Of all the issues confronting the members of the Philadelphia Convention, the nature of the Presidency ranks among the most important and the resolution of the question one of the most significant steps taken.\1\

The immediate source of Article II was the New York Constitution, in which the governor was elective by the people and thus independent of the legislature. Hisis term of office 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, possessed the pardoning power, and was charged to take care that the laws were faithfully executed.\2\

But when the Constitutional Convention assembled, and almost to its closing days, there was no assurance that the executive branch of the national government 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.

NOTES:

\2\Hamilton observed the similarities and differences between the President and the New York Governor in The Federalist, No. 69 (J. Cooke ed. 1961), 462-470. On the text, see New York Constitution of 1777, Articles XVII-XIX, in 5 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. (Washington: 1909), 2632-2633.

Debate in the Convention proceeded against a background of many things, but most certainly uppermost in the delegates' minds was the experience of the states and of the national government under the Articles of Confederation. Reacting to the exercise of powers by the royal governors, the framers of the state constitutions had generally created weak executives and strong legislatures, though not in all instances. The Articles of Confederation vested all national powers in a unicameral legislature, the Confederation 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\

NOTE:

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 (veto) 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\

NOTE:

When the executive portion of the Virginia 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.

NOTES:

\6\Ibid., 65, 66, 68, 69, 70, 71, 73.

\7\Ibid., 93.

Only slightly less important was the decision finally arrived at not to provide for an executive council, which would participate not only in the executive's exercise of the veto power but also in the exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the Convention ultimately rejected the proposal and adopted language vesting in the U.S. Senate the power to "advise and consent'' with regard to these matters.\8\

NOTE:

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.

NOTES:

\10\Ibid., 401.

\11\Ibid., 185.

\12\Ibid., 401.

\13\Ibid., 597.

The most obvious meaning of the language of Article II, Sec. 1, is to confirm that the executive power is vested in a single person, but, almost from the beginning, it has been contended that the words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much larger debate about the nature of the Presidency. With Justice Jackson, we "may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for the 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\

NOTES:

\15\A. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, Va.: 1840), 116.

\16\W. Wilson, Constitutional Government in the United States (New York: 1908), 202, 205.

Alexander Hamilton and James Madison. -- In Hamilton's defense of President Washington's issuance of a neutrality proclamation upon the outbreak of war between France and Great Britain may be found not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II.\17\ Said Hamilton: "The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation 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."

NOTE:

Hamilton continued: "The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, `All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, `The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.''\18\

NOTE:

Madison's reply to Hamilton, in five closely reasoned articles,\19\ was almost exclusively directed to Hamilton's development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison's principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation's neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. "Were it once established that the powers of war and treaty are in their nature executive; that, so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.''\20\ The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III.\21\

NOTES:

\20\Id., 621. In the congressional debates on the President's power to remove executive officeholders, cf. C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6, Madison had urged contentions quite similar to Hamilton's, finding in the first section of Article II and in the obligation to execute the laws a vesting of executive powers sufficient to contain the power solely on his behalf to remove subordinates. 1 Annals of Congress 496-497. Madison's language here was to be heavily relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52, 115-126 (1926), but compare, Corwin, The President's Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467, 1474-1483, 1485-1486.

\21\Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992), with Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. Rev. 1346 (1994), and responses by Calabresi, Rhodes and Froomkin, in id., 1377, 1406, 1420.

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 Company v. Sawyer.\27\

NOTES:

\23\C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6.

\24\Myers v. United States, 272 U.S. 52, 163-164 (1926). Professor Taft had held different views. ``The true view of the executive functions is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary in its exercise. Such specific grant must be either in the federal constitution or in an act of congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. . . .'' W. Taft, Our Chief Magistrate and His Powers (New York: 1916), 139-140.

\25\295 U.S. 602 (1935).

\26\487 U.S. 654, 685-693 (1988).

\27\343 U.S. 579 (1952).

The Curtiss-Wright Case. -- Further Court support of the Hamiltonian view was advanced in United States v. Curtiss-Wright Export Corporation,\28\ in which Justice Sutherland posited the doctrine that the power of the national government in foreign relations is not one of enumerated but of inherent powers;\29\ this doctrine was then combined with Hamilton's contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were at all relevant in foreign affairs. "The broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers--as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as were thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. . . . That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. . . ."

NOTES:

\29\Id., 315-316, 318.

Justice Southerland continued:

"As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. . . .

"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality. . . .

"Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation . . . .''\30\

NOTE:

Scholarly criticism of Justice Sutherland's reasoning has demonstrated that his essential postulate, the passing of sovereignty in external affairs directly from the British Crown to the colonies as a collective unit, is in error.\31\ Dicta in later cases controvert the conclusions drawn in Curtiss-Wright about the foreign relations power being inherent, rather than subject to the limitations of the delegated powers doctrine.\32\ The holding in Kent v. Dulles\33\ that delegation to the Executive of discretion in the issuance of passports must be measured by the usual standards applied in domestic delegations appeared to circumscribe Justice Sutherland's more expansive view, but the subsequent limitation of that decision, though formally reasoned within its analytical framework, coupled with language addressed to the President's authority in foreign affairs, leaves clouded the vitality of that decision.\34\ The case nonetheless remains with Myers v. United States the source and support of those contending for broad inherent executive powers.\35\

NOTES:

\32\E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Stone); Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion, per Justice Black).

\33\357 U.S. 116, 129 (1958).

\34\Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id., 291, 293-294 & n. 24, 307-308. But see Dames & Moore v. Regan, 453 U.S. 654, 659-662 (1981), qualified by id., 678. Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director's dismissal of employee, over dissent relying in part on Curtiss-Wright as interpretive force counseling denial of judicial review), with Department of the Navy v. Egan, 484 U.s. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President's inherent power to protect information without any explicit legislative grant).

\35\That the opinion ``remains authoritative doctrine'' is stated in L. Henkin, Foreign Affairs and the Constitution (1972), 25-26. It is utilized as an interpretive precedent in American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), see, e.g., Sec. Sec. 1, 204, 339. It will be noted, however, that the Restatement is circumspect about the reach of the opinion in controversies between presidential and congressional powers.

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 extensively considered\36\ is Youngstown Sheet & Tube Company v. Sawyer,\37\ and the multiple opinions there produced make difficult an evaluation of the matter. During the Korean War, President Truman seized the steel industry then in the throes of a strike. No statute authorized the seizure, and the Solicitor General defended the action as an exercise of the President's executive powers which were conveyed by the first section of Article II, by the obligation to enforce the laws, and by the vesting of the function of commander-in-chief. Six-to-three the Court rejected this argument and held the seizure void. But the doctrinal problem is complicated by the fact that Congress had expressly rejected seizure proposals in considering labor legislation and had authorized procedures not followed by the President which did not include seizure. Thus, four of the majority Justices\38\ appear to have been decisively influenced by the fact that Congress had denied the power claimed and this in an area in which the Constitution vested the power to decide at least concurrently if not exclusively in Congress. Three and perhaps four Justices\39\ appear to have rejected the Government's argument on the merits while three\40\ accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss-Wright.\41\

NOTES:

\37\343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953). A case similar to Youngstown was AFL-CIO v. Kahn, 618 F.2d 784 (D.C.Cir.) (en banc), cert. den., 443 U.S. 915 (1979), sustaining a presidential order denying government contracts to companies failing to comply with certain voluntary wage and price guidelines on the basis of statutory interpretation of certain congressional delegations.

\38\343 U.S. 593, 597-602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black's opinion as well), 634, 635-640 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).

\39\Id., 582 (Justice Black delivering the opinion of the Court), 629 (Justice Douglas concurring, but note his use of the Fifth Amendment just compensation argument), 634 (Justice Jackson concurring), 655 (Justice Burton concurring).

\40\Ibid., 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).

\41\Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Note that in Dames & Moore v. Regan, 453 U.S. 654, 659-662, 668-669 (1981), the Court turned to Youngstown as embodying ``much relevant analysis'' on an issue of presidential power.

The Practice in the Presidential Office. -- However contested the theory of expansive presidential powers, the practice in fact has been one of expansion of those powers, an expansion that a number of ``weak'' Presidents and the temporary ascendancy of Congress in the wake of the Civil War has not stemmed. Perhaps the point of no return in this area was reached in 1801 when the Jefferson-Madison "strict constructionists'' came to power and, instead of diminishing executive power and federal power in general, acted rather to enlarge both, notably by the latitudinarian construction of implied federal powers to justify the Louisiana Purchase.\42\ After a brief lapse into Cabinet government, the executive in the hands of Andrew Jackson stamped upon the presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, "the oldest political institution of the race, the elective Kingship.''\43\ While the modern theory of presidential power was conceived primarily by Alexander Hamilton, the modern conception of the presidential office was the contribution primarily of Andrew Jackson.\44\

NOTES:

\43\H. Ford, The Rise and Growth of American Politics (New York: 1898), 293.

\44\E. Corwin, The President--Office and Powers 1787-1957 (New York: 4th ed. 1957), ch. 1.

In recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly to permit Congress a greater degree of discretion.\45\ In striking down the congressional veto as circumventing Article I's bicameralism and presentment requirements attending exercise of legislative power, the Court also suggested in INS v. Chadha\46\ that the particular provision in question, involving veto of the Attorney General's decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws.\47\ And in Bowsher v. Synar,\48\ the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated by Chief Justice Burger's opinion of the Court in Chadha, that "the powers delegated to the three Branches are functionally identifiable,'' distinct, and definable.\49\ In a "standing-to-sue'' case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the federal government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the "take care'' clause and to delegate the power to the judiciary.\50\ On the other hand, the Court in the independent counsel case, while acknowledging that the contested statute did restrict to some degree a constitutionally delegated function, law enforcement, upheld the law upon a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President's constitutionally assigned functions.\51\

NOTES:

\46\462 U.S. 919 (1983).

\47\Although Chief Justice Burger's opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General's application of delegated power to a particular individual. ``Disagreement with the Attorney General's decision on Chadha's deportation . . . involves determinations of policy that Congress can implement in only one way. . . . Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.'' Id., 954-55. The Court's uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, inc., 501 U.S. 252 (1991).

\48\478 U.S. 714 (1986).

\49\Ibid., 462 U.S., 951.

\50\Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2144-2146 (1992). Evidently, however, while Justices Kennedy and Souter joined this part of the opinion, id., 2146 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia's doctrinal position, leaving the position, if that be true, supported in full only by a plurality.

\51\Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390-91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.

At issue in Synar were the responsibilities vested in the Comptroller General by the "Gramm-Rudman-Hollings'' Deficit Control Act,\52\ which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller's report. The Court viewed these functions of the Comptroller "as plainly entailing execution of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of 'execution' of the law,'' especially where "exercise [of] judgment'' is called for, and where the President is required to implement the interpretation.\53\ Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. "By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.''\54\

NOTES:

\53\Ibid., 478 U.S., 732-733.

\54\Ibid., 734.

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.

NOTES:

\56\Ibid., 462 U.S., 989.

\57\Ibid., 478 U.S., 736, 750.

\58\Ibid., 462 U.S., 953 n.16.

\59\Ibid.

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\

NOTES:

\61\Ibid., 487 U.S., 693-96. See also Mistretta v. United States, 488 U.S. 361, 380-84, 390-91, 408-11 (1989).

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 Confederation Congress],'' the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the Constitution. Although, as a matter of fact, Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment, by which the terms of President and Vice-President end at noon on the 20th of January.\62\

NOTE:

The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940, the idea that no President should hold office for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term.'' The voters' departure from the tradition in electing President Franklin D. Roosevelt to third and fourth terms led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to embody the tradition in the constitutional document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth state, which was Minnesota.\63\

NOTE:

Article II, Section 1, Clauses 2, 3, and 4. -- Election of the President

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 cetify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

Clause 4. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

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.''\64\ Adoption of the Electoral College plan came late in the Convention, which had previously adopted on four occasions provisions for election of the executive by the Congress and had twice defeated proposals for election by the people directly.\65\ Itself the product of compromise, the electoral college probably did not work as any member of the Convention could have foreseen, because the development of political parties and nomination of presidential candidates through them and designation of electors by the parties soon reduced the concept of the elector as an independent force to the vanishing point in practice if not in theory.\66\ But the college remains despite numerous efforts to adopt another method, a relic perhaps but still a significant one. Clause 3 has, of course, been superseded by the Twelfth Amendment.

NOTES:

\65\1 id., 21, 68-69, 80-81, 175-176, 230, 244; 2 id., 29-32, 57-59, 63-64, 95, 99-106, 108-115, 118-121, 196-197, 401-404, 497, 499- 502, 511-515, 522-529.

\66\See J. Ceaser, Presidential Selection: Theory and Development (Princeton: 1979); N. Pierce, The People's President: The Electoral College in American History and the Direct-Vote Alternative (New York: 1968). The second presidential election, in 1792, saw the first party influence on the electors, with the Federalists and the Jeffersonians organizing to control the selection of the Vice-President. Justice Jackson once noted: ``As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.'' Ray v. Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do actually elect the President and Vice President.

"Appoint''. -- The word ``appoint'' is used in Clause 2 "as conveying the broadest power of determination.''\67\ This power has been used. "Therefore, on reference to contemporaneous and subsequent action under the clause, we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable.''\68\

NOTES:

\68\Ibid., 28-29.

State Discretion in Choosing Electors. -- Although Clause 2 seemingly vests complete discretion in the States, certain older cases had recognized a federal interest in protecting the integrity of the process. Thus, the Court upheld the power of Congress to protect the right of all citizens who are entitled to vote to lend aid and support in any legal manner to the election of any legally qualified person as a presidential elector.\69\ Its power to protect the choice of electors from fraud or corruption was sustained.\70\ "If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.''\71\

NOTES:

\70\Burroughs and Cannon v. United States, 290 U.S. 534 (1934).

\71\Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884) (quoted in Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).

More recently, substantial curbs on state discretion have been instituted by both the Supreme Court and the Congress. In Williams v. Rhodes,\72\ the Supreme Court struck down a complex state system which effectively limited access to the ballot to the electors of the two major parties. In the Court's view, the system violated the equal protection clause of the Fourteenth Amendment because it favored some and disfavored others and burdened both the right of individuals to associate together to advance political beliefs and the right of qualified voters to cast ballots for electors of their choice. For the Court, Justice Black denied that the language of Clause 2 immunized such state practices from judicial scrutiny.\73\ Then, in Oregon v. Mitchell,\74\ the Court upheld the power of Congress to reduce the voting age in presidential elections\75\ and to set a thirty-day durational residency period as a qualification for voting in presidential elections.\76\ Although the Justices were divided on the reasons, the rationale emerging from this case, considered with Williams v. Rhodes,\77\ is that the Fourteenth Amendment limits state discretion in prescribing the manner of selecting electors and that Congress in enforcing the Fourteenth Amendment\78\ may override state practices which violate that Amendment and substitute standards of its own.

NOTES:

\73\``There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. [citing the Fifteenth, Nineteenth, and Twenty-fourth Amendments]. . . . Obviously we must reject the notion that Art. II, Sec. 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.'' Id., 29.

\74\400 U.S. 112 (1970).

\75\The Court divided five-to-four on this issue. Of the majority, four relied on Congress' power under the Fourteenth Amendment, and Justice Black relied on implied and inherent congressional powers to create and maintain a national government. Id., 119-124 (Justice Black announcing opinion of the Court).

\76\The Court divided eight-to-one on this issue. Of the majority, seven relied on Congress' power to enforce the Fourteenth Amendment, and Justice Black on implied and inherent powers.

\77\393 U.S. 23 (1968).

\78\Cf. Fourteenth Amendment, Sec. 5.

Constitutional Status of Electors. -- Dealing with the question of the constitutional status of the electors, the Court said in 1890: ``The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation. Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the State legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress. . . . In accord with the provisions of the Constitution, Congress has determined the times as of which the number of electors shall be ascertained, and the days on which they shall be appointed and shall meet and vote in the States, and on which their votes shall be counted in Congress; has provided for the filling by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them.''\79\ The truth of the matter is that the electors are not "officers'' at all, by the usual tests of office.\80\ They have neither tenure nor salary, and having performed their single function they cease to exist as electors.

NOTES:

\80\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 (1868).

This function is, moreover, "a federal function,''\81\ their capacity to perform which results from no power that was originally resident in the States, but which springs directly from the Constitution of the United States.\82\

NOTES:

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

In the face of the proposition that electors are state officers, the Court has upheld the power of Congress to act to protect the integrity of the process by which they are chosen.\83\ But in Ray v. Blair,\84\ the Court reasserted the conception of electors as state officers with some significant consequences.

NOTES:

\84\343 U.S. 214 (1952).

Electors as Free Agents. -- "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the nation's highest offices.''\85\ Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be men of "superior discernment, virtue, and information,'' who would select the President "according to their own will'' and without reference to the immediate wishes of the people. "That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community.''\86\

NOTES:

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

Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so.\87\ A recent instance occurred when a 1968 Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the State, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.\88\

NOTES:

\88\115 Cong. Rec. 9-11, 145-171, 197-246 (1969).

The power of either Congress\89\ or of the States to enact legislation binding electors to vote for the candidate of the party on the ticket of which they run has been the subject of much argument.\90\ It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially. In Ray v. Blair,\91\ the Court upheld, against a challenge of invalidity under the Twelfth Amendment, a rule of the Democratic Party of Alabama, acting under delegated power of the legislature, which required each candidate for the office of presidential elector to take a pledge to support the nominees of the party's convention for President and Vice President. The state court had determined that the Twelfth Amendment, following language of Clause 3, required that electors be absolutely free to vote for anyone of their choice. Said Justice Reed for the Court:

NOTES:

\90\At least thirteen States do have statutes binding their electors, but none has been tested in the courts.

\91\343 U.S. 214 (1952).

"It is true that the Twelfth Amendment says the electors shall vote by ballot. But it is also true that the Amendment does not prohibit an elector's announcing his choice beforehand, pledging himself. The suggestion that, in the early elections, candidates for electors -- contemporaries of the Founders -- would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept. History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice. Indeed, more than twenty states do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another, they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party's nominees for the electoral college. This long-continued practical interpretation of the constitutional propriety of an implied or oral pledge of his ballot by a candidate for elector as to his vote in the electoral college weighs heavily in considering the constitutionality of a pledge, such as the one here required, in the primary.

"However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, Sec. 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is 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, Sec. 145. Even though the victory of an independent candidate for elector in Alabama cannot be anticipated, the state does offer the opportunity for the development of other strong political organizations where the need is felt for them by a sizable block of voters. Such parties may leave their electors to their own choice.

"We conclude that the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the National Convention. Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge.''\92\ Justice Jackson, with Justice Douglas, dissented: ``It may be admitted that this law does no more than to make a legal obligation of what has been a voluntary general practice. If custom were sufficient authority for amendment of the Constitution by Court decree, the decision in this matter would be warranted. Usage may sometimes impart changed content to constitutional generalities, such as `due process of law,' `equal protection,' or `commerce among the states.' But I do not think powers or discretions granted to federal officials by the Federal Constitution can be forfeited by the Court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.''\93\

NOTES:

\93\Ibid., 232-233.

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.

All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Independence. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is "a natural born citizen'' in the sense of the clause. Such a child is a citizen as a consequence of statute.\94\ Whatever the term 'natural born'' means, it no doubt does not include a person who is 'naturalized.'' Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that "[a]ll persons born or naturalized in the United States'' are citizens.\95\ Significantly, however, Congress, in which a number of framers of the Constitution sat, provided in the Naturalization act of 1790 that "the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens. . . .''\96\ This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the Crown.\97\ There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens.\98\ Whether the Supreme Court would decide the issue should it ever arise in a "case or controversy'' as well as how it might decide it can only be speculated about.

NOTES:

\95\Reliance on the provision of an Amendment adopted subsequent to the constitutional provision being interpreted is not precluded by but is strongly militated against by the language in Freytag v. CIR, 501 U.S. 868, 886-887 (1991), in which the Court declined to be bound by the language of the 25th Amendment in determining the meaning of ``Heads of Departments'' in the appointments clause. See also id., 917 (Justice Scalia concurring). If the Fourteenth Amendment is relevant and the language is exclusive, that is, if it describes the only means by which persons can become citizens, then, anyone born outside the United States would have to be considered naturalized in order to be a citizen, and a child born abroad of American parents is to be considered ``naturalized'' by being statutorily made a citizen at birth. Although dictum in certain cases supports this exclusive interpretation of the Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702- 703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most recent case in its holding and language rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).

\96\Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See Weedin v. Chin Bow, 274 U.S. 657, 661-666 (1927); United States v. Wong Kim Ark, 169 U.S. 649, 672-675 (1898). With minor variations, this language remained law in subsequent reenactments until an 1802 Act, which omitted the italicized words for reasons not discernable. See Act of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring of American-citizen fathers, but omitting the italicized phrase).

\97\25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4 Geo. 2, ch. 21 (1731).

\98\See, e.g., Gordon,Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

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.

When the President is disabled or is removed or has died, to what does the Vice President succeed: to the "powers and duties of the said office,'' or to the office itself? There appears to be a reasonable amount of evidence from the proceedings of the Constitutional Convention from which to conclude that the framers intended the Vice President to remain Vice President and to exercise the powers of the President until, in the words of the final clause, "a President shall be elected.'' Nonetheless, when President Harrison died in 1841, Vice President Tyler, after initial hesitation, took the position that he was automatically President,\99\ a precedent which has been followed subsequently and which is now permanently settled by Section 1 of the Twenty-fifth Amendment. That Amendment as well settles a number of other pressing questions with regard to presidential inability and succession.

NOTE:

Article II, Section 1, Clauses 7 and 8. -- Compensation and Oath of Office

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.

Clause 7 may be advantageously considered in the light of the rulings and learning arising out of parallel provision regarding judicial salaries.\100\

NOTE:

Clause 8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

What is the time relationship between a President's assumption of office and his taking the oath? Apparently, the former comes first, this answer appearing to be the assumption of the language of the clause. The Second Congress assumed that President Washington took office on March 4, 1789,\101\ although he did not take the oath until the following April 30.

NOTE:

That the oath the President is required to take might be considered to add anything to the powers of the President, because of his obligation to "preserve, protect and defend the Constitution,'' might appear to be rather a fanciful idea. But, in President Jackson's message announcing his veto of the act renewing the Bank of the United States, there is language which suggests that the President has the right to refuse to enforce both statutes and judicial decisions on his own independent decision that they were unwarranted by the Constitution.\102\ The idea next turned up in a message by President Lincoln justifying his suspension of the writ of habeas corpus without obtaining congressional authorization.\103\ And counsel to President Johnson during his impeachment trial adverted to the theory but only in passing.\104\ Beyond these isolated instances, it does not appear to be seriously contended that the oath adds anything to the President's powers.

NOTES:

\103\6 J. Richardson, op. cit., n.42, 25.

\104\2 Trial of Andrew Johnson (Washington: 1868), 200, 293, 296.

Article II, Section 2. Powers and Duties of the President

Section 2, Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual 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.

Surprisingly, little discussion of the Commander-in-Chief clause is found in the Constitutional Convention or in the ratifying debates. From the evidence available, it appears that the framers vested the duty in the President because experience in the Continental Congress had disclosed the inexpediency of vesting command in a group and because the lesson of English history was that danger lurked in vesting command in a person separate from the responsible political leaders.\105\ But the principal concern here is the nature of the power granted by the clause.

NOTE:

The Limited View. -- The purely military aspects of the Commander- in-Chiefship were those that were originally stressed. Hamilton said the office "would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy.''\106\ Story wrote in his Commentaries: "The propriety of admitting the President to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the President might, there was no necessity that he should, take the 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.''\107\ In 1850, Chief Justice Taney, for the Court, said: "His duty and his power are purely military. As commander-in- chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."

NOTES:

\107\3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1486.

Justice Taney continued:

". . . But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.''\108\ Even after the Civil War, a powerful minority of the Court described the role of President as Commander-in- Chief simply as ``the command of the forces and the conduct of campaigns.''\109\

NOTES:

\109\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866).

The Prize Cases. -- The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.\110\ In his famous message to Congress of July 4, 1861,\111\ Lincoln advanced the claim that the "war power'' was his for the purpose of suppressing rebellion, and in the Prize Cases\112\ of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.\113\ The argument was advanced that a blockade to be valid must be an incident of a "public war'' validly declared, and that only Congress could, by virtue of its power "to declare war,'' constitutionally impart to a military 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.'"

NOTES:

\111\7 J. Richardson, op. cit., n.42, 3221, 3232.

\112\2 Bl. (67 U.S.) 635 (1863).

\113\7 J. Richardson, op. cit., n.42, 3215, 3216, 3481.

Justice Grier went on to say:

"The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized `a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.

"This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.

". . . Whether the President in fulfilling his duties, as Commander-in-Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.''\114\

NOTE:

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.\115\ And since Lincoln performed various acts, especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the constitutional provinces of Congress, it seems to have been assumed during World 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,\116\ with the exception of his suspension of the habeas corpus privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.\117\ Nor was this the only respect in which war or the approach of war was deemed to operate to enlarge the scope of power claimable by the President as Commander-in-Chief in wartime.\118\

NOTES:

\116\12 Stat. 326 (1861).

\117\J. Randall, Constitutional Problems under Lincoln (Urbana: rev. ed. 1951), 118-139.

\118\E.g., Attorney General Biddle's justification of seizure of a plant during World War II: ``As Chief Executive and as Commander-in- Chief of the Army and Navy, the President possesses an aggregate of powers that are derived from the Constitution and from various statutes enacted by the Congress for the purpose of carrying on the war. . . . In time of war when the existence of the nation is at stake, this aggregate of powers includes authority to take reasonable steps to prevent nation- wide labor disturbances that threaten to interfere seriously with the conduct of the war. The fact that the initial impact of these disturbances is on the production or distribution of essential civilian goods is not a reason for denying the Chief Executive and the Commander- in-Chief of the Army and Navy the power to take steps to protect the nation's war effort.'' 40 Ops. Atty. Gen. 312, 319-320 (1944). Prior to the actual beginning of hostilities, Attorney General Jackson asserted the same justification upon seizure of an aviation plant. E. Corwin, Total War and the Constitution (New York: 1946), 47-48.

In his message of September 7, 1942, to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,\119\ President Franklin Delano Roosevelt formulated his conception of his powers as "Commander in Chief in wartime.''

NOTE:

President Roosevelt's formulation is 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.''\120\

NOTE:

Presidential War Agencies. -- While congressional compliance with the President's demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus, in exercising both the powers which he claimed as Commander-in-Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies.\121\

NOTE:

Constitutional Status of Presidential Agencies. -- The question of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision of the United States Court of Appeals of the District of Columbia in Employers Group v. National War Labor Board,\122\ which was a suit to annul and enjoin a ``directive order'' of the War Labor Board. The Court refused the injunction on the ground that, at the time when the directive was issued, any action of the Board was "informatory,'' "at most advisory.'' In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock- out agreement and . . . to carry out the directives of the tribunal created under that agreement by the Commander in Chief.''\123\ Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, the War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the presidential agencies as in all respects offices.\124\

NOTES:

\123\Ibid., 149.

\124\E. Corwin, op. cit., n.42, 244, 245, 459.

Evacuation of the West Coast Japanese. -- On February 19, 1942, President Roosevelt issued an executive order, "by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy,'' providing, as a safeguard against subversion and sabotage, power for his military commanders to designate areas from which "any person'' could be excluded or removed and to set up facilities for such persons elsewhere.\125\ Pursuant to this order, more than 112,000 residents of the Western states, all of Japanese descent and more than two out of every three of whom were natural-born citizens, were removed from their homes and herded into temporary camps and later into "relocation centers'' in several states.

NOTE:

It was apparently the original intention of the Prrosevelt administration to rest its measures concerning this matter on the general principle of military necessity and the power of the Commander-in-Chief in wartime. But before any action of importance was taken under the order, Congress ratified and adopted it by the Act of March 21, 1942,\126\ by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the Act. The question at issue, said Chief Justice Stone for the Court, "is not one of congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional . . . [power] to impose the curfew restriction here complained of.''\127\ This question was answered in the affirmative, as was the similar question later raised by an exclusion order.\128\

NOTES:

\127\Hirabayashi v. United States, 320 U.S. 81, 91-92 (1943).

\128\Korematsu v. United States, 323 U.S. 214 (1944).

Long afterward, in 1984, a federal court granted a writ of coram nobis and overturned Korematsu's conviction [Korematsu v. United States, 584 F.Supp. 1406 (N.D.Calif. 1984)], and in 1986, a federal court vacated Hirabayashi's conviction for failing to register for evacuation, but let stand the conviction for curfew violations [Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash. 1986)]. Other cases were pending, but Congress then implemented the recommendations of the Commission on Wartime Relocation and Internment of Civilians by acknowledging "the fundamental