Other Phases of Presidential Removal Power.—Congress

may ‘‘limit and restrict the power of removal as it deems best for 

the public interest’’ in the case of inferior officers. 541 However, in 

the absence of specific legislative provision to the contrary, the 

President may remove at his discretion an inferior officer whose 

term is limited by statute, 542 or one appointed with the consent of 

the Senate. 543 He may remove an officer of the army or navy at 

any time by nominating to the Senate the officer’s successor, proVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00120 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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544 Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States, 

177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922). 545Morgan v. TVA, 28 F. Supp. 732 (E.D. Tenn. 1939), aff’d, 115 F.2d 990 (6th 

Cir. 1940), cert. denied, 312 U.S. 701 (1941). 546 E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890). 547 United States v. Lovett, 328 U.S. 303 (1946). 548 E.g., 2 J. Richardson, supra at 847. 549 United States v. Lovett, 328 U.S. 303, 313 (1946). 

vided the Senate approves the nomination. 544 In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation 

of charges which he had levelled at his fellow directors. 545 Although no such cause of removal by the President was stated in the 

act creating TVA, the President’s action, being reasonably required 

to promote the smooth functioning of TVA, was within his duty to 

‘‘take care that the laws be faithfully executed.’’ So interpreted, 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 546 or pressing litigation in their behalf, 547 refusing a congressional call for papers which might be 

used, in their absence from the seat of government, to their disadvantage, 548 challenging the constitutional validity of legislation 

deemed detrimental to their interests. 549 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. 

554 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

550For a good statement of the basis of the doctrine, the areas in which it is 

asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive: Hearings Before the Senate Judiciary Subcommittee on 

Separation of Powers, 92d Congress, 1st Sess. (1971), 420-43, (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 Kleindeinst argued that the President could assert the privilege as to 

any employee of the Federal Government to keep secret any information at all. Executive Privilege, Secrecy in Government, Freedom of Information: Hearings Before 

the Senate Government Operations Subcommittee on Intergovernmental Relations, 

93d Congress, 1st Sess. (1973), I:18 passim. For a strong argument that the doctrine 

lacks any constitutional or other legal basis, see R. BERGER, EXECUTIVE PRIVILEGE:

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, 

either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its 

power to impeach the President, Vice President, or civil officers of 

the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the 

same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need 

may over-balance the presidential claim to a greater degree than 

that of a private individual. The judicial precedents are so meager 

yet that it is not possible so to state, however. 

The doctrine of executive privilege defines the authority of the 

President to withhold documents or information in his possession 

or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any 

such privilege, but it has been claimed that the privilege derives 

from the constitutional provision of separation of powers and from 

a necessary and proper concept respecting the carrying out of the 

duties of the presidency imposed by the Constitution. Historically, 

assertion of the doctrine has been largely confined to the areas of 

foreign relations, military affairs, pending investigations, and 

intragovernmental discussions. 550 During the Nixon AdministraVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00122 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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A CONSTITUTIONAL MYTH (1974). The book, however, precedes the Court decision in 

Nixon.

551There are also, of course, instances of claimed access for other purposes, for 

which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. § 552, provides 

generally for public access to governmental documents. In 522(b), however, nine 

types of information are exempted from coverage, several of which relate to the 

types as to which executive privilege has been asserted, such as matter classified 

pursuant to executive order, interagency or intra-agency memoranda or letters, and 

law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC 

v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe 

Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F.2d 820 

(D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). 552See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of 

Criminal Procedure. The earliest judicial dispute involving what later became 

known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 

(C.C.D. Va. 1807), in which defendant sought certain exculpatory material from 

President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance. 553 E.g., Alderman v. United States, 394 U.S. 165 (1968). 554Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.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. 555 345 U.S. 1 (1953). 

tion, 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. 551 In

criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process 

clause is guaranteed access to relevant exculpatory information in 

the possession of the prosecution. 552 Generally speaking, when the 

prosecution is confronted with a judicial order to turn over information to a defendant that it does not wish to make available, the 

prosecution has the option of dropping the prosecution and thus 

avoiding disclosure, 553 but that alternative may not always be 

available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into 

the confines of the Department of Justice could this possibility 

have been realized. 554

The civil type of case is illustrated in United States v. Reynolds, 555 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force 

plane testing secret electronics equipment. Plaintiffs sought discovery of the Air Force’s investigation report on the accident, and 

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556 345 U.S. at 7-8, 9-10, 11. Withholding of information relating to governmental employees’ clearances, disciplines, or discharges often raise claims of such 

privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. 

Egan, 484 U.S. 518 (1988). After the Court approved and implemented a governmental secrecy agreement with some of its employees, Snepp v. United States, 444 

U.S. 507 (1980), the Government expanded its secrecy program with respect to classified and ‘‘classifiable’’ information. When Congress sought to curb this policy, the 

Reagan Administration convinced a federal district judge to declare the restrictions 

void as invasive of the President’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 Government 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). And see Totten v. United States, 92 U.S. 

105 (1875). 557 United States v. Nixon, 418 U.S. 683, 692-97 (1974). 

sure of military secrets. The Court accepted the Government’s 

claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so 

far as to force disclosure of the thing the privilege is designed to 

protect. The showing of necessity of the private litigant for the information should govern in each case how far the trial court should 

probe; where the necessity is strong, the court should require a 

strong showing of the appropriateness of the privilege claim but 

once satisfied of the appropriateness no matter how compelling the 

need the privilege prevails. 556

Prosecutorial and Grand Jury Access to Presidential 

Documents.—Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the 

President, since he has ultimate direction of federal prosecuting 

agencies, but the Watergate Special Prosecutor, being in a unique 

legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations 

and other documents relating to the commission of criminal actions. 557 While holding that the subpoenas were valid and should 

be obeyed, the Supreme Court recognized the constitutional status 

of 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 governVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00124 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 557

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

558 418 U.S.at 707-708. Presumably, the opinion recognizes a similar power existent in the federal courts to preserve the confidentiality of judicial deliberations, 

cf. New York Times Co. v. United States, 403 U.S. 713, 752 n.3 (1971) (Chief Justice 

Burger dissenting), and in each House of Congress to treat many of its papers and 

documents as privileged. Cf. Soucie v. David, 448 F.2d 1067, 1080, 1081-1982 

(C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation and 

Speech Review Policies: Hearings Before the Senate Committee on Armed Services, 

87th Congress, 2d Sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 

F.2d 184 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911 (1976); United States 

v. Ehrlichman, 389 F. Supp. 95 (D.D.C. 1974). 

ment officials and those who advise and assist them in the performance of their duties. ‘‘A President and those who assist him 

must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be 

unwilling to express except privately.’’ The separation of powers 

basis derives from the conferral upon each of the branches of the 

Federal Government of powers to be exercised by each of them in 

great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers. 558

However, the Court continued, the privilege is not absolute. 

The federal courts have the power to construe and delineate claims 

arising under express and implied powers. Deference is owed the 

constitutional decisions of the other branches, but it is the function 

of the courts to exercise the judicial power, ‘‘to say what the law 

is.’’ The Judicial Branch has the obligation to do justice in criminal 

prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those 

clearly privileged, are to be made available. Thus, while the President’s claim of privilege is entitled to deference, the courts must 

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 

558 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

559 418 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). 560 433 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). 

for confidentiality in the communications of his office is general in 

nature, whereas the constitutional need for production of relevant 

evidence in a criminal proceeding is specific and central to the fair 

adjudication of a particular criminal case in the administration of 

justice. ...’’ 

‘‘We conclude that when the ground for asserting privilege as 

to subpoenaed materials sought for use in a criminal trial is based 

only on the generalized interest in confidentiality, it cannot prevail 

over the fundamental demands of due process of law in the fair administration of criminal justice.’’ 559

Obviously, this decision leaves much unresolved. It does recognize the constitutional status of executive privilege as a doctrine. 

It does affirm the power of the courts to resolve disputes over 

claims of the privilege. But it leaves unsettled just how much 

power the courts have to review claims of privilege to protect what 

are claimed to be military, diplomatic, or sensitive national security 

secrets. It does not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases; nor 

does it touch upon denial of information to Congress. 

Neither does the Court’s decision in Nixon v. Administrator of 

General Services 560 elucidate any of these or other questions that 

may be raised to any great degree. In upholding the Presidential 

Recordings and Materials Preservation Act, which directed the 

Government to take custody of former President Nixon’s records to 

be screened, catalogued, and processed by professional archivists in 

GSA, the Court viewed the assertion of privilege as directed only 

to the facial validity of the requirement of screening by executive 

branch professionals and not at all related to the possible public 

disclosure of some of the records. The decision does go beyond the 

first decision’s recognition of the overbalancing force of the necessity for disclosure in criminal trials to find ‘‘comparable’’ ‘‘adequate 

justifications’’ for congressional enactment of the law, including the 

preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to 

public needs as well as each President’s wishes, the preservation 

of the materials as a source for facilitating a full airing of the 

ART. II—EXECUTIVE DEPARTMENT 559

Sec. 2—Powers, Duties of the President Cl. 2—Treaties and Appointment of Officers 

561See the extensive discussion in Shane, Legal Disagreement and Negotiation 

in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 MINN. L. REV. 461 (1987). 

events leading to the former President’s resignation for public and 

congressional understanding, and preservation for the light shed 

upon issues in civil or criminal litigation. While interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act’s passage as to leave the case of little value as precedent. 

Congressional Access to Executive Branch Information.—

Presidents and Congresses have engaged in protracted disputes 

over provision of information from the former to the latter, but the 

basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied. 561 The basic premise of the concept of executive 

privilege, as it is applied to resist requests for information from 

Congress as from private parties with or without the assistance of 

the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere 

independent of control or direction of the other branches. In this 

context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, 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 argument. The Senate Select Committee on Presidential Campaign 

Activities, however, elected to seek a declaratory judgment in the 

courts with respect to the President’s obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of 

basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of RepresentaVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00127 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
560 ART. II—EXECUTIVE DEPARTMENT 

Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate 

562Senate 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). 563President Nixon’s position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The 

impeachment article and supporting material are set out in H. Rep. No. 93-1305, 

93d Cong., 2d Sess. (1974). 564For consideration of various proposals by which Congress might proceed, 

see Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege 

Disputes Precipitated by Congressional Subpoenas, 21 HARV. J. LEGIS. 145 (1984); 

Brand & Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly 

Means by Which Congress May Enforce Investigative Demands Against Executive 

Branch Officials, 36 CATH. U. L. REV. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 DUKE L.

J. 1333. 

tives. 562 The House Judiciary Committee subpoenas were similarly 

rejected by the President, but instead of going to the courts for enforcement, the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. 563

Congress has considered bills by which Congress would authorize 

congressional committees to go to court to enforce their subpoenas; 

the bills did not purport to define executive privilege, although 

some indicate a standard by which the federal court is to determine 

whether the material sought is lawfully being withheld from Congress. 564 The controversy gives little indication at the present time 

of abating, and it may be assumed that whenever the Executive 

and Congress are controlled by different political parties there will 

be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.

Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by 

granting Commissions which shall expire at the End of their 

next Session. 

RECESS APPOINTMENTS 

Setting out from the proposition that the very nature of the executive power requires that it shall always be ‘‘in capacity for action,’’ Attorneys General early came to interpret the word ‘‘happen’’ 

in the phrase ‘‘all vacancies that may happen’’ to mean ‘‘happen to 

exist,’’ and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in 

the first instance, or for whatever reason, if it still continues after 

the Senate has ceased to sit and so cannot be consulted, the PresiVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00128 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 561

Sec. 2—Powers, Duties of the President Cl. 3—Vacancies During Recess of Senate 

565See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 (1832); 3:673 (1841); 

4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 (1866); 12:455 (1868); 14:563 

(1875); 15:207 (1877); 16:523 (1880); 18:28 (1884); 19:261 (1889); 26:234 (1907); 

30:314 (1914); 33:20 (1921). In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the 

previous session of Congress, but this distinction was rejected in the following Ops. 

Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In harmony with the 

opinions is United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). For the early practice with reference to recess appointments, see 2 G. HAYNES, THE SENATE OF THE

UNITED STATES 772-78 (1938). 566 23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 (1898). How long a ‘‘recess’’ must be to be actually a recess, a question here as in the pocket veto area, 

is uncertain. 3 O. L. C. 311, 314 (1979). A ‘‘recess,’’ however, may be merely ‘‘constructive,’’ as when a regular session succeeds immediately upon a special session. 

It was this kind of situation that gave rise to the once famous Crum incident.

See 3 W. Willoughby, supra at 1508-1509. 

567 5 U.S.C. § 5503. The provision has been on the books, in somewhat stricter 

form, since 12 Stat. 646 (1863). 568 United States v. Woodley, 751 F.2d 1008 (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 

the practice was not a good idea. 106 CONG. REC. 18130-18145 (1960). 

dent may fill it in the way described. 565 But a Senate ‘‘recess’’ does 

not include holidays, or very brief temporary adjournments, 566

while by an act of Congress, if the vacancy existed when the Senate 

was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed by the 

Senate. 567

Judicial Appointments 

Federal judges clearly fall within the terms of the recess-appointments clause. But, unlike with other offices, a problem exists. 

Article III judges are appointed ‘‘during good behavior,’’ subject 

only to removal through impeachment. A judge, however, who is 

given a recess appointment may be ‘‘removed’’ by the Senate’s failure to advise and consent to his appointment; moreover, on the 

bench, prior to Senate confirmation, she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack 

upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal 

court. 568

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 

562 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

569See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 

(1904); 28:95 (1909); 38:298 (1935). 570 N. SMALL, SOME PRESIDENTIAL INTERPRETATIONS OF THE PRESIDENCY (1932);

W. BINKLEY, THE PRESIDENT AND CONGRESS (2d ed. 1962); E. Corwin, supra, chs. 

1, 7. 571The 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. 

statute which designates the inferior officer who is to act in place 

of his immediate superior. But in the lack of such provision, both 

theory and practice concede the President the power to make the 

designation. 569

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 

Congress. 570 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, 571 but still earlier ones, 

Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imiVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00130 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 563

Sec. 3—Legislative and Other Duties of the President 

572See sources cited supra. 573Warren, Presidential Declarations of Independence, 10 B.U.L. REV. 1 (1930); 

3 W. Willoughby, supra at 1488-1492. 574 7 Ops. Atty. Gen. 186, 209 (1855). 575 5 J. MOORE, INTERNATIONAL LAW DIGEST 15-19 (1906). 576 Id. at 4:473-548; 5:19-32. 577Opinion 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). 

tators. 572 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. 573 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,’’ 574 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. 575 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. 576 Furthermore, this power makes the President the sole mouthpiece of the nation in its dealing with other nations.

The Presidential Monopoly 

Wrote Jefferson in 1790: ‘‘The transaction of business with foreign nations is executive altogether. It belongs, then, to the head 

of that department, except as to such portions of it as are specially 

submitted to the Senate. Exceptions are to be construed strictly.’’ 577 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 

564 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

578 4 J. Moore, supra at 680-81. 579This measure is now contained in 18 U.S.C. § 953. 580See 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. 581 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). 582S. Doc. No. 56, 54th Congress, 2d Sess. (1897). 

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.’’ 578

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,’’ 579

which, ‘‘more honored in the breach than the observance,’’ still survives on the statute books. 580 The year following, John Marshall, 

then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great 

Britain under the 27th article of the Jay Treaty, instead of leaving 

the business to the courts. He said: ‘‘The President is the sole 

organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign 

nation can only be made on him. He possesses the whole Executive 

power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to 

be performed through him.’’ 581 Ninety-nine years later, a Senate 

Foreign Relations Committee took occasion to reiterate Marshall’s 

doctrine with elaboration. 582

A Formal or a Formative Power.—In his attack, instigated 

by Jefferson, upon Washington’s Proclamation of Neutrality in 

ART. II—EXECUTIVE DEPARTMENT 565

Sec. 3—Legislative and Other Duties of the President 

583 1 LETTERS AND OTHER WRITINGS OF JAMES MADISON 611 (1865). 584 No. 69 (J. Cooke ed. 1961), 468. 

1793 at the outbreak of war between France and Great Britain, 

Madison advanced the argument that all large questions of foreign 

policy fell within the ambit of Congress, by virtue of its power ‘‘to 

declare war,’’ and in support of this proposition he disparaged the 

presidential function of reception: ‘‘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.’’ 583

The President’s Diplomatic Role.—Hamilton, although he 

had expressed substantially the same view in The Federalist regarding the power of reception, 584 adopted a very different conception of it in defense of Washington’s proclamation. Writing under 

the pseudonym, ‘‘Pacificus,’’ he said: ‘‘The right of the executive to 

receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers 

are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between 

the United States and such nation, involves the power of continuing or suspending its operation. For until the new government 

is acknowledged, the treaties between the nations, so far at least 

as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a 

consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it 

to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, 

the unqualified acknowledgment of the new government would 

have put the United States in a condition to become as an associate 

in the war with France, and would have laid the legislature under 

566 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

585Letter of Pacificus, No. 1, 7 WORKS OF ALEXANDER HAMILTON 76, 82-83 (J. 

Hamilton ed., 1851). 586 4 J. Moore, supra at 680-81. 

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.’’ 585

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.’’ 586

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 

ART. II—EXECUTIVE DEPARTMENT 567

Sec. 3—Legislative and Other Duties of the President 

587Letters of Helvidius, 5 WRITINGS OF JAMES MADISON 133 (G. Hunt ed., 1905). 588 1 J. Moore, supra, 243-44. See Restatement, Foreign Relations §§ 204, 205. 

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.’’ 587

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 cases, the recognition 

was given by the Executive solely on his own responsibility.’’ 588

The Case of Cuba.—The question of Congress’ 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, 

568 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

589S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20-22. 590Said Senator Nelson of Minnesota: ‘‘The President has asked us to give him 

the right to make war to expel the Spaniards from Cuba. He has asked us to put 

that power in his hands; and when we are asked to grant that power—the highest 

power given under the Constitution—we have the right, the intrinsic right, vested 

in us by the Constitution, to say how and under what conditions and with what allies that war-making power shall be exercised.’’ 31 CONG. REC. 3984 (1898). 

technically speaking, is distinctly a diplomatic matter. It is properly evidenced either by sending a public minister to the Government thus recognized, or by receiving a public minister therefrom. 

The latter is the usual and proper course. Diplomatic relations with 

a new power are properly, and customarily inaugurated at the request of that power, expressed through an envoy sent for the purpose. The reception of this envoy, as pointed out, is the act of the 

President alone. The next step, that of sending a public minister 

to the nation thus recognized, is primarily the act of the President. 

The Senate can take no part in it at all, until the President has 

sent in a nomination. Then it acts in its executive capacity, and, 

customarily, in ‘executive session.’ The legislative branch of the 

Government can exercise no influence over this step except, very 

indirectly, by withholding appropriations. . . . Nor can the legislative 

branch of the Government hold any communications with foreign 

nations. The executive branch is the sole mouthpiece of the nation 

in communication with foreign sovereignties.’’ 

‘‘Foreign nations communicate only through their respective 

executive departments. Resolutions of their legislative departments 

upon diplomatic matters have no status in international law. In the 

department of international law, therefore, properly speaking, a 

Congressional recognition of belligerency or independence would be 

a nullity. . . . Congress can help the Cuban insurgents by legislation 

in many ways, but it cannot help them legitimately by mere declarations, or by attempts to engage in diplomatic negotiations, if 

our interpretation of the Constitution is correct. That it is correct 

... [is] shown by the opinions of jurists and statesmen of the 

past.’’ 589 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. 590 The recognition of the Union of Soviet Socialist 

Republics in 1933 was an exclusively presidential act. 

ART. II—EXECUTIVE DEPARTMENT 569

Sec. 3—Legislative and Other Duties of the President 

591President 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. 592 1 MESSAGES AND PAPERS OF WOODROW WILSON 58 (A. Shaw ed., 1924). 

The Power of Nonrecognition.—The potentialities of nonrecognition were conspicuously illustrated by President Woodrow 

Wilson when he refused, early in 1913, to recognize Provisional 

President Huerta as the de facto government of Mexico, thereby 

contributing materially to Huerta’s downfall the year following. At 

the same time, Wilson announced a general policy of nonrecognition in the case of any government founded on acts of violence, and 

while he observed this rule with considerable discretion, he consistently refused to recognize the Union of Soviet Socialist Republics, 

and his successors prior to President Franklin D. Roosevelt did the 

same. The refusal of the Hoover administration to recognize the 

independence of the Japanese puppet state of Manchukuo early in 

1932 was based on kindred grounds. Similarly, the nonrecognition 

of the Chinese Communist Government from the Truman Administration to President Nixon’s de facto recognition through a visit in 

1972—not long after the People’s Republic of China was admitted 

to the United Nations and Taiwan excluded—proved to be an important part of American foreign policy during the Cold War. 591

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.’’ 592

The fact is, of course, that Congress has enormous powers, the 

support of which is indispensable to any foreign policy. In the long 

run, Congress is the body that lays and collects taxes for the common defense, that creates armies and maintains navies, although 

it does not direct them, that pledges the public credit, that declares 

war, that defines offenses against the law of nations, that regulates 

foreign commerce; and it has the further power ‘‘to make all laws 

which shall be necessary and proper’’—that is, which it deems to 

be such—for carrying into execution not only its own powers but 

570 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

593 55 Stat. 31 (1941). 594 E. Corwin, supra at 184-93, 423-25, 435-36. 595Legislation includes the War Powers Resolution, P.L. 93-148, 87 Stat. 555 

(1953), 50 U.S.C. §§ 1541-1548; the National Emergencies Act, P.L. 94-412, 90 Stat. 

1255 (1976), 50 U.S.C. §§ 1601-1651 (establishing procedures for presidential declaration and continuation of national emergencies and providing for a bicameral congressional veto); the International Emergency Economic Powers Act, P.L. 95-223, 91 

Stat. 1626 (1977), 50 U.S.C. §§ 1701-1706 (limiting the great economic powers conferred on the President by the Trading with the Enemy Act of 1917, 40 Stat. 415, 

50 U.S.C. App.§ 5(b), to times of declared war, and providing new and more limited 

powers, with procedural restraints, for nonwartime emergencies); and see the Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 U.S.C. §§ 

1330, 1602-1611 (removing from executive control decisions concerning the liability 

of foreign sovereigns to suit). 596 ‘‘We may say that power to legislate for emergencies belongs in the hands 

of Congress, but only Congress itself can prevent power from slipping through its 

fingers.’’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Justice 

Jackson concurring). For an account of how the President usually prevails, see H.

KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRANCONTRA AFFAIRS (1990).

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 593 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. 594 Disillusionment with presidential policies in the context of the Vietnamese conflict led Congress to legislate restrictions, not only with respect to the discretion of the 

President to use troops abroad in the absence of a declaration of 

war, but also limiting his economic and political powers through 

curbs on his authority to declare national emergencies. 595 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. 596

The Doctrine of Political Questions 

It is not within the province of the courts to inquire into the 

policy underlying action taken by the ‘‘political departments’’—Congress and the President—in the exercise of their conceded powers. 

This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence 

of facts and even questions of law, which the Court would normally 

regard as falling within its jurisdiction. Such questions are termed 

ART. II—EXECUTIVE DEPARTMENT 571

Sec. 3—Legislative and Other Duties of the President 

597 27 U. S. (2 Pet.) 253 (1829). 598 27 U.S. at 308. 599 38 U.S. (13 Pet.) 415 (1839). 

‘‘political questions,’’ and are especially common in the field of foreign relations. The leading case is Foster v. Neilson, 597 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 of 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 said: ‘‘If those departments which are intrusted with the foreign 

intercourse of the nation, which assert and maintain its interests 

against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it 

claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction 

is to be denied. A question like this, respecting the boundaries of 

nations, is, as has been truly said, more a political than a legal 

question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.’’ 598 The doctrine thus 

clearly stated is further exemplified, with particular reference to 

presidential action, by Williams v. Suffolk Ins. Co. 599 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.’’ 

572 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

600 38 U.S. at 420. 601Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829). 602Williams v. Suffolk Ins. Co., 38 U.S. (13 Pet.) 415 (1839). 603 United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818). 604Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853). 605 Jones v. United States, 137 U.S. 202 (1890); Oetjen v. Central Leather Co., 

246 U.S. 297 (1918). 606 In re Baiz, 135 U.S. 403 (1890). 607 Neely v. Henkel, 180 U.S. 109 (1901). 608Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 229 U.S. 447 

(1913). 609 333 U.S. 103 (1948). 

‘‘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.’’ 600 Thus, the right to determine the boundaries of the country is a political function, 601 as is also the right 

to determine what country is sovereign of a particular region, 602 to

determine whether a community is entitled under international 

law to be considered a belligerent or an independent state, 603 to determine whether the other party has duly ratified a treaty, 604 to

determine who is the de jure or de facto ruler of a country, 605 to

determine whether a particular person is a duly accredited diplomatic agent to the United States, 606 to determine how long a military occupation shall continue in fulfillment of the terms of a treaty, 607 to determine whether a treaty is in effect or not, although 

doubtless an extinguished treaty could be constitutionally renewed 

by tacit consent. 608

Recent Statements of the Doctrine.—The assumption underlying the refusal of courts to intervene in such cases is well stated 

in the case of Chicago & S. Airlines v. Waterman S.S. Corp. 609

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 acVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00140 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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Sec. 3—Legislative and Other Duties of the President 

610 333 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 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, P.L. 94- 

583, 90 Stat. 2891, 28 U.S.C. §§ 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d), 1602-1611, 

provided for judicial determination of applicability of the doctrine but did adopt the 

executive position with respect to no applicability for commercial actions of a foreign 

state. E.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). See Restatement, Foreign Relations, §§ 451-63 (including Introductory Note, pp. 390-396). 611 335 U.S. 160 (1948). 

tions 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.’’ 610

To the same effect are the Court’s holding and opinion in 

Ludecke v. Watkins, 611 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 disVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00141 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
574 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

612 335 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 

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. 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. 613 369 U.S. 186 (1962). 614 369 U.S. at 217. 

integration 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.’’ 612

A Court review of the political question doctrine is found in 

Baker v. Carr. 613 There, Justice Brennan noted and elaborated the 

factors which go into making a question political and inappropriate 

for judicial decision. 614 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 

ART. II—EXECUTIVE DEPARTMENT 575

Sec. 3—Legislative and Other Duties of the President 

615 369 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, 229-230 (1986) (Fisherman’s Protective Act does not completely remove Secretary of Commerce’s discretion in certifying that foreign nationals are ‘‘diminishing the effectiveness of’’ an international agreement by taking 

whales in violation of quotas set pursuant to the agreement). 616Goldwater 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). 617 ‘‘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). 

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.’’ 615 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. 616 In any event, the 

Court, in adjudicating on the merits disputes in which the foreign 

relations powers are called into question, follows a policy of such 

deference to executive and congressional expertise that the result 

may not be dissimilar to a broad application of the political question doctrine. 617

THE PRESIDENT AS LAW ENFORCER 

Powers Derived From This Duty 

The Constitution does not say that the President shall execute 

the laws, but that ‘‘he shall take care that the laws be faithfully 

executed,’’ i.e., by others, who are commonly, but not always with 

strict accuracy, termed his subordinates. What powers are implied 

from this duty? In this connection, five categories of executive 

power should be distinguished: first, there is that executive power 

which the Constitution confers directly upon the President by the 

opening clause of article II and, in more specific terms, by succeeding clauses of the same article; secondly, there is the sum total 

of the powers which acts of Congress at any particular time confer 

upon the President; thirdly, there is the sum total of discretionary 

576 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

618 Notice that 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 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. 619 7 Ops. Atty. Gen. 453, 464-65 (1855). 620 Cf. 2 Stat. 78. The provision has long since dropped out of the statute book. 

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? 618

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.’’ 619 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. 620 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 

ART. II—EXECUTIVE DEPARTMENT 577

Sec. 3—Legislative and Other Duties of the President 

621 Runkle v. United States, 122 U.S. 543 (1887). 622 Cf. In re Chapman, 166 U.S. 661, 670-671 (1897), where it was held that presumptions in favor of official action ‘‘preclude collateral attack on the sentences of 

courts-martial.’’ See also United States v. Fletcher, 148 U.S. 84, 88-89 (1893); 

Bishop v. United States, 197 U.S. 334, 341-342 (1905), both of which in effect repudiate Runkle. 623The 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 v. 

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). 624 42 U.S. (1 How.) 290 (1843). 625 3 Stat. 723 (1823), now covered in 31 U.S.C. § 3324. 626 42 U.S. (1 How.) at 297-98. 627 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 

required by the 65th Article of War. 621 This case has, however, 

been virtually overruled, and at any rate such cases are exceptional. 622

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. 623 Williams v. United States 624 involved an act of Congress which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction 

by the President. 625 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. 626 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. 627

578 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

congressional limits on the removal of some officers. Morrison v. Olson, 487 U.S. 654 

(1988). 628 1 J. Richardson, supra at 348, 360. 629 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). 630There 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).

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. 628 A few other instances of deferrals or 

refusals to spend occurred in the Nineteenth and early Twentieth 

Centuries, but it was only with the Administration of President 

Franklin Roosevelt that a President refused to spend moneys for 

the purposes appropriated. Succeeding Presidents expanded upon 

these precedents, and in the Nixon Administration a well-formulated plan of impoundments was executed in order to reduce public 

spending and to negate programs established by congressional legislation. 629

Impoundment 630 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 

ART. II—EXECUTIVE DEPARTMENT 579

Sec. 3—Legislative and Other Duties of the President 

631 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). 

632 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). 

633Train 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). 

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. 631

On the other hand, it was argued that Congress’ powers under 

Article I, § 8, were fully adequate to support its decision to authorize certain programs, to determine the amount of funds to be spent 

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’ 

power ‘‘to make all Laws which shall be necessary and proper for 

carrying into Execution’’ the enumerated powers of Congress and 

‘‘all other Powers vested by this Constitution in the Government of 

the United States, or in any Department or officer thereof.’’ 632

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. 633 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 

580 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

634 Congressional Budget and Impoundment Control Act, P.L. 93-344, title X, §§ 

1001-1017, 88 Stat. 332 (1974), as amended, 2 U.S.C. §§ 681-88. 635Originally 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’ Power of the Purse, 97 YALE

L. J. 1343, 1370-1377 (1988). 636L. Fisher, supra at 154-57. 637 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). 638 §§ 1011(1), 1012, 1013, 88 Stat. 333-34, 2 U.S.C. §§ 628(1), 683, 684. 639 2 U.S.C. § 683. 640 § 1013, 88 Stat. 334. Because the Act was a compromise between the House 

of Representatives and the Senate, numerous questions were left unresolved; one 

of impoundments, and for court actions by the Comptroller General 

to compel spending or obligation of funds. 634

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. 635 Prior to its amendment, this law had permitted the President to ‘‘apportion’’ funds ‘‘to provide for contingencies, or to effect savings whenever savings are made possible by 

or through changes in requirements, greater efficiency of operations, or other developments subsequent to the date on which 

such appropriation was made available.’’ President Nixon had relied on this ‘‘other developments’’ language as authorization to impound, for what in essence were policy reasons. 636 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.’’ 637

‘‘Policy’’ impoundments were to be reported to Congress by the 

President as permanent rescissions and, perhaps, as temporary deferrals. 638 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. 639 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. 640 With the decision 

ART. II—EXECUTIVE DEPARTMENT 581

Sec. 3—Legislative and Other Duties of the President 

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. 641 462 U.S. 919 (1983). 642 City of New Haven v. United States, 809 F.2d 900 (D.C. Cir. 1987). 643P. L. 100-119, title II, § 206(a), 101 Stat. 785, 2 U.S.C. § 684. 644P. 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. 645See Stith, Rewriting the Fiscal Constitution: The Case of Gramm-RudmanHollings, 76 CALIF. L. REV. 593 (1988). 

in INS v. Chadha, 641 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. 642 Thus, the entire deferral section was 

inoperative. Congress, in 1987, enacted a more restricted authority, 

limited to deferrals only for those purposes set out in the Anti-Deficiency Act. 643

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 

Congress, and by the Balanced Budget and Emergency Deficit Control Act of 1985. 644 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. 645 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 

582 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

646 1 ANNALS OF CONG. 495, 499 (1789). 647 Id. at 611-612. 648 5 U.S. (1 Cr.) 137 (1803). 649 5 U.S. (1 Cr.) at 165-66. 650 1 Ops. Atty. Gen. 624 (1823). 

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.’’ 646

But this was said with respect to the office of the Secretary of 

State, and when shortly afterward the question arose as to the 

power of Congress to regulate the tenure of the Comptroller of the 

Treasury, Madison assumed a very different attitude, conceding in 

effect that this office was to be an arm of certain of Congress’ own 

powers and should therefore be protected against the removal 

power. 647 And in Marbury v. Madison, 648 Chief Justice Marshall 

traced a parallel distinction between the duties of the Secretary of 

State under the original act which had created a ‘‘Department of 

Foreign Affairs’’ and those which had been added by the later act 

changing the designation of the department to its present one. The 

former were, he pointed out, entirely in the ‘‘political field,’’ and 

hence for their discharge the Secretary was left responsible absolutely to the President. The latter, on the other hand, were exclusively of statutory origin and sprang from the powers of Congress. 

For these, therefore, the Secretary was ‘‘an officer of the law’’ and 

‘‘amenable to the law for his conduct.’’ 649

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. 650

The opinion entirely overlooked the important question of the location of the power to interpret the law, which is inevitably involved 

in any effort to enforce it. The diametrically opposed theory that 

Congress is unable to vest any head of an executive department, 

even within the field of Congress’ specifically delegated powers, 

with any legal discretion which the President is not entitled to control was first asserted in unambiguous terms in President JackVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00150 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 583

Sec. 3—Legislative and Other Duties of the President 

651 3 J. Richardson, supra at 1288. 652 Id. at 1304. 653 37 U.S. (12 Pet.) 524 (1838). 

son’s Protest Message of April 15, 1834, 651 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.’’ 652 In short, the President’s removal power, in this case unqualified, was the sanction provided by the Constitution for his 

power and duty to control his ‘‘subordinates’’ in all their official actions of public consequence. 

Congressional Power Versus Presidential Duty to the 

Law.—The Court’s 1838 decision in Kendall v. United States ex rel. 

Stokes, 653 shed more light on congressional power to mandate actions by executive branch officials. The United States owed one 

Stokes money, and when Postmaster General Kendall, at Jackson’s 

instigation, refused to pay it, Congress passed a special act ordering payment. Kendall, however, still proved noncompliant, whereupon Stokes sought and obtained a mandamus in the United States 

circuit court for the District of Columbia, and on appeal this decision was affirmed by the Supreme Court. While Kendall, like 

Marbury v. Madison, involved the question of the responsibility of 

a head of a department for the performance of a ministerial duty, 

the discussion by counsel before the Court and the Court’s own 

opinion covered the entire subject of the relation of the President 

to his subordinates in the performance by them of statutory duties. 

The lower court had asserted that the duty of the President under 

the faithful execution clause gave him no other control over the officer than to see that he acts honestly, with proper motives, but no 

power to construe the law and see that the executive action conforms to it. Counsel for Kendall attacked this position vigorously, 

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584 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

654 37 U.S. (12 Pet.) at 610. 655Myers v. United States, 272 U.S. 52 (1926); Morrison v. Olson, 487 U.S. 654 

(1988). 656Morrison v. Olson, 487 U.S. at 689-90. 

son, 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.’’ 654 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 the Myers case, on the 

one hand, and its decision in the Morrison case, on the other. 655

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. 656 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 

ART. II—EXECUTIVE DEPARTMENT 585

Sec. 3—Legislative and Other Duties of the President 

657 487 U.S. at 690-91. 658 487 U.S. at 691. 659 487 U.S. at 691-92. 

to perform his duties. 657 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. 658 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. 659

The ‘‘bright-line’’ rule previously observed no longer holds. 

Now, Congress has a great deal more leeway in regulating executive officials, but it must articulate its reasons carefully and observe the fuzzy lines set by the Court. 

Power of the President to Guide Enforcement of the Penal 

Law.—This matter also came to a head in ‘‘the reign of Andrew 

Jackson,’’ preceding, and indeed foreshadowing, the Duane episode 

by some months. ‘‘At that epoch,’’ Wyman relates in his Principles 

of Administrative Law, ‘‘the first amendment of the doctrine of 

centralism in its entirety was set forth in an obscure opinion upon 

an unimportant matter—The Jewels of the Princess of Orange, 2 

Opin. 482 (1831). These jewels . . . were stolen from the Princess by 

one Polari and were seized by the officers of the United States Customs in the hands of the thief. Representations were made to the 

President of the United States by the Minister of the Netherlands 

of the facts in the matter, which were followed by a request for return of the jewels. In the meantime the District Attorney was prosecuting condemnation proceedings in behalf of the United States 

which he showed no disposition to abandon. The President felt himself in a dilemma, whether if it was by statute the duty of the District Attorney to prosecute or not, the President could interfere and 

direct whether to proceed or not. The opinion was written by 

Taney, then Attorney General; it is full of pertinent illustrations as 

to the necessity in an administration of full power in the chief executive as the concomitant of his full responsibility. It concludes: If 

it should be said that, the District Attorney having the power to 

discontinue the prosecution, there is no necessity for inferring a 

right in the President to direct him to exercise it—I answer that 

the direction of the President is not required to communicate any 

new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and 

586 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

660 B. WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE

RELATIONS OF PUBLIC OFFICERS 231-32 (1903). 661 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, 180-181 (1886). 

For a recent analysis of the approach to determining the validity of presidential, or 

other executive, regulations and orders under purported congressional delegations 

or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301-16 

(1979). 662 In re Neagle, 135 U.S. 1 (1890). 

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.’’ 660

The President as Law Interpreter 

The power accruing to the President from his function of law 

interpretation preparatory to law enforcement is daily illustrated 

in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley 

Act, the Internal Security Act, and many lesser statutes. Nor is 

this the whole story. Not only do all presidential regulations and 

orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not 

transgress the Court’s reading of such statutes or of the Constitution, 661 but he sometimes makes law in a more special sense. In 

the famous Neagle case, 662 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, 

ART. II—EXECUTIVE DEPARTMENT 587

Sec. 3—Legislative and Other Duties of the President 

663 135 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. 664 236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923). 665 10 U.S.C. §§ 332, 333. The provisions were invoked by President Eisenhower 

when he dispatched troops to Little Rock, Arkansas, in 1957 to counter resistance 

to Federal District Court orders pertaining to desegregation of certain public schools 

in the Little Rock School District. Although the validity of his action was never expressly reviewed, the Court, in Cooper v. Aaron, 358 U.S. 1, 4, 18-19 (1958), rejected 

a contention advanced by critics of the legality of his conduct, namely, that the 

President’s constitutional duty to see to the faithful execution of the laws as implemented by the provisions quoted above, does not afford a sanction for the use of 

troops to enforce decrees of federal courts, inasmuch as the latter are not statutory 

enactments which alone are comprehended within the phrase, ‘‘laws of the United 

States.’’ According to the Court, a judicial decision interpreting a constitutional provision, specifically the Court’s interpretation of the Fourteenth Amendment enunciated ‘‘. . . in the Brown Case [Brown v. Board of Education, 347 U.S. 483 (1954)] 

is the supreme law of the land, and Art. VI of the Constitution makes it of binding 

effect ... .’’ 

our international relations, and all the protection implied by the 

nature of the government under the Constitution?’’ 663 Obviously,

an affirmative answer is assumed to the second branch of this inquiry, an assumption which is borne out by numerous precedents. 

And in United States v. Midwest Oil Company, 664 it was ruled that 

the President had, by dint of repeated assertion of it from an early 

date, acquired the right to withdraw, via the Land Department, 

public lands, both mineral and 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.’’ 

‘‘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 . . . .’’ 665

These quoted provisions of the United States Code consolidate 

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588 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

666 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. 667 25 U.S. (12 Wheat.) 19 (1827). 668 25 U.S. at 31-32. 669Wilson, Federal Aid in Domestic Disturbances, S. DOC. NO. 209, 57th Congress, 2d Sess. (1907), 51. 670 6 Ops. Atty. Gen. 446 (1854). By the Posse Comitatus Act of 1878, 20 Stat. 

152, 18 U.S.C. § 1385, it was provided that ‘‘it shall not be lawful to employ any 

part of the Army of the United States, as a posse comitatus, or otherwise, for the 

purpose of executing the laws, except in such cases and under such circumstances 

as such employment of said force may be expressly authorized by the Constitution 

or by act of Congress... .’’ The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General ‘‘that by Revised Statutes 5298 and 5300 

[10 U.S.C. §§ 332, 334] the military forces, under the direction of the President, 

could be used to assist a marshal. 16 Ops. Atty. Gen. 162.’’ B. RICH, THE PRESIDENTS AND CIVIL DISORDER 196 n.21 (1941). 671 12 Stat. (app.) 1258. 

bellion of 1792. 666 In Martin v. Mott, 667 which arose out of the War 

of 1812, it was held that the authority to decide whether the exigency had arisen belonged exclusively to the President. 668 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. 669 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, 670 a doctrine that Pierce himself improved 

upon two years later by asserting, with reference to the civil war 

then raging in Kansas, that it lay within his obligation to take care 

that the laws be faithfully executed to place the forces of the 

United States in Kansas at the disposal of the marshal there, to 

be used as a portion of the posse comitatus. Lincoln’s call of April 

15, 1861, for 75,000 volunteers was, on the other hand, a fresh invocation, though of course on a vastly magnified scale, of Jefferson’s conception of a posse comitatus subject to presidential call. 671

The provisions above extracted from the United States Code ratified this conception as regards the state militias and the national 

forces.

Suspension of Habeas Corpus by the President 

See Article I, § 9. 

ART. II—EXECUTIVE DEPARTMENT 589

Sec. 3—Legislative and Other Duties of the President 

672 212 U.S. 78 (1909). 673 In re Debs, 158 U.S. 564 (1895). 674 212 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. 

Preventive Martial Law 

The question of executive power in the presence of civil disorder is dealt with in modern terms in Moyer v. Peabody, 672 to

which the Debs case 673 may be regarded as an addendum. Moyer, 

a labor leader, brought suit against Peabody for having ordered his 

arrest during a labor dispute which occurred while Peabody was 

governor of Colorado. Speaking for a unanimous Court, one Justice 

being absent, Justice Holmes said: ‘‘Of course the plaintiff’s position is that he has been deprived of his liberty without due process 

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

on circumstances. It varies with the subject matter and the necessities of the situation. . . . The facts that we are to assume are that 

a state of insurrection existed and that the Governor, without sufficient reason but in good faith, in the course of putting the insurrection down held the plaintiff until he thought that he safely could 

release him.’’ 

‘‘. . . In such a situation we must assume that he had a right 

under the state constitution and laws to call out troops, as was 

held by the Supreme Court of the State. . . . That means that he 

shall make the ordinary use of the soldiers to that end; that he 

may kill persons who resist and, of course, that he may use the 

milder measure of seizing the bodies of those whom he considers 

to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent 

the exercise of hostile power. So long as such arrests are made in 

good faith and in the honest belief that they are needed in order 

to head the insurrection off, the Governor is the final judge and 

cannot be subjected to an action after he is out of office on the 

ground for his belief.’’ 

‘‘. . . When it comes to a decision by the head of the State upon 

a matter involving its life, the ordinary rights of individuals must 

yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process.’’ 674

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 

590 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

675 158 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. 676 47 Stat. 170 (1932), 29 U.S.C. §§ 101-115. 677 330 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. 

court forbidding the strike because of its interference with the 

mails and with interstate commerce. The question before the Supreme Court was whether this injunction, for violation of which 

Debs had been jailed for contempt of court, had been granted with 

jurisdiction. Conceding, in effect, that there was no statutory warrant for the injunction, the Court nevertheless validated it on the 

ground that the Government was entitled thus to protect its property in the mails, and on a much broader ground which is stated 

in the following passage of Justice Brewer’s opinion for the Court: 

‘‘Every government, entrusted, by the very terms of its being, with 

powers and duties to be exercised and discharged for the general 

welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other. . . . 

While it is not the province of the Government to interfere in any 

mere matter of private controversy between individuals, or to use 

its granted powers to enforce the rights of one against another, yet, 

whenever the wrongs complained of are such as affect the public 

at large, and are in respect of matters which by the Constitution 

are entrusted to the care of the Nation and concerning which the 

Nation owes the duty to all the citizens of securing to them their 

common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it 

from the courts, or prevent it from taking measures therein to fully 

discharge those constitutional duties.’’ 675

Present Status of the Debs Case.—Insofar as the use of injunctive relief in labor disputes is concerned, enactment of the Norris-LaGuardia Act 676 placed substantial restrictions on the power 

of federal courts to issue injunctions in such situations. Though, in 

United States v. UMW, 677 the Court held that the NorrisLaGuardia Act did not apply where the Government brought suit 

as operator of mines, language in the opinion appeared to go a good 

way toward repudiating the present viability of Debs, though more 

ART. II—EXECUTIVE DEPARTMENT 591

Sec. 3—Legislative and Other Duties of the President 

678Thus, 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. 679 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. 680 403 U.S. 713 (1971). 681On 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); and

see id. at 727, 729-30 (Justice Stewart, joined by Justice White, concurring). 

in terms of congressional limitations than of revised judicial opinion. 678 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. 679

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, 680 the

Government sought to enjoin two newspapers from publishing classified material given to them by a dissident former governmental 

employee. Though the Supreme Court rejected the Government’s 

claim, five of the six majority Justices relied on First Amendment 

grounds, apparently assuming basic power to bring the action in 

the first place, and three dissenters were willing to uphold the constitutionality of the Government’s action and its basic power on the 

premise that the President was authorized to protect the secrecy of 

governmental documents. Only one Justice denied expressly that 

power was lacking altogether to sue. 681

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 

592 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

682 30 Ops. Atty. Gen. 291 (1914). 683 7 J. MOORE, DIGEST OF INTERNATIONAL LAW 346-54 (1906). 684Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860). 

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.’’ 682

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. 683 Upon his return 

to the United States, Hollins was sued in a federal court by 

Durand for the value of certain property which was alleged to have 

been destroyed in the bombardment. His defense was based upon 

the orders of the President and Secretary of the Navy and was sustained by Justice Nelson, on circuit. 684 ‘‘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 

ART. II—EXECUTIVE DEPARTMENT 593

Sec. 3—Legislative and Other Duties of the President 

685 8 Fed. Cas. at 112. 686See 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). 687Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860). 688M. Offutt, supra at 5. 689 E. Corwin, supra at 198-201. 690 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). 

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.’’ 685

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. 686 The duty 

could be said to grow out of the inherent powers of the Chief Executive 687 or perhaps out of his obligation to ‘‘take Care that the 

Laws be faithfully executed.’’ 688 Although there were efforts made 

at times to limit this presidential power narrowly to the protection 

of persons and property rather than to the promotion of broader 

national interests, 689 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. 690 It has been the 

position of the Executive Branch that just compensation is owed all 

594 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

691 62 Stat. 143 (1948), as amended, 22 U.S.C. § 2191 et seq. See also 22 U.S.C. 

§ 1621 et seq. 

692 76 Stat. 260 (1962), 22 U.S.C. § 2370(e)(1). 

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

694 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). 

695 E.O. 10340, 17 Fed. Reg. 3139 (1952). 

696 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). 

697 103 F. Supp. 569 (D.D.C. 1952). 

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. 691 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. 692 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, 693 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. 694

PRESIDENTIAL ACTION IN THE DOMAIN OF 

CONGRESS: THE STEEL SEIZURE CASE 

To avert a nationwide strike of steel workers which he believed 

would jeopardize the national defense, President Truman, on April 

8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country. 695 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the 

appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress’ power to 

supercede his order, but Congress did not do so, either then or a 

few days later when the President sent up a special message. 696

On suit by the steel companies, a federal district court enjoined the 

seizure, 697 and the Supreme Court brought the case up prior to deVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00162 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 595

Sec. 3—Legislative and Other Duties of the President 

698The 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. 699 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). 700 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). 701 343 U.S. at 585-89. 

cision by the court of appeals. 698 Six-to-three, the Court affirmed 

the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree 

the opinion of the Court by Justice Black. 699 The holding and the 

multiple opinions represent a setback for the adherents of ‘‘inherent’’ executive powers, 700 but they raise difficult conceptual and 

practical problems with regard to presidential powers. 

The Doctrine of the Opinion of the Court 

The chief points urged in the Black opinion are the following: 

There was no statute that expressly or impliedly authorized the 

President to take possession of the property involved. On the contrary, in its consideration of the Taft-Hartley Act in 1947, Congress 

refused to authorize governmental seizures of property as a method 

of preventing work stoppages and settling labor disputes. Authority 

to issue such an order in the circumstances of the case was not deducible from the aggregate of the President’s executive powers 

under Article II of the Constitution; nor was the order maintainable as an exercise of the President’s powers as Commanderin-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.’’ 701

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 

596 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

702 6 U.S. (2 Cr.) 170 (1804). 

703 1 Stat. 613 (1799). 

704Little v. Barreme, 6 U.S. (2 Cr.) 170, 177-78 (1804). 

705 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. 

mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but 

Justice Clark would not concur, and in fact 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. 702 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. 703 Said the Chief Justice: ‘‘It 

is by no means clear that the president of the United States whose 

high duty it is to ‘take care that the laws be faithfully executed,’ 

and who is commander in chief of the armies and navies of the 

United States, might not, without any special authority for that 

purpose in the then existing state of things, have empowered the 

officers commanding the armed vessels of the United States, to 

seize and send into port for adjudication, American vessels which 

were forfeited by being engaged in this illicit commerce. But when 

it is observed that [an act of Congress] gives a special authority to 

seize on the high seas, and limits that authority to the seizure of 

vessels bound or sailing to a French port, the legislature seems to 

have prescribed that the manner in which this law shall be carried 

into execution, was to exclude a seizure of any vessel not bound to 

a French port.’’ 704

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. 705 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 

ART. II—EXECUTIVE DEPARTMENT 597

Sec. 3—Legislative and Other Duties of the President 

706 Cf. E. CORWIN, THE PRESIDENT’S CONTROL OF FOREIGN RELATIONS ch. 1 

(1916). 707 E. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 

COLUM. L. REV. 53, 58-59 (1953). 708 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952). 709 343 U.S. at 611-13, 620. 710 89 CONG. REC. 3992 (1943). 711 343 U.S. at 695-96 (dissenting opinion). 712Thus, 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. 713 Brief for the United States at 11, 75-77, United States v. Midwest Oil Co., 

236 U.S. 459 (1915). 

been based on acts of Congress. 706 Repeatedly, acts of the President have been in areas in which Congress could act as well. 707

Justice Frankfurter’s concurring opinion 708 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 the presidential orders as being done pursuant to ‘‘the 

Constitution and laws’’ generally, and eleven of which occurred in 

World War II. 709 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. 710 Chief Justice Vinson’s dissent dwelt 

liberally upon this opinion, 711 which reliance drew a disclaimer 

from Justice Jackson, concurring. 712

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. 713 ‘‘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 

598 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

714Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 667, 

689-91 (1952) (dissenting opinion). 715 343 U.S. at 585-87. 

and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can 

not exercise that function to any degree. But this is not to say that 

all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which 

have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar 

to Congress and fields which are peculiar to the Executive, so there 

are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by 

legislative action. These are not the fields of legislative prerogative, 

but fields within which the lawmaking powers may enter and 

dominate whenever it chooses. This situation results from the fact 

that the President is the active agent, not of Congress, but of the 

Nation. As such he performs the duties which the Constitution lays 

upon him immediately, and as such, also, he executes the laws and 

regulations adopted by Congress. He is the agent of the people of 

the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He 

obeys and executes the laws of Congress, but because Congress is 

enthroned in authority over him, not because the Constitution directs him to do so.’’ 

‘‘Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional 

duty to act for the national protection in situations not covered by 

the acts of Congress, and in which, even, it may not be said that 

his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled 

such a duty have not been rare in our history, though, being for 

the public benefit and approved by all, his acts have seldom been 

challenged in the courts.’’ 714

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. 715 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 

ART. II—EXECUTIVE DEPARTMENT 599

Sec. 3—Legislative and Other Duties of the President 

716 343 U.S. at 597. 717 343 U.S. at 602. 718 343 U.S. at 635-38. 719 343 U.S. at 639, 640. 720 343 U.S. at 657. 721 6 U.S. (2 Cr.) 170 (1804). 

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.’’ 716 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.’’ 717

Justice Jackson attempted a schematic representation of presidential powers, which ‘‘are not fixed but fluctuate, depending upon 

their disjunction or conjunction with those of Congress.’’ Thus, 

there are essentially three possibilities. ‘‘1. When the President 

acts pursuant to an express or implied authorization of Congress, 

his authority is at its maximum, for it includes all that he possess 

in his own right plus all that Congress can delegate. . . . 2. When

the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may 

have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with 

the expressed or implied will of Congress, his power is at its lowest 

ebb, for then he can rely only upon his own constitutional powers 

minus any constitutional powers of Congress over the matter. 

Courts can sustain exclusive presidential control in such a case 

only by disabling the Congress from acting upon the subject.’’ 718

The seizure in question was placed in the third category ‘‘because 

Congress has not left seizure of private property an open field but 

has covered it by three statutory policies inconsistent with this seizure.’’ Therefore, ‘‘we can sustain the President only by holding 

that seizure of such strike-bound industries is within his domain 

and beyond control by Congress.’’ 719 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. 720 Justice Clark placed his reliance on Little

v. Barreme, 721 inasmuch as Congress had laid down specific proceVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00167 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
600 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

722 343 U.S. at 662, 663. 723 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 

brings together as much combination of analysis and common sense as there is in 

this area’’. 724 71 U.S. (4 Wall.) 475 (1867). 725The 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. 726Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484-85 (1867) (argument of 

counsel).

dures for the President to follow, which he had declined to follow. 722

Despite the opinion of the Court, therefore, it seems clear that 

four of the six Justices in the majority were more moved by the fact 

that the President had acted in a manner considered and rejected 

by Congress in a field in which Congress was empowered to establish the rules, rules the President is to see faithfully executed, than 

with the fact that the President’s action was a form of ‘‘lawmaking’’ 

in a field committed to the province of Congress. The opinion of the 

Court, therefore, and its doctrinal implications must be considered 

with care, inasmuch as it is doubtful that that opinion does lay 

down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of ‘‘inherent’’ presidential powers—and they are significant—the implications for the 

area here under consideration are cloudy and have remained so 

from the time of the decision. 723

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION 

By the decision of the Court in Mississippi v. Johnson, 724 in

1867, the President was placed beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, 

whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial. 725 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. 726 The Court refused to permit the filing, 

using language construable as meaning that the President was not 

ART. II—EXECUTIVE DEPARTMENT 601

Sec. 3—Legislative and Other Duties of the President 

727 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 enforcereachable 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 restrained in its action by the judicial department; though the acts 

of both, when performed, are, in proper cases, subject to its cognizance.’’

‘‘The impropriety of such interference will be clearly seen upon 

consideration of its possible consequences.’’ 

‘‘Suppose the bill filed and the injunction prayed for allowed. 

If the President refuse obedience, it is needless to observe that the 

court is without power to enforce its process. If, on the other hand, 

the President complies with the order of the court and refuses to 

execute the acts of Congress, is it not clear that a collision may 

occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, 

in behalf of the President, thus endangered by compliance with its 

mandate, and restrain by injunction the Senate of the United 

States from sitting as a court of impeachment? Would the strange 

spectacle be offered to the public world of an attempt by this court 

to arrest proceedings in that court?’’ 727

602 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

ment 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). 728 United States v. Nixon, 418 U.S. 683 (1974). 729 418 U.S. at 706. 730 Id. 731 418 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). 732The 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 

Rare has been the opportunity for the Court to elucidate its 

opinion in Mississippi v. Johnson, and, in the Watergate tapes 

case, 728 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.’’ 729 However, the Court held, ‘‘neither the doctrine of separation of powers, nor the need for confidentiality of high-level 

communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under 

all circumstances.’’ 730 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.’’ 731

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. 732 It was arVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00170 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 603

Sec. 3—Legislative and Other Duties of the President 

ed. 1961), 442, 463, asserted that criminal trial would follow a successful impeachment. 733 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. 734Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 

73-965 (D.Md., filed October 5, 1973). 735 Nixon v. Fitzgerald, 457 U.S. 731 (1982). 736 457 U.S. at 748. 737 457 U.S. at 749. 738 457 U.S. at 750-52 n.31. 

gued 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. 733 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. 734

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. 735 The Court’s 

close decision was premised on the President’s ‘‘unique position in 

the constitutional scheme,’’ that is, it was derived from the Court’s 

inquiry of a ‘‘kind of ‘public policy’ analysis’’ of the ‘‘policies and 

principles that may be considered implicit in the nature of the 

President’s office in a system structured to achieve effective government under a constitutionally mandated separation of powers.’’ 736

While the Constitution expressly afforded Members of Congress immunity in matters arising from ‘‘speech or debate,’’ and while it 

was silent with respect to presidential immunity, the Court nonetheless considered such immunity ‘‘a functionally mandated incident of the President’s unique office, rooted in the constitutional 

tradition of the separation of powers and supported by our history.’’ 737 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, 738 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 

604 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

739 457 U.S. at 750. 740 457 U.S. at 751. 741 457 U.S. at 754. 742 457 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. 743 520 U.S. 681 (1997). 

policy responsibilities of utmost discretion and sensitivity,’’ 739 and

diversion of his energies by concerns with private lawsuits would 

‘‘raise unique risks to the effective functioning of government.’’ 740

Moreover, the presidential privilege is rooted in the separation-ofpowers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; 

‘‘merely private suit[s] for damages based on a President’s official 

acts’’ do not serve this ‘‘broad public interest’’ necessitating the 

courts to act. 741 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. 742

Unofficial Conduct 

In Clinton v. Jones, 743 the Court, in a case of first impression, 

held that the President did not have qualified immunity from suit 

for conduct alleged to have taken place prior to his election to the 

Presidency, which would entitle him to delay of 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 volVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00172 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
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Sec. 3—Legislative and Other Duties of the President 

744The 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. 745 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). 746 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. 

Stokes, 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). 747This 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. 748 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, 114 U.S. 

269 (1885); Belknap v. Schild, 161 U.S. 10 (1896). 749Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959). 

See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature 

as well as being within the scope of employment, before federal official is entitled 

to absolute immunity). 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 

ume 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. 744

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 745 or to compel by writ of mandamus the performance of a duty definitely required by law, 746 such suits being 

usually brought in the United States District Court for the District 

of Columbia. 747 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, 748 although immunity exists for anything, even malicious wrongdoing, done in the course of his duties. 749

606 ART. II—EXECUTIVE DEPARTMENT 

Sec. 3—Legislative and Other Duties of the President 

Government because the FTCA has not waived sovereign immunity. Cognizant of 

the temptation set before 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. 750 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 ccase involving 

domestic national security. Although the Court later held such warrantless wiretaps 

violated the Fourth Amendment, at the time of the Attorney General’s authorization 

this interpretation was not ‘‘clearly established,’’ and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. 

Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless 

search). 751 Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). 752See 28 U.S.C. § 1331. On deleting the jurisdictional amount, see P.L. 94-574, 

90 Stat. 2721 (1976), and P.L. 96-486, 94 Stat. 2369 (1980). If such suits are brought 

in state courts, they can be removed to federal district courts. 28 U.S.C. § 1442(a). 753Marbury 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.

Different rules prevail when such an official is sued for a ‘‘constitutional tort’’ for wrongs allegedly in violation of our basic charter, 750 although the Court has hinted that in some ‘‘sensitive’’ 

areas officials acting in the ‘‘outer perimeter’’ of their duties may 

be accorded an absolute immunity from liability. 751 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. 752

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. 753 By an opinion of the Attorney General many years 

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ART. II—EXECUTIVE DEPARTMENT 607

Sec. 4—Impeachment 

754 12 Ops. Atty. Gen. 306 (1867). 755 It should be remembered that, for various reasons, Marbury got neither commission nor office. The case assumes, in fact, the necessity of possession of his commission by the appointee. 756 Impeachment is the subject of several other provisions of the Constitution. 

Article I, § 2, cl. 5, gives to the House of Representatives ‘‘the sole power of impeachment.’’ Article I, § 3, cl. 6, gives to the Senate ‘‘the sole power to try all impeachments,’’ requires that Senators be under oath or affirmation when sitting for 

that purpose, stipulates that the Chief Justice of the United States is to preside 

when the President of the United States is tried, and provides for conviction on the 

vote of two-thirds of the members present. Article I, § 3, cl. 7, limits the judgment 

after impeachment to removal from office and disqualification from future federal 

office holding, but it allows criminal trial 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. 757 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). 

sion, still has a locus poenitentiae and may withhold it; nor is the 

appointee in office till he has this commission. 754 This is probably 

the correct doctrine. 755

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 756 were derived from English practice, but there are important differences. In 

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. 757 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. 

608 ART. II—EXECUTIVE DEPARTMENT 

Sec. 4—Impeachment 

758 Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV.at 653-67 (1916). 759 1 ANNALS OF CONG. 457, 473, 536 (1789). 760 Id. at 375, 480, 496-97, 562. 761 Id. at 372. 762The 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). 

763See the following section on Judges. 764 3 W. Willoughby, supra at 1448. 765This 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).

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. 758 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, 759 but Madison and others contended that this position was destructive of sound governmental practice, 760 and the 

view did not prevail. Impeachment, said Madison, was to be used 

to reach a bad officer sheltered by the President and to remove him 

‘‘even against the will of the President; so that the declaration in 

the Constitution was intended as a supplementary security for the 

good behavior of the public officers.’’ 761 While the language of section 4 covers any ‘‘civil officer’’ in the executive branch, 762 and covers judges as well, 763 it excludes military officers, 764 and the precedent was early established that it does not apply to members of 

Congress. 765

Judges.—Article III, § 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 

ART. II—EXECUTIVE DEPARTMENT 609

Sec. 4—Impeachment 

766See 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. 767For 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. 768The 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 Senthrough being labeled ‘‘civil officers.’’ 766 The records in the Convention make this a plausible though not necessary interpretation. 767

And, in fact, 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. 768 So setVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00177 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
610 ART. II—EXECUTIVE DEPARTMENT 

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ate 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). 769 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, P. 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, Pub. L. No. 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. 770See discussion supra of the differences between English and American impeachment.

tled 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. 769

Judgment—Removal and Disqualification 

Article II, section 4 provides that officers impeached and convicted ‘‘shall be removed from office’’; Article I, section 3, cl. 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. 770

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Sec. 4—Impeachment 

771 3 DESCHLER’S PRECEDENTS OF THE UNITED STATES HOUSE OF REPRESENTATIVES ch. 14, § 13.9. 

772See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 77-79 (2d ed. 2000). 773The 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 two-thirds 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). 774 1 M. Farrand, supra. 775 2 M. Farrand at 172, 186. 776 Id. at 499. 777 Id. at 550. 

The plain language of section four 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. 771 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, 772 the Senate has determined that disqualification may be accomplished by a simple majority vote. 773

Impeachable Offenses 

The Convention came to its choice of words describing the 

grounds for impeachment after much deliberation, but the phrasing 

derived directly from the English practice. The framers early adopted, on June 2, a provision that the Executive should be removable 

by impeachment and conviction ‘‘of mal-practice or neglect of 

duty.’’ 774 The Committee of Detail reported as grounds ‘‘Treason 

(or) Bribery or Corruption.’’ 775 And the Committee of Eleven reduced the phrase to ‘‘Treason, or bribery.’’ 776 On September 8, 

Mason objected to this limitation, observing that the term did not 

encompass all the conduct which should be grounds for removal; he 

therefore proposed to add ‘‘or maladministration’’ following ‘‘bribery.’’ Upon Madison’s objection that ‘‘[s]o vague a term will be 

equivalent to a tenure during pleasure of the Senate,’’ Mason suggested ‘‘other high crimes and misdemeanors,’’ which was adopted 

without further recorded debate. 777

612 ART. II—EXECUTIVE DEPARTMENT 

Sec. 4—Impeachment 

778 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). 779 Article III, § 3. 780The 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. 781 Berger, Impeachment for ‘‘High Crimes and Misdemeanors’’, 44 S. CAL. L. 

REV. 395, 400-415 (1971). 

782The 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 

replaced with ‘‘other crimes’’ ‘‘in order to comprehend all proper cases: it being 

doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.’’ Id. 

at 443. 783See id. at 64-69, 550-51. 784 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. 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). 785 1 ANNALS OF CONG. 372-73 (1789). 786 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) 

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. 778 Treason is defined in the Constitution. 779 Bribery is not, but it had a clear common-law meaning and is now well covered by statute. 780 ‘‘High

crimes and misdemeanors,’’ however, is an undefined and indefinite 

phrase, which, in England, had comprehended conduct not constituting indictable offenses. 781 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. 782

Debate prior to adoption of the phrase 783 and comments thereafter in the ratifying conventions 784 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’ 

‘‘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. 785 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior. 786

ART. II—EXECUTIVE DEPARTMENT 613

Sec. 4—Impeachment 

787See 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). 788 1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES OF THE UNITED STATES§§ 2356-2362 (1907). 789 3 HINDS’ PRECEDENTS at § 2361. 790The 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. 

The scope of the power has been the subject of continuing debate. 787

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 better.’’ 788 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense. 789 The issue 

was left unresolved, Chase’s acquittal owing more to the political 

divisions in the Senate than to the merits of the arguments. 790

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 quesVerDate Aug<04>2004 13:21 Oct 06, 2004 Jkt 077500 PO 00000 Frm 00181 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
614 ART. II—EXECUTIVE DEPARTMENT 

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791Some 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). 792 See 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2319-2341 

(1907) 793Ten 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.’’ 794Warren S. Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as 

the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. REV. 1209, 1229- 

1233 (1991). 795See, 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. 

tionable conduct that does not violate a criminal statute. 791 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. 792 Both

Judge Archbald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct probably not 

amounting to indictable offenses. 793

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 conduct for which he had been indicted and trial 

conduct. A separate question was what effect the court acquittal 

should have had. 794

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. 795

ART. II—EXECUTIVE DEPARTMENT 615

Sec. 4—Impeachment 

796 Act of March 2, 1867, ch. 154, 14 Stat. 430. 797 1 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT 88, 147 (1868). 798 Id. at 409. 799For an account of the Johnson proceedings, see WILLIAM H. REHNQUIST,

GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND

PRESIDENT ANDREW JOHNSON (1992). 800The 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). 801The 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’

The Johnson Impeachment 

President Andrew Johnson was impeached by the House on the 

ground that he had violated the ‘‘Tenure of Office’’ Act 796 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.’’ 797 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.’’ 798 The President’s acquittal by a single vote was no doubt 

not the result of a choice between the two theories, but the result 

may be said to have placed a gloss on the impeachment language 

approximating the theory of the defense. 799

The Nixon Impeachment Proceedings 

For the first time in over a hundred years, 800 Congress moved 

to impeach the President of the United States, a move forestalled 

only by the resignation of President Nixon on August 9, 1974. 801

616 ART. II—EXECUTIVE DEPARTMENT 

Sec. 4—Impeachment 

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). 802 H.R. Rep. No. 93-1305. 803 120 CONG. REC. 29361-62 (1974). 804 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 Aspects of Impeachment: An Overview, and Appendix I (Washington: 1974). And see

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). 805 Indeed, the Committee voted not to recommend impeachment for alleged income tax fraud, an essentially private crime not amounting to an abuse of power. 806The 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 

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. 802 Following President 

Nixon’s resignation, the House adopted a resolution to ‘‘accept’’ the 

House Judiciary Committee’s report recommending impeachment, 803 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. 804 The three articles approved by the Judiciary Committee were all premised on abuse of power, although the 

first article, involving obstruction of justice, also involved a criminal violation. 805 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, inasmuch as it was argued that he embodied the Executive Branch itself, while lesser executive officials and judges were 

not of that calibre. 806 That issue also remained unsettled, the SuVerDate Aug<04>2004 11:17 Oct 15, 2004 Jkt 077500 PO 00000 Frm 00184 Fmt 8222 Sfmt 8222 C:\CONAN\CON011.SGM PRFM99 PsN: CON011
ART. II—EXECUTIVE DEPARTMENT 617

Sec. 4—Impeachment 

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). 807The grand jury had named the President as an unindicted coconspirator in 

the case of United States v. Mitchell, et al., No. 74-110 (D.D.C.), apparently in the 

belief that he was not actually indictable while in office. The Supreme Court agreed 

to hear the President’s claim that the grand jury acted outside its authority, but 

finding that resolution of the issue was unnecessary to decision of the executive 

privilege claim it dismissed as improvidently granted the President’s petition for certiorari. United States v. Nixon, 418 U.S. 683, 687 n.2 (1974). 808 Approved by a vote of 228-206. 144 CONG. REC. H12,040 (daily ed. Dec. 19, 

1998). 809 Approved by a vote of 221-212. 144 CONG. REC. H12,041 (daily ed. Dec. 19, 

1998). 810 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 285-148. 144 CONG. REC.

H12,042 (daily ed. Dec. 19, 1998). 811The vote for acquittal was 55-45 on the grand jury perjury charge, and 50-50 

on the obstruction of justice charge. 145 CONG. REC. S1458-59 (daily ed. Feb. 12, 

1999). 812For 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

preme Court declining to provide guidance in the course of deciding 

a case on executive privilege. 807

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; 808 the second 

article charged the President with obstruction of justice relating 

both to the civil lawsuit and to the grand jury proceedings. 809 Two

additional articles of impeachment had been approved by the 

House Judiciary Committee but were rejected by the full House. 810

The Senate trial resulted in acquittal on both articles. 811

A number of legal issues surfaced during congressional consideration of the Clinton impeachment. 812 Although the congressional 

618 ART. II—EXECUTIVE DEPARTMENT 

Sec. 4—Impeachment 

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).813Following 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). 814 Note that the Judiciary Committee deleted from the article a charge based 

on President Clinton’s allegedly frivolous assertions of executive privilege in response 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. 815The 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). 

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, 813 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 a similar type of 

charge against President Nixon, and raises the issue of whether 

the different circumstances (e.g., the relative importance of the information sought, and the nature and extent of the responses) may 

account for the different approaches. 814 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. 815 The relationship 

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Sec. 4—Impeachment 

816For analysis of the issue, see Jack Maskell, Censure of the President by Congress, CRS Report for Congress 98-843A (1998). 

817 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). 

818 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 

theperjury 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. 819The 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). 820Some 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)). 821See, 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 

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. 816

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, 817 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. 818

The House’s vote to impeach President Clinton arguably amounted 

to an affirmative answer, 819 but the Senate’s acquittal leaves the 

matter somewhat unsettled. 820 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, 821 but there was no 

620 ART. II—EXECUTIVE DEPARTMENT 

Sec. 4—Impeachment 

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, 1789-179, THE DIARY OF WILLIAM MACLAY AND OTHER

NOTES ON SENATE DEBATES 168 (Kenneth R. Bowling and Helen E. Veit eds. 1988). 822One 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. 823Senator 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). 824 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). 825 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. 

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. 822

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.’’ 823

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 demonstrable 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. 824

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.’’ 825 Specifically, the 

Court rejected a claim that the Senate had departed from the 

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Sec. 4—Impeachment 

826The 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. 

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. 826