[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article II. Executive Department ]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 409]]




        Section 1. The President..................................   413
        Clause 1. Powers and Term of the President................   413
                Nature and Scope of Presidential Power............   413
                        Creation of the Presidency................   413
                        Executive Power: Theory of the 
                            Presidential Office...................   415
                                Hamilton and Madison..............   416
                                The Myers Case....................   418
                                The Curtiss-Wright Case...........   418
                                The Youngstown Case...............   420
                                The Practice in the Presidential 
                                    Office........................   422
                        Executive Power: Separation-of-Powers 
                            Judicial Protection...................   422
                Tenure............................................   425
        Clauses 2, 3 and 4. Election..............................   426
                Electoral College.................................   427
                        ``Appoint''...............................   428
                        State Discretion in Choosing Electors.....   429
                        Constitutional Status of Electors.........   430
                        Electors as Free Agents...................   431
        Clause 5. Qualifications..................................   433
        Clause 6. Presidential Succession.........................   435
        Clause 7. Compensation and Emoluments.....................   435
        Clause 8. Oath of Office..................................   436
        Section 2. Powers and Duties of the President.............   436
        Clause 1. Commander-in-Chiefship; Presidential Advisers; 
            Pardons...............................................   436
                Commander-in-Chief................................   437
                        Development of the Concept................   437
                                The Limited View..................   437
                                The Prize Cases...................   438
                                Impact of the Prize Cases on World 
                                    Wars I and II.................   439
                Presidential Theory of the Commander-in-Chiefship 
                    in World War II--and Beyond...................   440
                                Presidential War Agencies.........   441
                                Constitutional Status of 
                                    Presidential Agencies.........   441
                                Evacuation of the West Coast 
                                    Japanese......................   442
                                Presidential Government of Labor 
                                    Relations.....................   443
                                Sanctions Implementing 
                                    Presidential Directives.......   444
                                The Postwar Period................   445
                The Cold War and After: Presidential Power to Use 
                    Troops Overseas Without Congressional 
                    Authorization.................................   447
                        The Historic Use of Force Abroad..........   448
                        The Theory of Presidential Power..........   450
                        The Power of Congress to Control the 
                            President's Discretion................   451
                The President as Commander of the Armed Forces....   453

[[Page 410]]

                        The Commander-in-Chief a Civilian Officer.   455
                Martial Law and Constitutional Limitations........   456
                        Martial Law in Hawaii.....................   458
                        Articles of War: The Nazi Saboteurs.......   459
                        Articles of War: World War II Crimes......   461
                        Martial Law and Domestic Disorder.........   461
                Presidential Advisers.............................   462
                        The Cabinet...............................   462
                Pardons and Reprieves.............................   463
                        The Legal Nature of a Pardon..............   463
                        Scope of the Power........................   465
                                Offenses Against the United 
                                    States; Contempt of Court.....   465
                                Effects of a Pardon: Ex parte 
                                    Garland.......................   466
                                Limits to the Efficacy of a Pardon   468
                Congress and Amnesty..............................   468
        Clause 2. Treaties and Appointment of Officers............   469
                The Treaty-Making Power...........................   469
                        President and Senate......................   469
                                Negotiation, a Presidential 
                                    Monopoly......................   470
                        Treaties as Law of the Land...............   471
                                Origin of the Conception..........   472
                                Treaties and the States...........   472
                                Treaties and Congress.............   474
                                Congressional Repeal of Treaties..   477
                                Treaties versus Prior Acts of 
                                    Congress......................   478
                                When Is a Treaty Self-Executing...   479
                                Treaties and the Necessary and 
                                    Proper Clause.................   480
                        Constitutional Limitations on the Treaty 
                            Power.................................   482
                Interpretation and Termination of Treaties as 
                    International Compacts........................   487
                                Termination of Treaties by Notice.   487
                                Determination Whether a Treaty Has 
                                    Lapsed........................   491
                                Status of a Treaty a Political 
                                    Question......................   491
                        Indian Treaties...........................   492
                                Present Status of Indian Treaties.   493
                International Agreements Without Senate Approval..   494
                        Executive Agreements by Authorization of 
                            Congress..............................   495
                                Reciprocal Trade Agreements.......   496
                                The Constitutionality of Trade 
                                    Agreements....................   496
                                The Lend-Lease Act................   497
                                International Organizations.......   498
                        Executive Agreements Authorized by 
                            Treaties..............................   498
                                Arbitration Agreements............   498
                                Agreements Under the United 
                                    Nations Charter...............   499
                                Status of Forces Agreements.......   500
                        Executive Agreements on the Sole 
                            Constitutional Authority of the 
                            President.............................   500
                                The Litvinov Agreement............   503
                                The Hull-Lothian Agreement........   503
                                The Post-War Years................   504
                        The Domestic Obligation of Executive 
                            Agreements............................   504
                The Executive Establishment.......................   507

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                        Office....................................   507
                                Ambassadors and Other Public 
                                    Ministers.....................   507
                                Presidential Diplomatic Agents....   509
                        Appointments and Congressional Regulation 
                            of Offices............................   512
                                Congressional Regulation of 
                                    Conduct in Office.............   516
                                The Loyalty Issue.................   517
                                Financial Disclosure and 
                                    Limitations...................   518
                                Legislation Increasing Duties of 
                                    an Officer....................   519
                        Stages of Appointment Process.............   519
                                Nomination........................   519
                                Senate Approval...................   519
                                When Senate Consent Is Complete...   520
                        Commissioning the Officer.................   521
        Clause 3. Vacancies during Recess of Senate...............   521
                        Recess Appointments.......................   521
                                Judicial Appointments.............   522
                                Ad Interim Designations...........   522
                        The Removal Power.........................   522
                                The Myers Case....................   522
                                The Humphrey Case.................   525
                                The Wiener Case...................   526
                                The Watergate Controversy.........   527
                                The Removal Power Rationalized....   528
                                Other Phases of Presidential 
                                    Removal Power.................   531
                        The Presidential Aegis: Demands for Papers   532
                                Private Access to Government 
                                    Information...................   534
                                Prosecutorial and Grand Jury 
                                    Access to Presidential 
                                    Documents.....................   535
                                Congressional Access to Executive 
                                    Branch Information............   538
        Section 3. Legislative, Diplomatic, and Law Enforcement 
         Duties of the President..................................   539
                Legislative Role of the President.................   540
                The Conduct of Foreign Relations..................   540
                        The Right of Reception: Scope of the Power   540
                        The Presidential Monopoly.................   541
                                The Logan Act.....................   541
                                A Formal or a Formative Power.....   542
                                The President's Diplomatic Role...   542
                                Jefferson's Real Position.........   543
                        The Power of Recognition..................   544
                                The Case of Cuba..................   545
                                The Power of Nonrecognition.......   546
                        Congressional Implementation of 
                            Presidential Policies.................   547
                        The Doctrine of Political Questions.......   548
                                Recent Statements of the Doctrine.   550
        The President as Law Enforcer.............................   553
                Powers Derived from This Duty.....................   553
                Impoundment of Appropriated Funds.................   555
                Power and Duty of the President in Relation to 
                    Subordinate Executive Officers................   559
                        Administrative Decentralization Versus 
                            Jacksonian Centralism.................   560
                        Congressional Power Versus Presidential 
                            Duty to the Law.......................   561
                        Myers Versus Morrison.....................   562
                Power of the President to Guide Enforcement of the 
                    Penal Laws....................................   563

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                The President as Law Interpreter..................   564
                Military Power In Law Enforcement: The Posse 
                    Comitatus.....................................   565
                Suspension of Habeas Corpus by the President......   566
                Preventive Martial Law............................   566
                        The Debs Case.............................   567
                        Present Status of the Debs Case...........   568
                The President's Duty in Cases of Domestic Violence 
                    in the States.................................   569
                The President as Executor of the Law of Nations...   569
                Protection of American Rights of Person and 
                    Property Abroad...............................   570
                        Congress and the President versus Foreign 
                            Expropriation.........................   571
                Presidential Action in the Domain of Congress--
                    Steel Seizure Case............................   572
                        The Doctrine of the Opinion of the Court..   573
                        The Doctrine Considered...................   573
                        Power Denied by Congress..................   576
                Presidential Immunity from Judicial Direction.....   578
                        The President's Subordinates..............   582
        Section 4. Impeachment....................................   583
                Impeachment.......................................   583
                        Persons Subject to Impeachment............   584
                        Judges....................................   584
                        Impeachable Offenses......................   586
                                The Chase Impeachment.............   587
                                The Johnson Impeachment...........   588
                                Later Judicial Impeachments.......   589
                                The Nixon Impeachment.............   589
                        Judicial Review of Impeachments...........   590

[[Page 413]]


                               ARTICLE II

                          EXECUTIVE DEPARTMENT

  Section 1. The executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of 
four Years and, together with the Vice President, chosen for the same 
Term, be elected, as follows:


      Creation of the Presidency

        Of all the issues confronting the members of the Philadelphia 
Convention, the nature of the presidency ranks among the most important 
and the resolution of the question one of the most significant steps 
taken.\1\ The immediate source of Article II was the New York 
constitution in which the governor was elective by the people and thus 
independent of the legislature, his term was three years and he was 
indefinitely re-eligible, his decisions except with regard to 
appointments and vetoes were unencumbered with a council, he was in 
charge of the militia, he possessed the pardoning power, and he was 
charged to take care that the laws were faithfully executed.\2\ But when 
the Convention assembled and almost to its closing days, there was no 
assurance that the executive department would not be headed by plural 
administrators, would not be unalterably tied to the legislature, and 
would not be devoid of many of the powers normally associated with an 

        \1\The background and the action of the Convention is 
comprehensively examined in C. Thach, The Creation of the Presidency 
1775-1789 (Baltimore: 1923). A review of the Constitution's provisions 
being put into operation is J. Hart, The American Presidency in Action 
1789 (New York: 1948).
        \2\Hamilton observed the similarities and differences between 
the President and the New York Governor in The Federalist, No. 69 (J. 
Cooke ed. 1961), 462-470. On the text, see New York Constitution of 
1777, Articles XVII-XIX, in 5 F. Thorpe, The Federal and State 
Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. (Washington: 
1909), 2632-2633.

        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

[[Page 414]]
vested all powers in a unicameral congress. Experience had demonstrated 
that harm was to be feared as much from an unfettered legislature as 
from an uncurbed executive and that many advantages of a reasonably 
strong executive could not be conferred on the legislative body.\3\

        \3\C. Thach, The Creation of the Presidency 1775-1789 
(Baltimore: 1923), chs. 1-3.

        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 

        \4\The plans offered and the debate is reviewed in C. Thach, The 
Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 4. The text 
of the Virginia Plan may be found in 1 M. Farrand, The Records of the 
Federal Convention of 1787 (New Haven: rev. ed. 1937), 21.

        When the executive portion of the Plan was taken up on June 1, 
James Wilson immediately moved that the executive should consist of a 
single person.\5\ In the course of his remarks, Wilson demonstrated his 
belief in a strong executive, advocating election by the people, which 
would free the executive of dependence on the national legislature and 
on the States, proposing indefinite re-eligibility, and preferring an 
absolute negative though in concurrence with a council of revision.\6\ 
The vote on Wilson's motion was put over until the questions of method 
of selection, term, mode of removal, and powers to be conferred had been 
considered; subsequently, the motion carried,\7\ and the possibility of 
the development of a strong President was made real.

        \5\Id., 65.
        \6\Id., 65, 66, 68, 69, 70, 71, 73.
        \7\Id., 93.

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

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in the Senate the power to ``advise and consent'' with regard to these 

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

        Finally, the designation of the executive as the ``President of 
the United States'' was made in a tentative draft reported by the 
Committee on Detail\9\ and accepted by the Convention without 
discussion.\10\ The same clause had provided that the President's title 
was to be ``His Excellency,''\11\ and, while this language was also 
accepted without discussion,\12\ it was subsequently omitted by the 
Committee on Style and Arrangement\13\ with no statement of the reason 
and no comment in the Convention.

        \9\Id., 185.
        \10\Id., 401.
        \11\Id., 185.
        \12\Id., 401.
        \13\Id., 597.
      Executive Power: Theory of the Presidential Office

        The most obvious meaning of the language of Article II, Sec. 1, 
is to confirm that the executive power is vested in a single person, but 
almost from the beginning it has been contended that the words mean much 
more than this simple designation of locus. Indeed, contention with 
regard to this language reflects the much larger debate about the nature 
of the Presidency. With Justice Jackson, we ``may be surprised at the 
poverty of really useful and unambiguous authority applicable to 
concrete problems of executive power as they actually present 
themselves. Just what our forefathers did envision, or would have 
envisioned had they foreseen modern conditions, must be divined from 
materials almost as enigmatic as the dreams Joseph was called upon to 
interpret for Pharaoh. A century and a half of partisan debate and 
scholarly speculation yields no net result but only supplies more or 
less apt quotations from respected sources on each side of any question. 
They largely cancel each other.''\14\ At the least, it is no doubt true 
that the ``loose and general expressions'' by which the powers and 
duties of the executive branch are denominated\15\ place the President 
in a position in which he, as Professor Woodrow Wilson noted, ``has the 
right, in law and conscience, to be as big a man as he can'' and in 
which ``only his capacity will set the limit.''\16\

        \14\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635 
(1952) (concurring opinion).
        \15\A. Upshur, A Brief Enquiry into the True Nature and 
Character of Our Federal Government (Petersburg, Va.: 1840), 116.
        \16\W. Wilson, Constitutional Government in the United States 
(New York: 1908), 202, 205.


[[Page 416]]

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

        \17\32 Writings of George Washington, J. Fitzpatrick ed. 
(Washington: 1939), 430. See C. Thomas, American Neutrality in 1793: A 
Study in Cabinet Government (New York: 1931).

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

[[Page 417]]
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 

        \18\7 Works of Alexander Hamilton, J. C. Hamilton ed. (New York: 
1851), 76, 80-81 (emphasis in original).

        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 

[[Page 418]]
contentiousness still settles upon the reading of the vesting clauses of 
Articles I, II, and III.\21\

        \19\1 Letters and Other Writings of James Madison (Philadelphia: 
1865), 611-654.
        \20\Id., 621. In the congressional debates on the President's 
power to remove executive officeholders, cf. C. Thach, The Creation of 
the Presidency 1775-1789 (Baltimore: 1923), ch. 6, Madison had urged 
contentions quite similar to Hamilton's, finding in the first section of 
Article II and in the obligation to execute the laws a vesting of 
executive powers sufficient to contain the power solely on his behalf to 
remove subordinates. 1 Annals of Congress 496-497. Madison's language 
here was to be heavily relied on by Chief Justice Taft on this point in 
Myers v. United States, 272 U.S. 52, 115-126 (1926), but compare, 
Corwin, The President's Removal Power Under the Constitution, in 4 
Selected Essays on Constitutional Law (Chicago: 1938), 1467, 1474-1483, 
        \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 Co. v. Sawyer.\27\

        \22\272 U.S. 52 (1926). See Corwin, The President's Removal 
Power Under the Constitution, in 4 Selected Essays on Constitutional Law 
(Chicago: 1938), 1467.
        \23\C. Thach, The Creation of the Presidency 1775-1789 
(Baltimore: 1923), ch. 6.
        \24\Myers v. United States, 272 U.S. 52, 163-164 (1926). 
Professor Taft had held different views. ``The true view of the 
executive functions is, as I conceive it, that the president can 
exercise no power which cannot be fairly and reasonably traced to some 
specific grant of power or justly implied and included within such 
express grant as proper and necessary in its exercise. Such specific 
grant must be either in the federal constitution or in an act of 
congress passed in pursuance thereof. There is no undefined residuum of 
power which he can exercise because it seems to him to be in the public 
interest. . . .'' W. Taft, Our Chief Magistrate and His Powers (New 
York: 1916), 139-140.
        \25\295 U.S. 602 (1935).
        \26\487 U.S. 654, 685-693 (1988).
        \27\343 U.S. 579 (1952).

        The Curtiss-Wright Case.--Further Court support of the 
Hamiltonian view was advanced in United States v. Curtiss-Wright Export 
Corp.,\28\ in which Justice Sutherland posited the doctrine that the 
power of the National Government in foreign relations is not one of 
enumerated but of inherent powers;\29\ this doctrine was

[[Page 419]]
then combined with Hamilton's contention that control of foreign 
relations is exclusively an executive function with obvious implications 
for the power of the President. The case arose as a challenge to the 
delegation of power from Congress to the President with regard to a 
foreign relations matter. Justice Sutherland denied that the limitations 
on delegation in the domestic field were at all relevant in foreign 
affairs. ``The broad statement that the federal government can exercise 
no powers except those specifically enumerated in the constitution, and 
such implied powers--as are necessary and proper to carry into effect 
the enumerated powers, is categorically true only in respect of our 
internal affairs. In that field the primary purpose of the Constitution 
was to carve from the general mass of legislative powers then possessed 
by the states such portions as were thought desirable to vest in the 
federal government, leaving those not included in the enumeration still 
in the states. . . . That this doctrine applies only to powers which the 
states had, is self evident. And since the states severally never 
possessed international powers, such powers could not have been carved 
from the mass of state powers but obviously were transmitted to the 
United States from some other source. . . .

        \28\299 U.S. 304 (1936).
        \29\Id., 315-316, 318.

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

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

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


        Scholarly criticism of Justice Sutherland's reasoning has 
demonstrated that his essential postulate, the passing of sovereignty in 
external affairs directly from the British Crown to the colonies as

[[Page 420]]
a collective unit, is in error.\31\ Dicta in later cases controvert the 
conclusions drawn in Curtiss-Wright about the foreign relations power 
being inherent rather than subject to the limitations of the delegated 
powers doctrine.\32\ The holding in Kent v. Dulles\33\ that delegation 
to the Executive of discretion in the issuance of passports must be 
measured by the usual standards applied in domestic delegations appeared 
to circumscribe, Justice Sutherland's more expansive view, but the 
subsequent limitation of that decision, though formally reasoned within 
its analytical framework, coupled with language addressed to the 
President's authority in foreign affairs, leaves clouded the vitality of 
that decision.\34\ The case nonetheless remains with Myers v. United 
States the source and support of those contending for broad inherent 
executive powers.\35\

        \31\Levitan, The Foreign Relations Power: An Analysis of Mr. 
Justice Sutherland's Theory, 55 Yale L. J. 467 (1946); Patterson, In re 
United States v. Curtiss-Wright Corp., 22 Texas L. Rev. 286, 445 (1944); 
Lofgren, United States v. Curtiss-Wright Corporation: An Historical 
Reassessment, 83 Yale L. J. 1 (1973), reprinted in C. Lofgren, 
``Government from Reflection and Choice''--Constitutional Essays on War, 
Foreign Relations, and Federalism (1986), 167.
        \32\E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice 
Stone); Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion, per 
Justice Black).
        \33\357 U.S. 116, 129 (1958).
        \34\Haig v. Agee, 453 U.S. 280 (1981). For the reliance on 
Curtiss-Wright, see id., 291, 293-294 & n. 24, 307-308. But see Dames & 
Moore v. Regan, 453 U.S. 654, 659-662 (1981), qualified by id., 678. 
Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National 
Security Act as not precluding judicial review of constitutional 
challenges to CIA Director's dismissal of employee, over dissent relying 
in part on Curtiss-Wright as interpretive force counseling denial of 
judicial review), with Department of the Navy v. Egan, 484 U.s. 518 
(1988) (denying Merit Systems Protection Board authority to review the 
substance of an underlying security-clearance determination in reviewing 
an adverse action and noticing favorably President's inherent power to 
protect information without any explicit legislative grant).
        \35\That the opinion ``remains authoritative doctrine'' is 
stated in L. Henkin, Foreign Affairs and the Constitution (1972), 25-26. 
It is utilized as an interpretive precedent in American Law Institute, 
Restatement (Third) of the Law, The Foreign Relations Law of the United 
States (1987), see, e.g., Sec. Sec. 1, 204, 339. It will be noted, 
however, that the Restatement is circumspect about the reach of the 
opinion in controversies between presidential and congressional powers.

        The Youngstown Case.--The only recent case in which the 
``inherent'' powers of the President or the issue of what executive 
powers are vested by the first section of Article II has been exten

[[Page 421]]
sively considered\36\ is Youngstown Sheet & Tube Co. v. Sawyer,\37\ and 
the multiple opinions there produced make difficult an evaluation of the 
matter. During the Korean War, President Truman seized the steel 
industry then in the throes of a strike. No statute authorized the 
seizure, and the Solicitor General defended the action as an exercise of 
the President's executive powers which were conveyed by the first 
section of Article II, by the obligation to enforce the laws, and by the 
vesting of the function of commander-in-chief. Six-to-three the Court 
rejected this argument and held the seizure void. But the doctrinal 
problem is complicated by the fact that Congress had expressly rejected 
seizure proposals in considering labor legislation and had authorized 
procedures not followed by the President which did not include seizure. 
Thus, four of the majority Justices\38\ appear to have been decisively 
influenced by the fact that Congress had denied the power claimed and 
this in an area in which the Constitution vested the power to decide at 
least concurrently if not exclusively in Congress. Three and perhaps 
four Justices\39\ appear to have rejected the Government's argument on 
the merits while three\40\ accepted it in large measure. Despite the 
inconclusiveness of the opinions, it seems clear that the result was

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a substantial retreat from the proclamation of vast presidential powers 
made in Myers and Curtiss-Wright.\41\

        \36\The issue is implicit in several of the opinions of the 
Justices in New York Times Co. v. United States, 403 U.S. 713 (1971). 
See id., 727, 728-730 (Justice Stewart concurring), 752, 756-759 
(Justice Harlan dissenting). Assertions of inherent power to sustain 
presidential action were made in Dames & Moore v. Regan, 453 U.S. 654 
(1981), but the Court studiously avoided these arguments in favor of a 
somewhat facile statutory analysis. Separation-of-powers analysis 
informed the Court's decisions in United States v. Nixon, 418 U.S. 683 
(1974), Nixon v. Administrator of General Services, 433 U.S. 425 (1977), 
Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Harlow v. Fitzgerald, 457 
U.S. 800 (1982). While perhaps somewhat latitudinarian in some respect 
of the President's powers, the analysis looks away from inherent powers. 
But see Haig v. Agee, 453 U.S. 280 (1981), in which the statutory and 
congressional ratification analyses is informed with a view of a range 
of presidential foreign affairs discretion combined with judicial 
deference according the President de facto much of the theoretically-
based authority spelled out in Curtiss-Wright.
        \37\343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A 
Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953). A case 
similar to Youngstown was AFL-CIO v. Kahn, 618 F.2d 784 (D.C.Cir.) (en 
banc), cert. den., 443 U.S. 915 (1979), sustaining a presidential order 
denying government contracts to companies failing to comply with certain 
voluntary wage and price guidelines on the basis of statutory 
interpretation of certain congressional delegations.
        \38\343 U.S. 593, 597-602 (Justice Frankfurter concurring, 
though he also noted he expressly joined Justice Black's opinion as 
well), 634, 635-640 (Justice Jackson concurring), 655, 657 (Justice 
Burton concurring), 660 (Justice Clark concurring).
        \39\Id., 582 (Justice Black delivering the opinion of the 
Court), 629 (Justice Douglas concurring, but note his use of the Fifth 
Amendment just compensation argument), 634 (Justice Jackson concurring), 
655 (Justice Burton concurring).
        \40\Id., 667 (Chief Justice Vinson and Justices Reed and Minton 
        \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\

        \42\For the debates on the constitutionality of the Purchase, 
see E. Brown, The Constitutional History of the Louisiana Purchase, 
1803-1812 (Berkeley: 1920). The differences and similarities between the 
Jeffersonians and the Federalists can be seen by comparing L. White, The 
Jeffersonians--A Study in Administrative History 1801-1829 (New York: 
1951), with L. White, The Federalists--A Study in Administrative HISTORY 
(New York: 1948). That the responsibilities of office did not turn the 
Jeffersonians into Hamiltonians may be gleaned from Madison's veto of an 
internal improvements bill. 2 J. Richardson (comp.), Messages and Papers 
of the Presidents (Washington: 1897), 569.
        \43\H. Ford, The Rise and Growth of American Politics (New York: 
1898), 293.
        \44\E. Corwin, The President--Office and Powers 1787-1957 (New 
York: 4th ed. 1957), ch. 1.
      Executive Power: Separation-of-Powers Judicial Protection

        In recent cases, the Supreme Court has pronouncedly protected 
the Executive Branch, applying separation-of-powers principles to 
invalidate what it perceived to be congressional usurpation of executive 
power, but its mode of analysis has lately shifted seemingly to permit 
Congress a greater degree of discretion.\45\ In striking

[[Page 423]]
down the congressional veto as circumventing Article I's bicameralism 
and presentment requirements attending exercise of legislative power, 
the Court also suggested in INS v. Chadha\46\ that the particular 
provision in question, involving veto of the Attorney General's decision 
to suspend deportation of an alien, in effect allowed Congress 
impermissible participation in execution of the laws.\47\ And in Bowsher 
v. Synar,\48\ the Court held that Congress had invalidly vested 
executive functions in a legislative branch official. Underlying both 
decisions was the premise, stated by Chief Justice Burger's opinion of 
the Court in Chadha, that ``the powers delegated to the three Branches 
are functionally identifiable,'' distinct, and definable.\49\ In a 
``standing-to-sue'' case, Justice Scalia for the Court denied that 
Congress could by statute confer standing on citizens not suffering 
particularized injuries to sue the Federal Government to compel it to 
carry out a duty imposed by Congress, arguing that to permit this course 
would be to allow Congress to divest the President of his obligation 
under the ``take care'' clause and to delegate the power to the 
judiciary.\50\ On the other hand, the Court in the independent counsel 
case, while acknowledging that the contested statute did restrict to 
some degree a constitutionally delegated function, law enforcement, 
upheld the law upon a flexible analysis that emphasized that neither the 
legislative nor the judicial branch had aggrandized its power and that 
the incursion into executive power did not impermissibly interfere with 
the President's constitutionally assigned functions.\51\

        \45\Not that there have not been a few cases prior to the 
present period. See Myers v. United States, 272 U.S. 52 (1926). But a 
hallmark of previous disputes between President and Congress has been 
the use of political combat to resolve them, rather than a resort to the 
courts. The beginning of the present period was Buckley v. Valeo, 424 
U.S. 1, 109-143 (1976).
        \46\462 U.S. 919 (1983).
        \47\Although Chief Justice Burger's opinion of the Court 
described the veto decision as legislative in character, it also 
seemingly alluded to the executive nature of the decision to countermand 
the Attorney General's application of delegated power to a particular 
individual. ``Disagreement with the Attorney General's decision on 
Chadha's deportation . . . involves determinations of policy that 
Congress can implement in only one way. . . . Congress must abide by its 
delegation of authority until that delegation is legislatively altered 
or revoked.'' Id., 954-55. The Court's uncertainty is explicitly spelled 
out in Metropolitan Washington Airports Auth. v. Citizens for the 
Abatement of Aircraft Noise, inc., 501 U.S. 252 (1991).
        \48\478 U.S. 714 (1986).
        \49\Id., 462 U.S., 951.
        \50\Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2144-2146 
(1992). Evidently, however, while Justices Kennedy and Souter joined 
this part of the opinion, id., 2146 (concurring in part and concurring 
in the judgment), they do not fully subscribe to the apparent full reach 
of Justice Scalia's doctrinal position, leaving the position, if that be 
true, supported in full only by a plurality.
        \51\Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief 
Justice Rehnquist was joined by seven of the eight participating 
Justices. Only Justice Scalia dissented. In Mistretta v. United States, 
488 U.S. 361, 390-91 (1989), the Court, approving the placement of the 
Sentencing Commission in the judicial branch, denied that executive 
powers were diminished because of the historic judicial responsibility 
to determine what sentence to impose on a convicted offender. Earlier, 
in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the 
Court, in upholding the power of federal judges to appoint private 
counsel to prosecute contempt of court actions, rejected the assertion 
that the judiciary usurped executive power in appointing such counsel.


[[Page 424]]

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

        \52\The Balanced Budget and Emergency Deficit Control Act of 
1985, Pub. L. 99-177, 99 Stat. 1038.
        \53\Id., 478 U.S., 732-733.
        \54\Id., 734.

        The Court in Chadha and Synar ignored or rejected assertions 
that its formalistic approach to separation of powers may bring into 
question the validity of delegations of legislative authority to the 
modern administrative state, sometimes called the ``fourth branch.'' As 
Justice White asserted in dissent in Chadha, ``by virtue of 
congressional delegation, legislative power can be exercised by 
independent agencies and Executive departments. . . . There is no 
question but that agency rulemaking is lawmaking in any functional or 
realistic sense of the term.''\55\ Moreover, Justice White noted, 
``rules and adjudications by the agencies meet the Court's own 
definition of legislative action.''\56\ Justice Stevens, concurring in 
Synar, sounded the same chord in suggesting that the Court's holding 
should not depend on classification of ``chameleon-like'' powers as 
executive, legislative, or judicial.\57\ The Court answered these 
assertions on two levels: that the bicameral protection ``is not

[[Page 425]]
necessary'' when legislative power has been delegated to another branch 
confined to implementing statutory standards set by Congress, and that 
``the Constitution does not so require.''\58\ In the same context, the 
Court acknowledged without disapproval that it had described some agency 
action as resembling lawmaking.\59\ Thus Chadha may not be read as 
requiring that all ``legislative power'' as the Court defined it must be 
exercised by Congress, and Synar may not be read as requiring that all 
``executive power'' as the Court defined it must be exercised by the 
executive. A more limited reading is that when Congress elects to 
exercise legislative power itself rather than delegate it, it must 
follow the prescribed bicameralism and presentment procedures, and when 
Congress elects to delegate legislative power or assign executive 
functions to the executive branch, it may not control exercise of those 
functions by itself exercising removal (or appointment) powers.

        \55\Id., 462 U.S., 985-86.
        \56\Id., 462 U.S., 989.
        \57\Id., 478 U.S., 736, 750.
        \58\Id., 462 U.S., 953 n.16.

        A more flexible approach was followed in the independent counsel 
case. Here, there was no doubt that the statute limited the President's 
law enforcement powers. Upon a determination by the Attorney General 
that reasonable grounds exist for investigation or prosecution of 
certain high ranking government officials, he must notify a special, 
Article III court which appoints a special counsel. The counsel is 
assured full power and independent authority to investigate and, if 
warranted, to prosecute. Such counsel may be removed from office by the 
Attorney General only for cause as prescribed in the statute.\60\ The 
independent counsel was assuredly more free from executive supervision 
than other federal prosecutors. Instead of striking down the law, 
however, the Court undertook a careful assessment of the degree to which 
executive power was invaded and the degree to which the President 
retained sufficient powers to carry out his constitutionally assigned 
duties. Also considered by the Court was the issue whether in enacting 
the statute Congress had attempted to aggrandize itself or had attempted 
to enlarge the judicial power at the expense of the executive.\61\

        \60\Pub. L. 95-52l, title VI, 92 Stat. l867, as amended by Pub. 
L. 97-409, 96 Stat. 2039, and Pub. L. l00-l9l, l0l Stat. l293, 28 U.S.C. 
Sec. Sec. 49, 59l et seq.
        \61\Id., 487 U.S., 693-96. See also Mistretta v. United States, 
488 U.S. 361, 380-84, 390-91, 408-11 (1989).


        Formerly the term of four years during which the President 
``shall hold office'' was reckoned from March 4 of the alternate odd 
years beginning with 1789. This came about from the circumstance

[[Page 426]]
that under the act of September 13, 1788, of ``the Old Congress,'' the 
first Wednesday in March, which was March 4, 1789, was fixed as the time 
for commencing proceedings under the Constitution. Although as a matter 
of fact, Washington was not inaugurated until April 30 of that year, by 
an act approved March 1, 1792, it was provided that the presidential 
term should be reckoned from the fourth day of March next succeeding the 
date of election. And so things stood until the adoption of the 
Twentieth Amendment by which the terms of President and Vice-President 
end at noon on the 20th of January.\62\

        \62\As to the meaning of ``the fourth day of March,'' see 
Warren, Political Practice and the Constitution, 89 U. Pa. L. Rev. 1003 

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

        \63\E. Corwin, op. cit., n.44, 34-38, 331-339.
                                                      Cls. 2-4--Election

  Clause 2. Each State shall appoint, in such Manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole Number of 
Senators and Representatives to which the State may be entitled in the 
Congress; but no Senator or Representative, or Person holding an Office 
of Trust or Profit under the United States, shall be appointed an 
  Clause 3. The Electors shall meet in their respective States and vote 
by Ballot for two Persons, of whom one at least shall not be an 
Inhabitant of the same State with themselves. And they shall make a List 
of all the Persons voted for, and of the Number of Votes for each; which 
List they shall sign and cer

[[Page 427]]
tify, and transmit sealed to the Seat of Government of the United 
States, directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of 
Representatives, open all the Certificates, and the Votes shall then be 
counted. The Person having the greatest Number of Votes shall be the 
President, if such Number be a majority of the whole Number of Electors 
appointed: and if there be more than one who have such Majority, and 
have an equal Number of Votes, then the House of Representatives shall 
immediately chuse by Ballot one of them for President; and if no Person 
have a Majority, then from the five highest on the List the said House 
shall in like manner chuse the President. But in chusing the President, 
the Votes shall be taken by States, the Representation from each State 
having one Vote; A quorum for this purpose shall consist of a Member or 
Members from two thirds of the States, and a Majority of all the States 
shall be necessary to a Choice. In every Case, after the Choice of the 
President, the Person having the greatest Number of Votes of the 
Electors shall be the Vice President. But if there should remain two or 
more who have equal Votes, the Senate shall chuse from them by Ballot 
the Vice President.
  Clause 4. The Congress may determine the Time of chusing the Electors, 
and the Day on which they shall give their Votes; which Day shall be the 
same throughout the United States.

                            ELECTORAL COLLEGE

        The electoral college was one of the compromises by which the 
delegates were able to agree on the document finally produced. ``This 
subject,'' said James Wilson, referring to the issue of the manner in 
which the President was to be selected, ``has greatly divided the House, 
and will also divide people out of doors. It is in

[[Page 428]]
truth the most difficult of all on which we have had to decide.''\64\ 
Adoption of the electoral college plan came late in the Convention, 
which had previously adopted on four occasions provisions for election 
of the executive by the Congress and had twice defeated proposals for 
election by the people directly.\65\ Itself the product of compromise, 
the electoral college probably did not work as any member of the 
Convention could have foreseen, because the development of political 
parties and nomination of presidential candidates through them and 
designation of electors by the parties soon reduced the concept of the 
elector as an independent force to the vanishing point in practice if 
not in theory.\66\ But the college remains despite numerous efforts to 
adopt another method, a relic perhaps but still a significant one. 
Clause 3 has, of course, been superseded by the Twelfth Amendment.

        \64\2 M. Farrand, op. cit., n.4, 501.
        \65\1 id., 21, 68-69, 80-81, 175-176, 230, 244; 2 id., 29-32, 
57-59, 63-64, 95, 99-106, 108-115, 118-121, 196-197, 401-404, 497, 499-
502, 511-515, 522-529.
        \66\See J. Ceaser, Presidential Selection: Theory and 
Development (Princeton: 1979); N. Pierce, The People's President: The 
Electoral College in American History and the Direct-Vote Alternative 
(New York: 1968). The second presidential election, in 1792, saw the 
first party influence on the electors, with the Federalists and the 
Jeffersonians organizing to control the selection of the Vice-President. 
Justice Jackson once noted: ``As an institution the Electoral College 
suffered atrophy almost indistinguishable from rigor mortis.'' Ray v. 
Blair, 343 U.S. 214, 232 (1952). But, of course, the electors still do 
actually elect the President and Vice President.

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

[[Page 429]]
division of their strength, and that a uniform rule was 

        \67\McPherson v. Blacker, 146 U.S. 1, 27 (1892).
        \68\Id., 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\

        \69\Ex parte Yarbrough, 110 U.S. 651 (1884).
        \70\Burroughs and Cannon v. United States, 290 U.S. 534 (1934).
        \71\Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884) (quoted in 
Burroughs and Cannon v. United States, 290 U.S. 534, 546 (1934)).

        More recently, substantial curbs on state discretion have been 
instituted by both the Court and the Congress. In Williams v. 
Rhodes,\72\ the Court struck down a complex state system which 
effectively limited access to the ballot to the electors of the two 
major parties. In the Court's view, the system violated the equal 
protection clause of the Fourteenth Amendment because it favored some 
and disfavored others and burdened both the right of individuals to 
associate together to advance political beliefs and the right of 
qualified voters to cast ballots for electors of their choice. For the 
Court, Justice Black denied that the language of Clause 2 immunized such 
state practices from judicial scrutiny.\73\ Then, in Oregon v. 
Mitchell,\74\ the Court upheld the power of Congress to reduce the

[[Page 430]]
voting age in presidential elections\75\ and to set a thirty-day 
durational residency period as a qualification for voting in 
presidential elections.\76\ Although the Justices were divided on the 
reasons, the rationale emerging from this case, considered with Williams 
v. Rhodes,\77\ is that the Fourteenth Amendment limits state discretion 
in prescribing the manner of selecting electors and that Congress in 
enforcing the Fourteenth Amendment\78\ may override state practices 
which violate that Amendment and substitute standards of its own.

        \72\393 U.S. 23 (1968).
        \73\``There, of course, can be no question but that this section 
does grant extensive power to the States to pass laws regulating the 
selection of electors. But the Constitution is filled with provisions 
that grant Congress or the States specific power to legislate in certain 
areas; these granted powers are always subject to the limitation that 
they may not be exercised in a way that violates other specific 
provisions of the Constitution. . . . [It cannot be] thought that the 
power to select electors could be exercised in such a way as to violate 
express constitutional commands that specifically bar States from 
passing certain kinds of laws. [citing the Fifteenth, Nineteenth, and 
Twenty-fourth Amendments]. . . . Obviously we must reject the notion 
that Art. II, Sec. 1, gives the States power to impose burdens on the 
right to vote, where such burdens are expressly prohibited in other 
constitutional provisions.'' Id., 29.
        \74\400 U.S. 112 (1970).
        \75\The Court divided five-to-four on this issue. Of the 
majority, four relied on Congress' power under the Fourteenth Amendment, 
and Justice Black relied on implied and inherent congressional powers to 
create and maintain a national government. Id., 119-124 (Justice Black 
announcing opinion of the Court).
        \76\The Court divided eight-to-one on this issue. Of the 
majority, seven relied on Congress' power to enforce the Fourteenth 
Amendment, and Justice Black on implied and inherent powers.
        \77\393 U.S. 23 (1968).
        \78\Cf. Fourteenth Amendment, Sec. 5.

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

        \79\In re Green, 134 U.S. 377, 379-380 (1890).
        \80\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 

        This function is, moreover, ``a federal function,''\81\ their 
capacity to perform which results from no power which was originally

[[Page 431]]
resident in the States but which springs directly from the Constitution 
of the United States.\82\

        \81\Hawke v. Smith, 253 U.S. 221 (1920).
        \82\Burroughs and Cannon v. United States, 290 U.S. 534, 535 

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

        \83\Ex parte Yarbrough, 110 U.S. 651 (1884); Burroughs and 
Cannon v. United States, 290 U.S. 534 (1934).
        \84\343 U.S. 214 (1952).

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

        \85\Id., 232 (Justice Jackson dissenting). See The Federalist, 
No. 68 (J. Cooke ed. 1961), 458 (Hamilton); 3 J. Story, Commentaries on 
the Constitution of the United States (Boston: 1833), 1457.
        \86\S. Rept. No. 22, 19th Congress, 1st sess. (1826), 4.

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

        \87\All but the most recent instances are summarized in N. 
Peirce, op. cit., n. 66, 122-124.
        \88\115 Cong. Rec. 9-11, 145-171, 197-246 (1969).

[[Page 432]]

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

        \89\Congress has so provided in the case of electors of the 
District of Columbia, 75 Stat. 818 (1961), D.C. Code Sec. 1-1108(g), but 
the reference in the text is to the power of Congress to bind the 
electors of the States.
        \90\At least thirteen States do have statutes binding their 
electors, but none has been tested in the courts.
        \91\343 U.S. 214 (1952).

        ``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 

        ``However, even if such promises of candidates for the electoral 
college are legally unenforceable because violative of an assumed 
constitutional freedom of the elector under the Constitution, Art. II, 
Sec. 1, to vote as he may choose in the electoral college, it would not 
follow that the requirement of a pledge in the primary is unconsti

[[Page 433]]
tutional. A candidacy in the primary is a voluntary act of the 
applicant. He is not barred, discriminatorily, from participating but 
must comply with the rules of the party. Surely one may voluntarily 
assume obligations to vote for a certain candidate. The state offers him 
opportunity to become a candidate for elector on his own terms, although 
he must file his declaration before the primary. Ala. Code, Tit. 17, 
Sec. 145. Even though the victory of an independent candidate for 
elector in Alabama cannot be anticipated, the state does offer the 
opportunity for the development of other strong political organizations 
where the need is felt for them by a sizable block of voters. Such 
parties may leave their electors to their own choice.

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

        \92\Id., 228-231.
        \93\Id., 232-233.

  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 Inde

[[Page 434]]
pendence. The only issue with regard to the qualifications set out in 
this clause, which appears to be susceptible of argument, is whether a 
child born abroad of American parents is ``a natural born citizen'' in 
the sense of the clause. Such a child is a citizen as a consequence of 
statute.\94\ Whatever the term ``natural born'' means, it no doubt does 
not include a person who is ``naturalized.'' Thus, the answer to the 
question might be seen to turn on the interpretation of the first 
sentence of the first section of the Fourteenth Amendment, providing 
that ``[a]ll persons born or naturalized in the United States'' are 
citizens.\95\ Significantly, however, Congress, in which a number of 
Framers sat, provided in the Naturalization act of 1790 that ``the 
children of citizens of the United States, that may be born beyond the 
sea, . . . shall be considered as natural born citizens. . . .''\96\ 
This phrasing followed the literal terms of British statutes, beginning 
in 1350, under which persons born abroad, whose parents were both 
British subjects, would enjoy the same rights of inheritance as those 
born in England; beginning with laws in 1709 and 1731, these statutes 
expressly provided that such persons were natural-born subjects of the 
crown.\97\ There is reason to believe, therefore, that the phrase 
includes persons who become citizens at birth by statute because of 
their status in being born abroad of American citizens.\98\ Whether the 
Supreme Court would decide the issue should it ever arise in a ``case or 
controversy'' as well as how it might decide it can only be speculated 

        \94\8 U.S.C. Sec. 1401.
        \95\Reliance on the provision of an Amendment adopted subsequent 
to the constitutional provision being interpreted is not precluded by 
but is strongly militated against by the language in Freytag v. CIR, 501 
U.S. 868, 886-887 (1991), in which the Court declined to be bound by the 
language of the 25th Amendment in determining the meaning of ``Heads of 
Departments'' in the appointments clause. See also id., 917 (Justice 
Scalia concurring). If the Fourteenth Amendment is relevant and the 
language is exclusive, that is, if it describes the only means by which 
persons can become citizens, then, anyone born outside the United States 
would have to be considered naturalized in order to be a citizen, and a 
child born abroad of American parents is to be considered 
``naturalized'' by being statutorily made a citizen at birth. Although 
dictum in certain cases supports this exclusive interpretation of the 
Fourteenth Amendment, United States v. Wong Kim Ark, 169 U.S. 649, 702-
703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), the most 
recent case in its holding and language rejects it. Rogers v. Bellei, 
401 U.S. 815 (1971).
        \96\Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). 
See Weedin v. Chin Bow, 274 U.S. 657, 661-666 (1927); United States v. 
Wong Kim Ark, 169 U.S. 649, 672-675 (1898). With minor variations, this 
language remained law in subsequent reenactments until an 1802 Act, 
which omitted the italicized words for reasons not discernable. See Act 
of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring 
of American-citizen fathers, but omitting the italicized phrase).
        \97\25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4 
Geo. 2, ch. 21 (1731).
        \98\See, e.g., Gordon,Who Can Be President of the United States: 
The Unresolved Enigma, 28 Md. L. Rev. 1 (1968).

[[Page 435]]

  Clause 6. In Case of the Removal of the President from Office, or of 
his Death, Resignation, or Inability to discharge the Powers and Duties 
of the said Office, the Same shall devolve on the Vice President, and 
the Congress may by law provide for the Case of Removal, Death, 
Resignation or Inability, both of the President and Vice President 
declaring what Officer shall then act as President, and such Officer 
shall act accordingly until the Disability be removed, or a President 
shall be elected.

                         PRESIDENTIAL SUCCESSION

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

        \99\E. Corwin, op. cit., n.44, 53-59, 344 n. 46.
                                            Cls. 7-8--Compensation, Oath

  Clause 7. The President shall, at stated Times, receive for his 
Services, a Compensation which shall neither be encreased nor diminished 
during the Period for which he shall have been elected, and he shall not 
receive within that Period any other Emolument from the United States, 
or any of them.

                       COMPENSATION AND EMOLUMENTS

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

        \100\Cf. 13 Ops. Atty. Gen. 161 (1869), holding that a specific 
tax by the United States upon the salary of an officer, to be deducted 
from the amount which otherwise would by law be payable as such salary, 
is a diminution of the compensation to be paid to him which, in the case 
of the President, would be unconstitutional if the act of Congress 
levying the tax was passed during his official term.


[[Page 436]]
  Clause 8. Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation:--``I do solemnly swear (or 
affirm) that I will faithfully execute the Office of President of the 
United States, and will to the best of my Ability, preserve, protect and 
defend the Constitution of the United States.''

                             OATH OF OFFICE

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

        \101\Act of March 1, 1792, 1 Stat. 239, Sec. 12.

        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 

        \102\2 J. Richardson, op. cit., n.42, 576. Chief Justice Taney, 
who as a member of Jackson's Cabinet had drafted the message, later 
repudiated this possible reading of the message. 2 C. Warren, The 
Supreme Court in United States History  (New York: 1926), 223-224.
        \103\6 J. Richardson, op. cit., n.42, 25.
        \104\2 Trial of Andrew Johnson (Washington: 1868), 200, 293, 


                               ARTICLE II

                          EXECUTIVE DEPARTMENT


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

[[Page 437]]
ice of the United States; he may require the Opinion, in writing, of the 
principal Officer in each of the executive Departments, upon any Subject 
relating to the Duties of their respective Office, and he shall have 
Power to grant Reprieves and Pardons for Offences against the United 
States, except in Cases of Impeachment.


      Development of the Concept

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

        \105\May, The President Shall Be Commander in Chief, in E. May 
(ed.), The Ultimate Decision--The President as Commander in Chief (New 
York: 1960), 1. In the Virginia ratifying convention, Madison, replying 
to Patrick Henry's objection that danger lurked in giving the President 
control of the military, said: ``Would the honorable member say that the 
sword ought to be put in the hands of the representatives of the people, 
or in other hands independent of the government altogether?'' 3 J. 
Elliot, The Debates in the Several State Conventions on the Adoption of 
the Federal Constitution (Washington: 1836), 393. In the North Carolina 
convention, Iredell said: ``From the nature of the thing, the command of 
armies ought to be delegated to one person only. The secrecy, dispatch, 
and decision, which are necessary in military operations can only be 
expected from one person.'' 4 id., 107.

        The Limited View.--The purely military aspects of the Commander-
in-Chiefship were those that were originally stressed. Hamilton said the 
office ``would amount to nothing more than the supreme command and 
direction of the Military and naval forces, as first general and admiral 
of the confederacy.''\106\ Story wrote in his Commentaries: ``The 
propriety of admitting the president to be commander in chief, so far as 
to give orders, and have a general superintendency, was admitted. But it 
was urged, that it would be dangerous to let him command in person, 
without any restraint, as he might make a bad use of it. The consent of 
both houses of Congress ought, therefore, to be required, before he 
should take the actual command. The answer then given was, that though 
the president might, there was no necessity that he should, take the com

[[Page 438]]
mand in person; and there was no probability that he would do so, except 
in extraordinary emergencies, and when he was possessed of superior 
military talents.''\107\ In 1850, Chief Justice Taney, for the Court, 
said: ``His duty and his power are purely military. As commander-in-
chief, he is authorized to direct the movements of the naval and 
military forces placed by law at his command, and to employ them in the 
manner he may deem most effectual to harass and conquer and subdue the 
enemy. He may invade the hostile country, and subject it to the 
sovereignty and authority of the United States. But his conquests do not 
enlarge the boundaries of this Union, nor extend the operation of our 
institutions and laws beyond the limits before assigned to them by the 
legislative power.

        \106\The Federalist, No. 69 (J. Cooke ed., 1961), 465.
        \107\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1486.

        ``. . . 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 

        \108\Fleming v. Page, 9 How. (50 U.S.) 603, 615, 618 (1850).
        \109\Ex parte Milligan, 4 Wall. (71 U.S.) 2, 139 (1866).

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

[[Page 439]]
tion this character and scope. Speaking for the majority of the Court, 
Justice Grier answered: ``If a war be made by invasion of a foreign 
nation, the President is not only authorized but bound to resist force 
by force. He does not initiate the war, but is bound to accept the 
challenge without waiting for any special legislative authority. And 
whether the hostile party be a foreign invader, or States organized in 
rebellion, it is none the less a war, although the declaration of it be 
`unilateral.' Lord Stowell (1 Dodson, 247) observes, `It is not the less 
a war on that account, for war may exist without a declaration on either 
side. It is so laid down by the best writers of the law of nations. A 
declaration of war by one country only is not a mere challenge to be 
accepted or refused at pleasure by the other.'

        \110\1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. 
Sec. Sec. 331-334. See also Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32-
33 (1827), asserting the finality of the President's judgment of the 
existence of a state of facts requiring his exercise of the powers 
conferred by the act of 1795.
        \111\7 J. Richardson, op. cit., n.42, 3221, 3232.
        \112\2 Bl. (67 U.S.) 635 (1863).
        \113\7 J. Richardson, op. cit., n.42, 3215, 3216, 3481.

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

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

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

        \114\Id., 2 Bl. (67 U.S.), 668-670.

        Impact of the Prize Cases on World Wars I and II.--In brief, the 
powers claimable for the President under the Com

[[Page 440]]
mander-in-Chief clause at a time of wide-spread insurrection were 
equated with his powers under the clause at a time when the United 
States is engaged in a formally declared foreign war.\115\ And since 
Lincoln performed various acts especially in the early months of the 
Civil War which, like increasing the Army and Navy, admittedly fell 
within the constitutional provinces of Congress, it seems to have been 
assumed during World War I and II that the Commander-in-Chiefship 
carried with it the power to exercise like powers practically at 
discretion, not merely in wartime but even at a time when war became a 
strong possibility. No attention was given the fact that Lincoln had 
asked Congress to ratify and confirm his acts, which Congress promptly 
did,\116\ with the exception of his suspension of the habeas corpus 
privilege which was regarded by many as attributable to the President in 
the situation then existing, by virtue of his duty to take care that the 
laws be faithfully executed.\117\ Nor was this the only respect in which 
war or the approach of war was deemed to operate to enlarge the scope of 
power claimable by the President as Commander-in-Chief in wartime.\118\

        \115\See generally, E. Corwin, Total War and the Constitution 
(New York: 1946).
        \116\12 Stat. 326 (1861).
        \117\J. Randall, Constitutional Problems under Lincoln (Urbana: 
rev. ed. 1951), 118-139.
        \118\E.g., Attorney General Biddle's justification of seizure of 
a plant during World War II: ``As Chief Executive and as Commander-in-
Chief of the Army and Navy, the President possesses an aggregate of 
powers that are derived from the Constitution and from various statutes 
enacted by the Congress for the purpose of carrying on the war. . . . In 
time of war when the existence of the nation is at stake, this aggregate 
of powers includes authority to take reasonable steps to prevent nation-
wide labor disturbances that threaten to interfere seriously with the 
conduct of the war. The fact that the initial impact of these 
disturbances is on the production or distribution of essential civilian 
goods is not a reason for denying the Chief Executive and the Commander-
in-Chief of the Army and Navy the power to take steps to protect the 
nation's war effort.'' 40 Ops. Atty. Gen. 312, 319-320 (1944). Prior to 
the actual beginning of hostilities, Attorney General Jackson asserted 
the same justification upon seizure of an aviation plant. E. Corwin, 
Total War and the Constitution (New York: 1946), 47-48.
      Presidential Theory of the Commander-in-Chiefship in World War 
        II--And Beyond

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

        \119\56 Stat. 23 (1942).

        ``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 

[[Page 441]]
able responsibility to the people of this country to see to it that the 
war effort is no longer imperiled by threat of economic chaos.

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

        ``At the same time that farm prices are stabilized, wages can 
and will be stabilized also. This I will do.

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

        ``I have given the most thoughtful consideration to meeting this 
issue without further reference to the Congress. I have determined, 
however, on this vital matter to consult with the Congress. . . .

        ``The American people can be sure that I will use my powers with 
a full sense of my responsibility to the Constitution and to my country. 
The American people can also be sure that I shall not hesitate to use 
every power vested in me to accomplish the defeat of our enemies in any 
part of the world where our own safety demands such defeat.

        ``When the war is won, the powers under which I act 
automatically revert to the people--to whom they belong.''\120\

        \120\88 Cong. Rec. 7044 (1942). Congress promptly complied, 56 
Stat. 765 (1942), so that the President was not required to act on his 
own. But see E. Corwin, op. cit., n.44, 65-66.

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

        \121\For a listing of the agencies and an account of their 
creation to the close of 1942, see Vanderbilt, War Powers and Their 
Administration, in 1942 Annual Survey of American Law (New York Univ.), 

        Constitutional Status of Presidential Agencies.--The question of 
the legal status of the presidential agencies was dealt with judicially 
but once. This was in the decision of the United States Court of Appeals 
of the District of Columbia in Employers Group v. National War Labor 
Board,\122\ which was a suit to annul and enjoin a ``directive order'' 
of the War Labor Board. The Court

[[Page 442]]
refused the injunction on the ground that at the time when the directive 
was issued any action of the Board was ``informatory,'' ``at most 
advisory.'' In support of this view the Court quoted approvingly a 
statement by the chairman of the Board itself: ``These orders are in 
reality mere declarations of the equities of each industrial dispute, as 
determined by a tripartite body in which industry, labor, and the public 
share equal responsibility; and the appeal of the Board is to the moral 
obligation of employers and workers to abide by the nonstrike, no-lock-
out agreement and . . . to carry out the directives of the tribunal 
created under that agreement by the Commander in Chief.''\123\ Nor, the 
Court continued, had the later War Labor Disputes Act vested War Labor 
Board orders with any greater authority, with the result that they were 
still judicially unenforceable and unreviewable. Following this theory, 
the War Labor Board was not an office wielding power, but a purely 
advisory body, such as Presidents have frequently created in the past 
without the aid or consent of Congress. Congress itself, nevertheless, 
both in its appropriation acts and in other legislation, treated the 
presidential agencies as in all respects offices.\124\

        \122\143 F.2d 145 (D.C.Cir. 1944).
        \123\Id., 149.
        \124\E. Corwin, op. cit., n.42, 244, 245, 459.

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

        \125\E.O. 9066, 7 Fed. Reg. 1407 (1942).

        It was apparently the original intention of the Administration 
to rest its measures concerning this matter on the general principle of 
military necessity and the power of the Commander-in-Chief in wartime. 
But before any action of importance was taken under the order, Congress 
ratified and adopted it by the Act of March 21, 1942,\126\ by which it 
was made a misdemeanor to knowingly enter, remain in, or leave 
prescribed military areas contrary to the orders of the Secretary of War 
or of the commanding officer of the area. The cases which subsequently 
arose in consequence of the order

[[Page 443]]
were decided under the order plus the Act. The question at issue, said 
Chief Justice Stone for the Court, ``is not one of Congressional power 
to delegate to the President the promulgation of the Executive Order, 
but whether, acting in cooperation, Congress and the Executive have 
constitutional . . . [power] to impose the curfew restriction here 
complained of.''\127\ This question was answered in the affirmative, as 
was the similar question later raised by an exclusion order.\128\

        \126\56 Stat. 173 (1942).
        \127\Hirabayashi v. United States, 320 U.S. 81, 91-92 (1943).
        \128\Korematsu v. United States, 323 U.S. 214 (1944). Long 
afterward, in 1984, a federal court granted a writ of coram nobis and 
overturned Korematsu's conviction, Korematsu v. United States, 584 
F.Supp. 1406 (N.D.Calif. 1984), and in 1986, a federal court vacated 
Hirabayashi's conviction for failing to register for evacuation but let 
stand the conviction for curfew violations. Hirabayashi v. United 
States, 627 F.Supp. 1445 (W.D.Wash. 1986). Other cases were pending, but 
Congress then implemented the recommendations of the Commission on 
Wartime Relocation and Internment of Civilians by acknowledging ``the 
fundamental injustice of the evacuation, relocation and internment,'' 
and apologizing on behalf of the people of the United States. P. L. 100-
383, 102 Stat. 903, 50 U.S.C. App. Sec. 1989 et seq. Reparations were 
approved, and each living survivor of the internment was to be 
compensated in an amount roughly approximating $20,000.

        Presidential Government of Labor Regulations.--The most 
important segment of the home front regulated by what were in effect 
presidential edicts was the field of labor relations. Exactly six months 
before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his 
proclamation thirteen days earlier of an unlimited national emergency, 
issued an Executive Order seizing the North American Aviation Plant at 
Inglewood, California, where, on account of a strike, production was at 
a standstill.\129\ Attorney General Jackson justified the seizure as 
growing out of the ``duty constitutionally and inherently rested upon 
the President to exert his civil and military as well as his moral 
authority to keep the defense efforts of the United States a going 
concern,'' as well as ``to obtain supplies for which Congress has 
appropriated the money, and which it has directed the President to 
obtain.''\130\ Other seizures followed, and on January 12, 1942, Mr. 
Roosevelt, by Executive Order 9017, created the National War Labor 
Board. ``Whereas,'' the order read in part, ``by reason of the state of 
war declared to exist by joint resolutions of Congress, . . . the 
national interest demands that there shall be no interruption of any 
work which contributes to the effective prosecution of the war; and 
Whereas as a result of a conference of representatives of labor and 
industry which met at the call of the President on December 17, 1941, it 
has been agreed that for the duration of the war there shall be no 
strikes or lockouts, and that all labor disputes shall be settled by 
peaceful means, and

[[Page 444]]
that a National War Labor Board be established for a peaceful adjustment 
of such disputes. Now, therefore, by virtue of the authority vested in 
me by the Constitution and the statutes of the United States, it is 
hereby ordered: 1. There is hereby created in the Office for Emergency 
Management a National War Labor Board. . . .''\131\ In this field, too, 
Congress intervened by means of the War Labor Disputes Act of June 25, 
1943,\132\ which, however, still left ample basis for presidential 
activity of a legislative character.\133\

        \129\E.O. 8773, 6 Fed. Reg. 2777 (1941).
        \130\E. Corwin, Total War and the Constitution (New York: 1946), 
        \131\7 Fed. Reg. 237 (1942).
        \132\57 Stat. 163 (1943).
        \133\See Vanderbilt, War Powers and their Administration, 1945 
Annual Survey of American Law (N.Y. Univ.), 254, 271-273.

        Sanctions Implementing Presidential Directives.--To implement 
his directives as Commander-in-Chief in wartime, and especially those 
which he issued in governing labor disputes, President Roosevelt often 
resorted to ``sanctions,'' which may be described as penalties lacking 
statutory authorization. Ultimately, the President sought to put 
sanctions in this field on a systematic basis. The order empowered the 
Director of Economic Stabilization, on receiving a report from the 
National War Labor Board that someone was not complying with its orders, 
to issue ``directives'' to the appropriate department or agency 
requiring that privileges, benefits, rights, or preferences enjoyed by 
the noncomplying party be withdrawn.\134\

        \134\E.O. 9370, 8 Fed. Reg. 11463 (1943).

        Sanctions were also occasionally employed by statutory agencies, 
such as OPA, to supplement the penal provisions of the Emergency Price 
Control Act of January 30, 1942.\135\ In the case of Steuart & Bro. v. 
Bowles,\136\ the Supreme Court had the opportunity to regularize this 
type of executive emergency legislation. Here, a retail dealer in fuel 
oil was charged with having violated a rationing order of OPA by 
obtaining large quantities of oil from its supplier without surrendering 
ration coupons, by delivering many thousands of gallons of fuel oil 
without requiring ration coupons, and so on, and was prohibited by the 
agency from receiving oil for resale or transfer for the ensuing year. 
The offender conceded the validity of the rationing order in support of 
which the suspension order was issued but challenged the validity of the 
latter as imposing a penalty that Congress had not enacted and asked the 
district court to enjoin it.

        \135\56 Stat. 23 (1942).
        \136\322 U.S. 398 (1944).

        The court refused to do so and was sustained by the Supreme 
Court in its position. Said Justice Douglas, speaking for the Court: 
``Without rationing, the fuel tanks of a few would be full; the fuel

[[Page 445]]
tanks of many would be empty. Some localities would have plenty; 
communities less favorably situated would suffer. Allocation or 
rationing is designed to eliminate such inequalities and to treat all 
alike who are similarly situated. . . . But middlemen--wholesalers and 
retailers--bent on defying the rationing system could raise havoc with 
it. . . . These middlemen are the chief if not the only conduits between 
the source of limited supplies and the consumers. From the viewpoint of 
a rationing system a middleman who distributes the product in violation 
and disregard of the prescribed quotas is an inefficient and wasteful 
conduit. . . . Certainly we could not say that the President would lack 
the power under this Act to take away from a wasteful factory and route 
to an efficient one a previous supply of material needed for the 
manufacture of articles of war. . . . From the point of view of the 
factory owner from whom the materials were diverted the action would be 
harsh. . . . But in time of war the national interest cannot wait on 
individual claims to preference. Yet if the President has the power to 
channel raw materials into the most efficient industrial units and thus 
save scarce materials from wastage it is difficult to see why the same 
principle is not applicable to the distribution of fuel oil.''\137\ 
Sanctions were, therefore, constitutional when the deprivations they 
wrought were a reasonably implied amplification of the substantive power 
which they supported and were directly conservative of the interests 
which this power was created to protect and advance. It is certain, 
however, that sanctions not uncommonly exceeded this pattern.\138\

        \137\Id., 404-405.
        \138\E. Corwin, op. cit., n.44, 249-250.

        The Postwar Period.--The end of active hostilities did not 
terminate either the emergency or the federal-governmental response to 
it. President Truman proclaimed the termination of hostilities on 
December 31, 1946,\139\ and Congress enacted a joint resolution which 
repealed a great variety of wartime statutes and set termination dates 
for others in July, 1947.\140\ Signing the resolution, the President 
said that the emergencies declared in 1939 and 1940 continued to exist 
and that it was ``not possible at this time to provide for terminating 
all war and emergency powers.''\141\ The hot war was giving way to the 
Cold War.

        \139\Proc. 2714, 12 Fed. Reg. 1 (1947).
        \140\S.J. Res. 123, 61 Stat. 449 (1947).
        \141\Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).

        Congress thereafter enacted a new Housing and Rent Act to 
continue the controls begun in 1942 \142\ and continued the draft.\143\

[[Page 446]]
With the outbreak of the Korean War, legislation was enacted 
establishing general presidential control over the economy again\144\ 
and by executive order the President created agencies to exercise the 
power.\145\ The Court continued to assume the existence of a state of 
wartime emergency prior to Korea but with misgivings. In Woods v. Cloyd 
W. Miller Co.,\146\ the Court held constitutional the new rent control 
law on the ground that cessation of hostilities did not conclude the 
Government's powers but that the power continued to remedy the evil 
arising out of the emergency. Yet for the Court, Justice Douglas noted: 
``We recognize the force of the argument that the effects of war under 
modern conditions may be felt in the economy for years and years, and 
that if the war power can be used in days of peace to treat all the 
wounds which war inflicts on our society, it may not only swallow up all 
other powers of Congress but largely obliterate the Ninth and Tenth 
Amendments as well. There are no such implications in today's 
decision.''\147\ Justice Jackson, while concurring, noted that he found 
the war power ``the most dangerous one to free government in the whole 
catalogue of powers'' and cautioned that its exercise should ``be 
scrutinized with care.''\148\ And in Ludecke v. Watkins,\149\ four 
Justices were prepared to hold that the presumption in the statute under 
review of continued war with Germany was fiction and not to be utilized.

        \142\61 Stat. 193 (1947).
        \143\62 Stat. 604 (1948).
        \144\Defense Production Act of 1950, 64 Stat. 798.
        \145\E.O. 10161, 15 Fed. Reg. 6105 (1950).
        \146\333 U.S. 138 (1948).
        \147\Id., 143-144.
        \148\Id., 146-147.
        \149\335 U.S. 160 (1948).

        But the postwar was a time of reaction against the wartime 
exercise of power by President Roosevelt, and President Truman was not 
permitted the same liberties. The Twenty-second Amendment writing into 
permanent law the two-term custom, the ``Great Debate'' about our 
participation in NATO, the attempt to limit the treaty-making power, and 
other actions, bespoke the reaction.\150\ The Supreme Court signalized 
this reaction when it struck down the President's action in seizing the 
steel industry while it was struck during the Korean War.\151\

        \150\See A. Kelly & W. Harbison, The American Constitution--Its 
Origins and Development (New York: 4th ed. 1970), ch. 31.
        \151\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

        Nonetheless, the long period of the Cold War and of active 
hostilities in Korea and Indochina, in addition to the issue of the use 
of troops in the absence of congressional authorization, further created 
conditions for consolidation of powers in the President. In particular, 
a string of declarations of national emergencies, most

[[Page 447]]
under, in whole or partially, the Trading with the Enemy Act,\152\ 
undergirded the exercise of much presidential power. In the storm of 
response to the Vietnamese conflict, here, too, Congress reasserted 
legislative power to curtail what it viewed as excessive executive 
power, repealing the Trading with the Enemy Act and enacting in its 
place the International Emergency Economic Powers Act (IEEPA),\153\ 
which did not alter most of the range of powers delegated to the 
President but which did change the scope of the power delegated to 
declare national emergencies.\154\ Congress also passed the National 
Emergencies Act, prescribing procedures for the declaration of national 
emergencies, for their termination, and for presidential reporting to 
Congress in connection with national emergencies. To end the practice of 
declaring national emergencies for an indefinite duration, Congress 
provided that any emergency not otherwise terminated would expire one 
year after its declaration unless the President published in the Federal 
Register and transmitted to Congress a notice that the emergency would 
continue in effect.\155\ Whether the balance of power between President 
and Congress shifted at all is not really a debatable question.

        \152\Sec. 301(1), 55 Stat. 838, 839-840 (1941).
        \153\91 Stat. 1626, 50 U.S.C. Sec. Sec. 1701-1706.
        \154\Congress authorized the declaration of a national emergency 
based only on ``any unusual and extraordinary threat, which has its 
source in whole or substantial part outside the United States, to the 
national security, foreign policy, or the economy of the United States. 
. . .'' 50 U.S.C. Sec. 1701.
        \155\P. L. 94-412, 90 Stat. 1255 (1976).
      The Cold War and After: Presidential Power To Use Troops Overseas 
        Without Congressional Authorization

        Reaction after World War II did not persist, soon running its 
course, and the necessities, real and only perceived as such, of the 
United States role as world power and chief guarantor of the peace 
operated to expand the powers of the President and to diminish 
congressional powers in the foreign relations arena. President Truman 
did not seek congressional authorization before sending troops to Korea 
and subsequent Presidents similarly acted on their own in putting troops 
into many foreign countries, the Dominican Republic, Lebanon, Grenada, 
Panama, and the Persian Gulf, among them, as well as most notably into 
Indochina.\156\ Eventually, public opposition precipitated another 
constitutional debate whether the President had the authority to commit 
troops to foreign combat without the approval of Congress, a debate 
which went on inconclu

[[Page 448]]
sively between Congress and Executive\157\ and one which the courts were 
content generally to consign to the exclusive consideration of those two 
bodies. The substance of the debate concerns many facets of the 
President's powers and responsibilities--from his obligation to protect 
the lives and property of United States citizens abroad, to execute the 
treaty obligations of the Nation, to further the national security 
interests of the Nation, and to deal with aggression and threats of 
aggression as they confront him. Defying neat summarization, the 
considerations nevertheless merit at least an historical survey and an 
attempted categorization of the arguments.

        \156\See the discussion in National Commitments Resolution, 
Report of the Senate Committee on Foreign Relations, S. Rept. No. 91-
129, 91st Congress, 1st sess. (1969); U.S. Commitments to Foreign 
Powers, Hearings before the Senate Committee on Foreign Relations, 90th 
Congress, 1st sess. (1967), 16-19 (Professor Bartlett).
        \157\See under Article I, Sec. 8, cls. 11-14.

        The Historic Use of Force Abroad.--In 1912, the Department of 
State published a memorandum prepared by its Solicitor which set out to 
justify the Right to Protect Citizens in Foreign Countries by Landing 
Forces.''\158\ In addition to the justification, the memorandum 
summarized 47 instances in which force had been used, in most of them 
without any congressional authorization. Twice revised and reissued, the 
memorandum was joined by a 1928 independent study and a 1945 work by a 
former government official in supporting conclusions which drifted away 
from the original justification of the use of United States forces 
abroad to the use of such forces at the discretion of the President and 
free from control by Congress.\159\

        \158\J. Clark, Memorandum by the Solicitor for the Department of 
State, Right to Protect Citizens in Foreign Countries by Landing Forces  
(Washington: 1912).
        \159\Ibid., (Washington: 1929; 1934); M. Offutt, The Protection 
of Citizens Abroad by the Armed Forces of the United States (Baltimore: 
1928); J. Rogers, World Policing and the Constitution (Boston: 1945). 
The burden of the last cited volume was to establish that the President 
was empowered to participate in United Nations peacekeeping actions 
without having to seek congressional authorization on each occasion; it 
may be said to be one of the earliest, if not the earliest, propounding 
of the doctrine of inherent presidential powers to use troops abroad 
outside the narrow compass traditionally accorded those powers.

        New lists and revised arguments were published to support the 
actions of President Truman in sending troops to Korea and Presidents 
Kennedy and Johnson in sending troops first to Vietnam and then to 
Indochina generally,\160\ and new lists have been pro

[[Page 449]]
pounded.\161\ The great majority of the instances cited involved fights 
with pirates, landings of small naval contingents on barbarous or 
semibarbarous coasts to protect commerce, the dispatch of small bodies 
of troops to chase bandits across the Mexican border, and the like, and 
some incidents supposedly without authorization from Congress did in 
fact have underlying statutory or other legislation authorization. Some 
instances, President Polk's use of troops to precipitate war with Mexico 
in 1846, President Grant's attempt to annex the Dominican Republic, 
President McKinley's dispatch of troops into China during the Boxer 
Rebellion, involved considerable exercises of presidential power, but in 
general purposes were limited and congressional authority was sought for 
the use of troops against a sovereign state or in such a way as to 
constitute war. The early years of this century saw the expansion in the 
Caribbean and Latin America both of the use of troops for the furthering 
of what was perceived to be our national interests and of the power of 
the President to deploy the military force of the United States without 
congressional authorization.\162\

        \160\E.g., H. Rept. No. 127, 82d Congress, 1st sess. (1951), 55-
62; Corwin, Who Has the Power to Make War? New York Times Magazine (July 
31, 1949), 11; Authority of the President to Repel the Attack in Korea, 
23 Dept. State Bull. 173 (1950); Department of State, Historical Studies 
Division, Armed Actions Taken by the United States Without a Declaration 
of War, 1789-1967  (Res. Proj. No. 806A (Washington: 1967)). That the 
compilation of such lists was more than a defense against public 
criticism can be gleaned from a revealing discussion in Secretary of 
State Acheson's memoirs detailing why the President did not seek 
congressional sanction for sending troops to Korea. ``There has never, I 
believe, been any serious doubt--in the sense of non-politically 
inspired doubt--of the President's constitutional authority to do what 
he did. The basis for this conclusion in legal theory and historical 
precedent was fully set out in the State Department's memorandum of July 
3, 1950, extensively published. But the wisdom of the decision not to 
ask for congressional approval has been doubted. . . .''
        After discussing several reasons establishing the wisdom of the 
decision, the Secretary continued: ``The President agreed, moved also, I 
think, by another passionately held conviction. His great office was to 
him a sacred and temporary trust, which he was determined to pass on 
unimpaired by the slightest loss of power or prestige. This attitude 
would incline him strongly against any attempt to divert criticism from 
himself by action that might establish a precedent in derogation of 
presidential power to send our forces into battle. The memorandum that 
we prepared listed eighty-seven instances in the past century in which 
his predecessors had done this. And thus yet another decision was 
made.'' D. Acheson, Present at the Creation (New York: 1969), 414, 415.
        \161\War Powers Legislation, Hearings before the Senate Foreign 
Relations Committee, 92d Congress, 1st sess. (1971), 347, 354-355, 359-
379 (Senator Goldwater); Emerson, War Powers Legislation, 74 W. Va. L. 
Rev. 53 (1972). The most complete list as of the time prepared is 
Collier, Instances of Use of United States Armed Forces Abroad, 1798-
1989, Cong. Res. Serv. (1989), which was cited for its numerical total 
in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an 
effort to reconstruct the process of development and continuation of the 
listings, see F. Wormuth & E. Firmage, To Chain the Dog of War: The War 
Power of Congress in History and Law (New York: 2d ed. 1989), 142-145.
        \162\Of course, considerable debate continues with respect to 
the meaning of the historical record. For reflections of the narrow 
reading, see National Commitments Resolution, Report of the Senate 
Committee on Foreign Relations, S. Rept. No. 91-129, 1st sess. (1969); 
J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and 
its Aftermath (Princeton: 1993). On the broader reading and finding 
great presidential power, see A. Sofaer, War, Foreign Affairs and 
Constitutional Power: The Origins (New York: 1976); Emerson, Making War 
Without a Declaration, 17 J. Legis. 23 (1990).

        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

[[Page 450]]
until the ``Great Debate'' over the commitment of troops by the United 
States to Europe under the Atlantic Pact. While congressional 
authorization was obtained, that debate, the debate over the United 
Nations charter, and the debate over Article 5 of the North Atlantic 
Treaty of 1949, declaring that ``armed attack'' against one signatory 
was to be considered as ``an attack'' against all signatories, provided 
for the occasion of the formulation of a theory of independent 
presidential power to use the armed forces in the national interest at 
his discretion.\163\ Thus, Secretary of State Acheson told Congress: 
``Not only has the President the authority to use the armed forces in 
carrying out the broad foreign policy of the United States implementing 
treaties, but it is equally clear that this authority may not be 
interfered with by the Congress in the exercise of powers which it has 
under the Constitution.''\164\

        \163\For some popular defenses of presidential power during the 
``Great Debate,'' see Corwin, Who Has the Power to Make War? New York 
Times Magazine (July 31, 1949), 11; Commager, Presidential Power: The 
Issue Analyzed, New York Times Magazine (January 14, 1951), 11. Cf. 
Douglas, The Constitutional and Legal Basis for the President's Action 
in Using Armed Forces to Repel the Invasion of South Korea, 96 Cong. 
Rec. 9647 (1950). President Truman and Secretary Acheson utilized the 
argument from the U. N. Charter in defending the United States actions 
in Korea, and the Charter defense has been made much of since. See, 
e.g., Stromseth, Rethinking War Powers: Congress, the President, and the 
United Nations, 81 Geo. L. J. 597 (1993).
        \164\Assignment of Ground Forces of the United States to Duty in 
the European Area, Hearings before the Senate Foreign Relations and 
Armed Services Committees, 82d Congress, 1st sess. (1951), 92.

        The Theory of Presidential Power.--The fullest expression of the 
presidential power proponents has been in defense of the course followed 
in Indochina. Thus, the Legal Adviser of the State Department, in a 
widely circulated document, contended: ``Under the Constitution, the 
President, in addition to being Chief Executive, is Commander in Chief 
of the Army and Navy. He holds the prime responsibility for the conduct 
of United States foreign relations. These duties carry very broad 
powers, including the power to deploy American forces abroad and commit 
them to military operations when the President deems such action 
necessary to maintain the security and defense of the United States. 
. . .

        ``In 1787 the world was a far larger place, and the framers 
probably had in mind attacks upon the United States. In the 20th 
century, the world has grown much smaller. An attack on a country far 
from our shores can impinge directly on the nation's security. In the 
SEATO treaty, for example, it is formally declared that an armed attack 
against Viet Nam would endanger the peace and security of the United 

[[Page 451]]

        ``Under our Constitution it is the President who must decide 
when an armed attack has occurred. He has also the constitutional 
responsibility for determining what measures of defense are required 
when the peace and safety of the United States are endangered. If he 
considers that deployment of U.S. forces to South Viet Nam is required, 
and that military measures against the source of Communist aggression in 
North Viet Nam are necessary, he is constitutionally empowered to take 
those measures.''\165\

        \165\Meeker, The Legality of United States Participation in the 
Defense of Viet Nam, 54 Dept. State Bull. 474, 484-485 (1966). See also 
Moore, The National Executive and the Use of the Armed Forces Abroad, 21 
Naval War College Rev. 28 (1969); Wright, The Power of the Executive to 
Use Military Forces Abroad, 10 Va. J. Int. L. 43 (1969); Documents 
Relating to the War Powers of Congress, The President's Authority as 
Commander-in-Chief and the War in Indochina, Senate Committee on Foreign 
Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under 
Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser, 
Department of State), 120 (Professor Moore), 175 (Assistant Attorney 
General Rehnquist).

        Opponents of such expanded presidential powers have contended, 
however, that the authority to initiate war was not divided between the 
Executive and Congress but was vested exclusively in Congress. The 
President had the duty and the power to repeal sudden attacks and act in 
other emergencies, and in his role as Commander-in-Chief he was 
empowered to direct the armed forces for any purpose specified by 
Congress.\166\ Though Congress asserted itself in some respects, it 
never really managed to confront the President's power with any sort of 
effective limitation, until recently.

        \166\E.g., F. Wormuth & E. Firmage, To Chain the Dog of War: The 
War Power of Congress in History and Law (New York: 1986); J. Ely, War 
and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 
(Princeton: 1993); U.S. Commitments to Foreign Powers, Hearings before 
the Senate Committee on Foreign Relations, 90th Congress, 1st sess. 
(1967), 9 (Professor Bartlett); War Powers Legislation, Hearings before 
the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971), 
7 (Professor Commager), 75 (Professor Morris), 251 (Professor Mason).

        The Power of Congress to Control the President's Discretion.--
Over the President's veto, Congress enacted the War Powers 
Resolution,\167\ designed to redistribute the war powers between the 
President and Congress. Although ambiguous in some respects, the 
Resolution appears to define restrictively the President's powers, to

[[Page 452]]
require him to report fully to Congress upon the introduction of troops 
into foreign areas, to specify a maximum time limitation on the 
engagement of hostilities absent affirmative congressional action, and 
to provide a means for Congress to require cessation of hostilities in 
advance of the time set. The Resolution states that the President's 
power to commit United States troops into hostilities, or into 
situations of imminent involvement in hostilities, is limited to 
instances of (1) a declaration of war, (2) a specific statutory 
authorization, or (3) a national emergency created by an attack on the 
United States, its territories or possessions, or its armed forces.\168\ 
In the absence of a declaration of war, a President must within 48 hours 
report to Congress whenever he introduces troops (1) into hostilities or 
situations of imminent hostilities, (2) into a foreign nation while 
equipped for combat, except in certain nonhostile situations, or (3) in 
numbers which substantially enlarge United States troops equipped for 
combat already located in a foreign nation.\169\ The President is 
required to terminate the use of troops in the reported situation within 
60 days of reporting, unless Congress (1) has declared war, (2) has 
extended the period, or (3) is unable to meet as a result of an attack 
on the United States, but the period can be extended another 30 days by 
the President's certification to Congress of unavoidable military 
necessity respecting the safety of the troops.\170\ Congress may through 
the passage of a concurrent resolution require the President to remove 
the troops sooner.\171\ The Resolution further states that no 
legislation, whether enacted prior to or subsequent to passage of the 
Resolution will be taken to empower the President to use troops abroad 
unless the legislation specifically does so and that no treaty may so 
empower the President unless it is supplemented by implementing 
legislation specifically addressed to the issue.\172\

        \167\P.L. 93-148, 87 Stat. 555, 50 U.S.C. Sec. Sec. 1541-1548. 
For the congressional intent and explanation, see H. Rept. No. 93-287, 
S. Rept. No. 93-220, and H. Rept. No. 93-547 (Conference Report), all 
93d Congress, 1st sess. (1973). The President's veto message is H. Doc. 
No. 93-171, 93d Congress. 1st sess. (1973). All this material is 
collected in The War Powers Resolution--Relevant Documents, Reports, 
Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d sess. 
(Comm. Print) (GPO: 1994), 1-46. For a narrative account of passage and 
an assessment of the disputed compliance to date, from the congressional 
point of view, see The War Powers Resolution, A Special Study of the 
House Committee on Foreign Affairs, 102d Cong., 2d sess. (Comm. Print) 
(GPO: 1982).
        \168\87 Stat. 554, 2(c), 50 U.S.C. Sec. 1541(c).
        \169\Id., Sec. 1543(a).
        \170\Id., Sec. 1544(b).
        \171\Id., Sec. 1544(c). It is the general consensus that, 
following INS v. Chadha, 462 U.S. 919 (1983), this provision of the 
Resolution is unconstitutional.
        \172\Id., 50 U.S.C. Sec. 1547(a).

        Aside from its use as a rhetorical device, the Resolution has 
been of little worth in reordering presidential-congressional relations 
in the years since its enactment. All Presidents operating under it have 
expressly or implicitly considered it to be an unconstitutional 
infringement on presidential powers, and on each occasion of use abroad 
of United States troops the President in reporting to Congress has done 
so ``consistent[ly] with'' the reporting sec

[[Page 453]]
tion but not pursuant to the provision.\173\ Upon the invasion of Kuwait 
by Iraqi troops in 1990, President Bush sought not congressional 
authorization but a United Nations Security Council resolution 
authorizing the use of force by member Nations. Only at the last moment 
did the President seek authorization from Congress, he and his officials 
contending he had the power to act unilaterally.\174\ Congress after 
intensive debate voted, 250 to 183 in the House of Representatives and 
53 to 46 in the Senate, to authorize the President to use United States 
troops pursuant to the U. N. resolution and purporting to bring the act 
within the context of the War Powers Resolution.\175\

        \173\See the text of the reports in The War Powers Resolution--
Relevant Documents, Reports, Correspondence, op. cit., n.167, 47 (Pres. 
Ford on transport of refugees from Danang), 55 (Pres. Carter on 
attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops 
in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 
147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262 
(Pres. Clinton on Haiti).
        \174\See Hearings on Crisis in the Persian Gulf Region: U. S. 
Policy Options and Implications, Senate Committee on Armed Services, 
101st Cong., 2d sess. (1990), 701 (Secretary Chaney) (President did not 
require ``any additional authorization from the Congress'' before 
attacking Iraq). On the day following his request for supporting 
legislation from Congress, President Bush, in answer to a question about 
the requested action, stated: ``I don't think I need it. . . . I feel 
that I have the authority to fully implement the United Nations 
resolutions.'' 27 Wkly. Comp. Pres. Doc. 25 (Jan. 8, 1991).
        \175\P. L. 102-1, 105 Stat. 3.

        Although there is recurrent talk within Congress and without 
with regard to amending the War Powers Resolution to strengthen it, no 
consensus has emerged, and there is little evidence that there exists 
within Congress the resolve to exercise the responsibility concomitant 
with strengthening it.\176\

        \176\See, on proposals to amend and on congressional 
responsibility, J. Ely, War and Responsibility: Constitutional Lessons 
of Vietnam and its Aftermath (Princeton: 1993).
      The President as Commander of the Armed Forces

        While the President customarily delegates supreme command of the 
forces in active service, there is no constitutional reason why he 
should do so, and he has been known to resolve personally important 
questions of military policy. Lincoln early in 1862 issued orders for a 
general advance in the hopes of stimulating McClellan to action; Wilson 
in 1918 settled the question of an independent American command on the 
Western Front; Truman in 1945 ordered that the bomb be dropped on 
Hiroshima and Nagasaki.\177\ As against an enemy in the field, the 
President possesses all the powers which are accorded by international 
law to any supreme com

[[Page 454]]
mander. ``He may invade the hostile country, and subject it to the 
sovereignty and authority of the United States.''\178\ In the absence of 
attempts by Congress to limit his power, he may establish and prescribe 
the jurisdiction and procedure of military commissions, and of tribunals 
in the nature of such commissions, in territory occupied by Armed Forces 
of the United States, and his authority to do this sometimes survives 
cessation of hostilities.\179\ He may employ secret agents to enter the 
enemy's lines and obtain information as to its strength, resources, and 
movements.\180\ He may, at least with the assent of Congress, authorize 
intercourse with the enemy.\181\ He may also requisition property and 
compel services from American citizens and friendly aliens who are 
situated within the theatre of military operations when necessity 
requires, thereby incurring for the United States the obligation to 
render ``just compensation.''\182\ By the same warrant, he may bring 
hostilities to a conclusion by arranging an armistice, stipulating 
conditions which may determine to a great extent the ensuing peace.\183\ 
He may not, however, affect a permanent acquisition of territory,\184\ 
though he may govern recently acquired territory until Congress sets up 
a more permanent regime.\185\

        \177\For a review of how several wartime Presidents have 
operated in this sphere, see E. May (ed.), The Ultimate Decision--The 
President as Commander in Chief (New York: 1960).
        \178\Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).
        \179\Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also 
Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).
        \180\Totten v. United States, 92 U.S. 105 (1876).
        \181\Hamilton v. Dillin, 21 Wall. (88 U.S.) 73 (1875); Haver v. 
Yaker, 9 Wall. (76 U.S.) 32 (1869).
        \182\Mitchell v. Harmony, 13 How. (54 U.S.) 115 (1852); United 
States v. Russell, 13 Wall. (80 U.S.) 623 (1871); Totten v. United 
States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).
        \183\Cf. the Protocol of August 12, 1898, which largely 
foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson's 
Fourteen Points, which were incorporated in the Armistice of November 
11, 1918.
        \184\Fleming v. Page, 9 How. (50 U.S.) 603, 615 (1850).
        \185\Santiago 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 is the ultimate tribunal for the enforcement of the rules and 
regulations which Congress adopts for the government of the forces, and 
which are enforced through courts-martial.\186\ Indeed, until 1830, 
courts-martial were convened solely on his authority as Commander-in-
Chief.\187\ Such rules and regulations are, moreover, it would seem, 
subject in wartime to his amendment at discretion.\188\ Similarly, the 
power of Congress to ``make rules for the government and regulation of 
the land and naval forces'' (Art. I, Sec. 8, cl. 14) did not prevent 
President Lincoln from promulgating in

[[Page 455]]
April, 1863, a code of rules to govern the conduct in the field of the 
armies of the United States which was prepared at his instance by a 
commission headed by Francis Lieber and which later became the basis of 
all similar codifications both here and abroad.\189\ One important power 
he lacks, that of choosing his subordinates, whose grades and 
qualifications are determined by Congress and whose appointment is 
ordinarily made by and with the advice and consent of the Senate, though 
undoubtedly Congress could if it wished vest their appointment in ``the 
President alone.''\190\ Also, the President's power to dismiss an 
officer from the service, once unlimited, is today confined by statute 
in time of peace to dismissal ``in pursuance of the sentence of a 
general court-martial or in mitigation thereof.''\191\ But the provision 
is not regarded by the Court as preventing the President from displacing 
an officer of the Army or Navy by appointing with the advice and consent 
of the Senate another person in his place.\192\ The President's power of 
dismissal in time of war Congress has never attempted to limit.

        \186\Swaim v. United States, 165 U.S. 553 (1897); and cases 
there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).
        \187\15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, 
where the contrary view is stated by Attorney General Wirt.
        \188\Ex parte Quirin, 317 U.S. 1, 28-29 (1942).
        \189\General Orders, No. 100, Official Records, War Rebellion, 
ser. III, vol. III; April 24, 1863.
        \190\See, e.g., Mimmack v. United States, 97 U.S. 426, 437 
(1878); United States v. Corson, 114 U.S. 619 (1885).
        \191\10 U.S.C. Sec. 804.
        \192\Mullan v. United States, 140 U.S. 240 (1891); Wallace v. 
United States, 257 U.S. 541 (1922).

        The Commander-in-Chief a Civilian Officer.--Is the Commander-in-
Chiefship a military or civilian office in the contemplation of the 
Constitution? Unquestionably the latter. An opinion by a New York 
surrogate deals adequately, though not authoritatively, with the 
subject: ``The President receives his compensation for his services, 
rendered as Chief Executive of the Nation, not for the individual parts 
of his duties. No part of his compensation is paid from sums 
appropriated for the military or naval forces; and it is equally clear 
under the Constitution that the President's duties as Commander in Chief 
represents only a part of duties ex officio as Chief Executive [Article 
II, sections 2 and 3 of the Constitution] and that the latter's office 
is a civil office. [Article II, section 1 of the Constitution; vol. 91, 
Cong. Rec. 4910-4916; Beard, The Republic (1943) pp. 100-103.] The 
President does not enlist in, and he is not inducted or drafted into, 
the armed forces. Nor, is he subject to court-martial or other military 
discipline. On the contrary, Article II, section 4 of the Constitution 
provides that `The President, [Vice President] and All Civil Officers of 
the United States shall be removed from Office on Impeachment for, and 
Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' 
. . . The last two War Presidents, President Wilson and President 

[[Page 456]]
both clearly recognized the civilian nature of the President's position 
as Commander in Chief. President Roosevelt, in his Navy Day Campaign 
speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this 
principle as follows:--`It was due to no accident and no oversight that 
the framers of our Constitution put the command of our armed forces 
under civilian authority. It is the duty of the Commander in Chief to 
appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is 
also to be noted that the Secretary of War, who is the regularly 
constituted organ of the President for the administration of the 
military establishment of the Nation, has been held by the Supreme Court 
of the United States to be merely a civilian officer, not in military 
service. (United States v. Burns, 79 U.S. 246 (1871)). On the general 
principle of civilian supremacy over the military, by virtue of the 
Constitution, it has recently been said: `The supremacy of the civil 
over the military is one of our great heritages.' Duncan v. Kahanamoku, 
324 U.S. 833 (1945), 14 L.W. 4205 at page 4210.''\193\

        \193\Surrogate's Court, Duchess County, New York, ruling July 
25, 1950, that the estate of Franklin D. Roosevelt was not entitled to 
tax benefits under sections 421 and 939 of the Internal Revenue Code, 
which extends certain tax benefits to persons dying in the military 
services of the United States. New York Times, July 26, 1950, p. 27, 
col. 1.
      Martial Law and Constitutional Limitations

        Two theories of martial law are reflected in decisions of the 
Supreme Court. The first, which stems from the Petition of Right, 1628, 
provides that the common law knows no such thing as martial law;\194\ 
that is to say, martial law is not established by official authority of 
any sort, but arises from the nature of things, being the law of 
paramount necessity, leaving the civil courts to be the final judges of 
necessity.\195\ By the second theory, martial law can be validly and 
constitutionally established by supreme political authority in wartime. 
In the early years of the Supreme Court, the American judiciary embraced 
the latter theory as it held in Luther v. Borden\196\ that state 
declarations of martial law were conclusive and therefore not subject to 
judicial review.\197\ In this case, the Court found that the Rhode 
Island legislature had been within its rights in resorting to the rights 
and usages of war in combating insurrection in that State. The decision 
in the Prize Cases,\198\ while

[[Page 457]]
not dealing directly with the subject of martial law, gave national 
scope to the same general principle in 1863.

        \194\C. Fairman, The Law of Martial Rule (Chicago: 1930), 20-22; 
A. Dicey, Introduction to the Study of the Law of the Constitution (New 
York: 5th ed. 1923), 283, 290.
        \195\Id., 539-544.
        \196\7 How. (48 U.S.) 1 (1849). See also Martin v. Mott, 12 
Wheat. (25 U.S.) 19, 32-33 (1827).
        \197\7 How. (48 U.S.), 45.
        \198\2 Bl. (67 U.S.) 635 (1863).

        The Civil War being safely over, however, a divided Court, in 
the elaborately argued Milligan case,\199\ reverting to the older 
doctrine, pronounced void President Lincoln's action, following his 
suspension of the writ of habeas corpus in September, 1863, in ordering 
the trial by military commission of persons held in custody as ``spies'' 
and ``abettors of the enemy.'' The salient passage of the Court's 
opinion bearing on this point is the following: ``If, in foreign 
invasion or civil war, the courts are actually closed, and it is 
impossible to administer criminal justice according to law, then, on the 
theatre of active military operations, where war really prevails, there 
is a necessity to furnish a substitute for the civil authority, thus 
overthrown, to preserve the safety of the army and society; and as no 
power is left but the military, it is allowed to govern by martial rule 
until the laws can have their free course. As necessity creates the 
rule, so it limits its duration; for, if this government is continued 
after the courts are reinstated, it is a gross usurpation of power. 
Martial rule can never exist where the courts are open, and in proper 
and unobstructed exercise of their jurisdiction. It is also confined to 
the locality of actual war.''\200\ Four Justices, speaking by Chief 
Justice Chase, while holding Milligan's trial to have been void because 
violative of the Act of March 3, 1863, governing the custody and trial 
of persons who had been deprived of the habeas corpus privilege, 
declared their belief that Congress could have authorized Milligan's 
trial. Said the Chief Justice: ``Congress has the power not only to 
raise and support and govern armies but to declare war. It has, 
therefore, the power to provide by law for carrying on war. This power 
necessarily extends to all legislation essential to the prosecution of 
war with vigor and success, except such as interferes with the command 
of the forces and the conduct of campaigns. That power and duty belong 
to the President and Commander-in-Chief. Both these powers are derived 
from the Constitution, but neither is defined by that instrument. Their 
extent must be determined by their nature, and by the principles of our 

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

        ``. . . We by no means assert that Congress can establish and 
apply the laws of war where no war has been declared or exists.

        ``Where peace exists the laws of peace must prevail. What we do 
maintain is, that when the nation is involved in war, and some portions 
of the country are invaded, and all are exposed to inva

[[Page 458]]
sion, it is within the power of Congress to determine in what States or 
districts such great and imminent public danger exists as justifies the 
authorization of military tribunals for the trial of crimes and offenses 
against the discipline or security of the army or against the public 
safety.''\201\ In short, only Congress can authorize the substitution of 
military tribunals for civil tribunals for the trial of offenses; and 
Congress can do so only in wartime.

        \201\Id., 139-140. In Ex parte Vallandigham, 1 Wall. (68 U.S.) 
243 (1864), the Court had held while war was still flagrant that it had 
no power to review by certiorari the proceedings of a military 
commission ordered by a general officer of the Army, commanding a 
military department.

        At the turn of the century, however, the Court appears to have 
retreated from its stand in Milligan insofar as it held in Moyer v. 
Peabody\202\ that ``the Governor's declaration that a state of 
insurrection existed is conclusive of that fact. . . . The plaintiff's 
position is that he has been deprived of his liberty without due process 
of law. But it is familiar that what is due process of law depends on 
circumstances. . . . So long as such arrests are made in good faith and 
in honest belief that they are needed in order to head the insurrection 
off, the Governor is the final judge and cannot be subjected to an 
action after he is out of office on the ground that he had not 
reasonable ground for his belief.''\203\ The ``good faith'' test of 
Moyer, however, was superseded by the ``direct relation'' test of 
Sterling v. Constantin,\204\ where the Court made it very clear that 
``[i]t does not follow . . . that every sort of action the Governor may 
take, no matter how justified by the exigency or subversive of private 
right and the jurisdiction of the courts, otherwise available, is 
conclusively supported by mere executive fiat. . . . What are the 
allowable limits of military discretion, and whether or not they have 
been overstepped in a particular case, are judicial questions.''\205\

        \202\212 U.S. 78 (1909).
        \203\Id., 83-85.
        \204\287 U.S. 378 (1932). ``The nature of the power also 
necessarily implies that there is a permitted range of honest judgment 
as to the measures to be taken in meeting force with force, in 
suppressing violence and restoring order, for without such liberty to 
make immediate decision, the power itself would be useless. Such 
measures, conceived in good faith, in the face of the emergency and 
directly related to the quelling of the disorder or the prevention of 
its continuance, fall within the discretion of the Executive in the 
exercise of his authority to maintain peace'' Id., 399-400.
        \205\Id., 400-401. This holding has been ignored by States on 
numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 
1054 (1935); Hearon v. Calus, 178 S.C. 381, 183 S.E. 13 (1935); and 
Joyner v. Browning, 30 F. Supp. 512 (D.C.W.D. Tenn. 1939).

        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

[[Page 459]]
commanding General of the Army all his own powers as governor and also 
``all of the powers normally exercised by the judicial officers . . . of 
this territory . . . during the present emergency and until the danger 
of invasion is removed.'' Two days later the Governor's action was 
approved by President Roosevelt. The regime which the proclamation set 
up continued with certain abatements until October 24, 1944.

        By section 67 of the Organic Act of April 30, 1900,\206\ the 
Territorial Governor was authorized ``in case of rebellion or invasion, 
or imminent danger thereof, when the public safety requires it, [to] 
suspend the privilege of the writ of habeas corpus, or place the 
Territory, or any part thereof, under martial law until communication 
can be had with the President and his decision thereon made known.'' By 
section 5 of the Organic Act, ``the Constitution . . . shall have the 
same force and effect within the said Territory as elsewhere in the 
United States.'' In a brace of cases which reached it in February 1945, 
but which it contrived to postpone deciding till February 1946,\207\ the 
Court, speaking by Justice Black, held that the term ``martial law'' as 
employed in the Organic Act, ``while intended to authorize the military 
to act vigorously for the maintenance of an orderly civil government and 
for the defense of the Islands against actual or threatened rebellion or 
invasion, was not intended to authorize the supplanting of courts by 
military tribunals.''\208\

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

        The Court relied on the majority opinion in Ex parte Milligan. 
Chief Justice Stone concurred in the result. ``I assume also,'' he said, 
``that there could be circumstances in which the public safety requires, 
and the Constitution permits, substitution of trials by military 
tribunals for trials in the civil courts,''\209\ but added that the 
military authorities themselves had failed to show justifying facts in 
this instance. Justice Burton, speaking for himself and Justice 
Frankfurter, dissented. He stressed the importance of Hawaii as a 
military outpost and its constant exposure to the danger of fresh 
invasion. He warned that ``courts must guard themselves with special 
care against judging past military action too closely by the 
inapplicable standards of judicial, or even military, hindsight.''\210\

        \209\Id., 336.
        \210\Id., 343.

        Articles of War: The Nazi Saboteurs.--The saboteurs were eight 
youths, seven Germans and one an American, who, following

[[Page 460]]
a course of training in sabotage in Berlin, were brought to this country 
in June 1942 aboard two German submarines and put ashore, one group on 
the Florida coast, the other on Long Island, with the idea that they 
would proceed forthwith to practice their art on American factories, 
military equipment, and installations. Making their way inland, the 
saboteurs were soon picked up by the FBI, some in New York, others in 
Chicago, and turned over to the Provost Marshal of the District of 
Columbia. On July 2, the President appointed a military commission to 
try them for violation of the laws of war, to wit: for not wearing fixed 
emblems to indicate their combatant status. In the midst of the trial, 
the accused petitioned the Supreme Court and the United States District 
Court for the District of Columbia for leave to bring habeas corpus 
proceedings. Their argument embraced the contentions: (1) that the 
offense charged against them was not known to the laws of the United 
States; (2) that it was not one arising in the land and naval forces; 
and (3) that the tribunal trying them had not been constituted in 
accordance with the requirements of the Articles of War.

        The first argument the Court met as follows: The act of Congress 
in providing for the trial before military tribunals of offenses against 
the law of war is sufficiently definite, although Congress has not 
undertaken to codify or mark the precise boundaries of the law of war, 
or to enumerate or define by statute all the acts which that law 
condemns. ``. . . [T]hose who during time of war pass surreptitiously 
from enemy territory into . . . [that of the United States], discarding 
their uniforms upon entry, for the commission of hostile acts involving 
destruction of life or property, have the status of unlawful combatants 
punishable as such by military commission.''\211\ The second argument it 
disposed of by showing that petitioners' case was of a kind that was 
never deemed to be within the terms of the Fifth and Sixth Amendments, 
citing in confirmation of this position the trial of Major Andre.\212\ 
The third contention the Court overruled by declining to draw the line 
between the powers of Congress and the President in the premises,\213\ 
thereby, in effect, attributing to the latter the right to amend the 
Articles of War in a case of the kind before the Court ad libitum.

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

        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

[[Page 461]]
of that operation. Punishment of the saboteurs was therefore within the 
President's purely martial powers as Commander-in-Chief. Moreover, seven 
of the petitioners were enemy aliens, and so, strictly speaking, without 
constitutional status. Even had they been civilians properly domiciled 
in the United States at the outbreak of the war they would have been 
subject under the statutes to restraint and other disciplinary action by 
the President without appeals to the courts.

        Articles of War: World War II Crimes.--As a matter of fact, in 
General Yamashita's case,\214\ which was brought after the termination 
of hostilities for alleged ``war crimes,'' the Court abandoned its 
restrictive conception altogether. In the words of Justice Rutledge's 
dissenting opinion in this case: ``The difference between the Court's 
view of this proceeding and my own comes down in the end to the view, on 
the one hand, that there is no law restrictive upon these proceedings 
other than whatever rules and regulations may be prescribed for their 
government by the executive authority or the military and, on the other 
hand, that the provisions of the Articles of War, of the Geneva 
Convention and the Fifth Amendment apply.''\215\ And the adherence of 
the United States to the Charter of London in August 1945, under which 
the Nazi leaders were brought to trial, is explicable by the same 
theory. These individuals were charged with the crime of instigating 
aggressive war, which at the time of its commission was not a crime 
either under international law or under the laws of the prosecuting 
governments. It must be presumed that the President is not in his 
capacity as Supreme Commander bound by the prohibition in the 
Constitution of ex post facto laws, nor does international law forbid ex 
post facto laws.\216\

        \214\In re Yamashita, 327 U.S. 1 (1946).
        \215\Id., 81.
        \216\See Gross, The Criminality of Aggressive War, 41 Am. Pol. 
Sci. Rev. 205 (1947).

        Martial Law and Domestic Disorder.--President Washington himself 
took command of state militia called into federal service to quell the 
Whiskey Rebellion, but there were not too many occasions subsequently in 
which federal troops or state militia called into federal service were 
required.\217\ Since World War II, however, the President, by virtue of 
his own powers and the authority vested

[[Page 462]]
in him by Congress,\218\ has utilized federal troops on nine occasions, 
five of them involving resistance to desegregation decrees in the 
South.\219\ In 1957, Governor Faubus employed the Arkansas National 
Guard to resist court-ordered desegregation in Little Rock, and 
President Eisenhower dispatched federal soldiers and brought the Guard 
under federal authority.\220\ In 1962, President Kennedy dispatched 
federal troops to Oxford, Mississippi, when upon the admission of an 
African American student to the University of Mississippi rioting broke 
out, with which federal marshals originally assigned could not 
cope.\221\ In June and September of 1964, President Johnson sent troops 
into Alabama to enforce court decrees opening schools to blacks.\222\ 
And in 1965, the President used federal troops and federalized local 
Guardsmen to protect participants in a civil rights march.\223\ The 
President justified his action on the ground that there was a 
substantial likelihood of domestic violence because state authorities 
were refusing the marchers protection.\224\

        \217\United States Adjutant-General, Federal Aid in Domestic 
Disturbances 1787-1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903); 
Pollitt, Presidential Use of Troops to Enforce Federal Laws: A Brief 
History, 36 N.C. L. Rev. 117 (1958). United States Marshals were also 
used on approximately 30 occasions. United States Commission on Civil 
Rights, Law Enforcement--A Report on Equal Protection in the South 
(Washington: 1965), 155-159.
        \218\10 U.S.C. Sec. Sec. 331-334, 3500, 8500, deriving from laws 
of 1795, 1 Stat. 424 1861, 12 Stat. 281, and 1871 17 Stat. 14.
        \219\The other instances were in domestic disturbances at the 
request of state Governors.
        \220\Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 
Fed. Reg. 7628. See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. 
Aaron, 358 U.S. 1 (1958); Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark. 
1959), affd. sub nom. Faubus v. Aaron, 361 U.S. 197 (1959); Faubus v. 
United States, 254 F.2d 797 (8th Cir. 1958), cert. den. 358 U.S. 829 
        \221\Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 
Fed. Reg. 9693 (1962). See United States v. Barnett, 346 F.2d 99 (5th 
Cir. 1965).
        \222\Proc. 3542, 28 Fed. Reg. 5707 (1963); E.O. 11111, 28 Fed. 
Reg. 5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Fed. 
Reg. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963).
        \223\Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 
Fed. Reg. 2743 (1965). See Williams v. Wallace, 240 F.Supp. 100 (M.D. 
Ala. 1965).

                          PRESIDENTIAL ADVISERS

      The Cabinet

        The above provisions are the meager residue from a persistent 
effort in the Federal Convention to impose a council on the 
President.\225\ The idea ultimately failed, partly because of the 
diversity of ideas concerning the council's make-up. One member wished 
it to consist of ``members of the two houses,'' another wished it to 
comprise two representatives from each of three sections, ``with a 
rotation and duration of office similar to those of the Senate.'' The 
proposal which had the strongest backing was that it should con

[[Page 463]]
sist of the head of departments and the Chief Justice of the Supreme 
Court, who should preside when the President was absent. Of this 
proposal the only part to survive was the above cited provision. The 
consultative relation here contemplated is an entirely one-sided affair, 
is to be conducted with each principal officer separately and in 
writing, and is to relate only to the duties of their respective 
offices.\226\ The Cabinet, as we know it today, that is to say, the 
Cabinet meeting, was brought about solely on the initiative of the first 
President,\227\ and may be dispensed with on presidential initiative at 
any time, being totally unknown to the Constitution. Several Presidents 
have in fact reduced the Cabinet meeting to little more than a ceremony 
with social trimmings.\228\

        \225\1 M. Farrand, op. cit., n.4, 70, 97, 110; 2 id., 285, 328, 
335-337, 367, 537-542. Debate on the issue in the Convention is reviewed 
in C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), 
82, 83, 84, 85, 109, 126.
        \226\E. Corwin, op. cit., n.44, 82.
        \227\L. White, The Federalists--A Study in Administrative 
History (New York: 1948), ch. 4.
        \228\E. Corwin, op. cit., n.44, 19, 61, 79-85, 211, 295-299, 
312, 320-323, 490-493.

                          PARDONS AND REPRIEVES

      The Legal Nature of a Pardon

        In the first case to be decided concerning the pardoning power, 
Chief Justice Marshall, speaking for the Court, said: ``As this power 
had been exercised from time immemorial by the executive of that nation 
whose language is our language, and to whose judicial institution ours 
bear a close resemblance; we adopt their principles respecting the 
operation and effect of a pardon, and look into their books for the 
rules prescribing the manner in which it is to be used by the person who 
would avail himself of it. A pardon is an act of grace, proceeding from 
the power entrusted with the execution of the laws, which exempts the 
individual, on whom it is bestowed, from the punishment the law inflicts 
for a crime he has committed. It is the private, though official act of 
the executive magistrate, delivered to the individual for whose benefit 
it is intended, and not communicated officially to the Court. . . . A 
pardon is a deed, to the validity of which delivery is essential, and 
delivery is not complete without acceptance. It may then be rejected by 
the person to whom it is tendered; and if it be rejected, we have 
discovered no power in a court to force it on him.'' Marshall continued 
to hold that to be noticed judicially this deed must be pleaded, like 
any private instrument.\229\

        \229\United States v. Wilson, 7 Pet. (32 U.S.) 150, 160-161 

        In the case of Burdick v. United States,\230\ Marshall's 
doctrine was put to a test that seems to have overtaxed it, perhaps 

[[Page 464]]
Burdick, having declined to testify before a federal grand jury on the 
ground that his testimony would tend to incriminate him, was proffered 
by President Wilson ``a full and unconditional pardon for all offenses 
against the United States,'' which he might have committed or 
participated in in connection with the matter he had been questioned 
about. Burdick, nevertheless, refused to accept the pardon and persisted 
in his contumacy with the unanimous support of the Supreme Court. ``The 
grace of a pardon,'' remarked Justice McKenna sententiously, ``may be 
only a pretense . . . involving consequences of even greater disgrace 
than those from which it purports to relieve. Circumstances may be made 
to bring innocence under the penalties of the law. If so brought, escape 
by confession of guilt implied in the acceptance of a pardon may be 
rejected. . . .''\231\ Nor did the Court give any attention to the fact 
that the President had accompanied his proffer to Burdick with a 
proclamation, although a similar procedure had been held to bring 
President Johnson's amnesties to the Court's notice.\232\ In 1927, 
however, in sustaining the right of the President to commute a sentence 
of death to one of life imprisonment, against the will of the prisoner, 
the Court abandoned this view. ``A pardon in our days,'' it said, ``is 
not a private act of grace from an individual happening to possess 
power. It is a part of the constitutional scheme. When granted it is the 
determination of the ultimate authority that the public welfare will be 
better served by inflicting less than what the judgment fixed.''\233\ 
Whether these words sound the death knell of the acceptance doctrine is 
perhaps doubtful.\234\ They seem clearly to indicate that by 
substituting a commutation order for a deed of pardon, a President can 
always have his way in such matters, provided the substituted penalty is 
authorized by law and does not in common understanding exceed the 
original penalty.\235\

        \230\236 U.S. 79, 86 (1915).
        \231\Id., 90-91.
        \232\Armstrong v. United States, 13 Wall. (80 U.S.), 154, 156 
(1872). In Brown v. Walker, 161 U.S. 591 (1896), the Court had said: 
``It is almost a necessary corollary of the above propositions that, if 
the witness has already received a pardon, he cannot longer set up his 
privilege, since he stands with respect to such offence as if it had 
never been committed.'' Id., 599, citing British cases.
        \233\Biddle v. Perovich, 274 U.S. 480, 486 (1927).
        \234\Cf. W. Humbert, The Pardoning Power of the President 
(Washington: 1941), 73.
        \235\Biddle v. Perovich, 274 U.S. 480, 486 (1927). In Schick v. 
Reed, 419 U.S. 256 (1976), the Court upheld the presidential commutation 
of a death sentence to imprisonment for life with no possibility of 
parole, the foreclosure of parole being contrary to the scheme of the 
Code of Military Justice. ``The conclusion is inescapable that the 
pardoning power was intended to include the power to commute sentences 
on conditions which do not in themselves offend the Constitution, but 
which are not specifically provided for by statute.'' Id., 264.


[[Page 465]]
      Scope of the Power

        The power embraces all ``offences against the United States,'' 
except cases of impeachment, and includes the power to remit fines, 
penalties, and forfeitures, except as to money covered into the Treasury 
or paid an informer,\236\ the power to pardon absolutely or 
conditionally, and the power to commute sentences, which, as seen above, 
is effective without the convict's consent.\237\ It has been held, 
moreover, in face of earlier English practice, that indefinite 
suspension of sentence by a court of the United States is an invasion of 
the presidential prerogative, amounting as it does to a condonation of 
the offense.\238\ It was early assumed that the power included the power 
to pardon specified classes or communities wholesale, in short, the 
power to amnesty, which is usually exercised by proclamation. General 
amnesties were issued by Washington in 1795, by Adams in 1800, by 
Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, 
and by the first Roosevelt--to Aguinaldo's followers--in 1902.\239\ Not, 
however, till after the Civil War was the point adjudicated, when it was 
decided in favor of presidential prerogative.\240\

        \236\23 Ops. Atty. Gen. 360, 363 (1901); Illinois Central 
Railroad v. Bosworth, 133 U.S. 92 (1890).
        \237\Ex parte William Wells, 18 How. (59 U.S.) 307 (1856). For 
the contrary view, see some early opinions of the Attorney General, 1 
Ops. Atty. Gen. 341 (1820); 2 Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. 
Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458 (1845); United States v. 
Wilson, 7 Pet. (32 U.S.) 150, 161 (1833).
        \238\Ex parte United States, 242 U.S. 27 (1916). Amendment of 
sentence, however, within the same term of court, by shortening the term 
of imprisonment, although defendant had already been committed, is a 
judicial act and no infringement of the pardoning power. United States 
v. Benz, 282 U.S. 304 (1931).
        \239\See 1 J. Richardson, op. cit., n.42, 173, 293; 2 id., 543; 
7 id., 3414, 3508; 8 id., 3853; 14 id., 6690.
        \240\United States v. Klein, 13 Wall. (80 U.S.) 128, 147 (1872). 
See also United States v. Padelford, 9 Wall. (76 U.S.) 531 (1870).

        Offenses Against the United States; Contempt of Court.--In the 
first place, such offenses are not offenses against the United States. 
In the second place, they are completed offenses.\241\ The President 
cannot pardon by anticipation, otherwise he would be invested with the 
power to dispense with the laws, his claim to which was the principal 
cause of James II's forced abdication.\242\ Lastly, the term has been 
held to include criminal contempts of court.

[[Page 466]]
Such was the holding in Ex parte Grossman,\243\ where Chief Justice 
Taft, speaking for the Court, resorted once more to English conceptions 
as being authoritative in construing this clause of the Constitution. 
Said he: ``The King of England before our Revolution, in the exercise of 
his prerogative, had always exercised the power to pardon contempts of 
court, just as he did ordinary crimes and misdemeanors and as he has 
done to the present day. In the mind of a common law lawyer of the 
eighteenth century the word pardon included within its scope the ending 
by the King's grace of the punishment of such derelictions, whether it 
was imposed by the court without a jury or upon indictment, for both 
forms of trial for contempts were had. [Citing cases.] These cases also 
show that, long before our Constitution, a distinction had been 
recognized at common law between the effect of the King's pardon to wipe 
out the effect of a sentence for contempt insofar as it had been imposed 
to punish the contemnor for violating the dignity of the court and the 
King, in the public interest, and its inefficacy to halt or interfere 
with the remedial part of the court's order necessary to secure the 
rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins 
Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, 
nowadays referred to as the difference between civil and criminal 
contempts, is still maintained in English law.''\244\ Nor was any new or 
special danger to be apprehended from this view of the pardoning power. 
``If,'' said the Chief Justice, ``we could conjure up in our minds a 
President willing to paralyze courts by pardoning all criminal 
contempts, why not a President ordering a general jail delivery?'' 
Indeed, he queried further, in view of the peculiarities of procedure in 
contempt cases, ``may it not be fairly said that in order to avoid 
possible mistake, undue prejudice or needless severity, the chance of 
pardon should exist at least as much in favor of a person convicted by a 
judge without a jury as in favor of one convicted in a jury 

        \241\Ex parte Garland, 4 Wall. (71 U.S.) 333, 380 (1867).
        \242\F. Maitland, Constitutional History of England (London: 
1920), 302-306; 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may 
not be in anticipation of the commission of the offense. A pardon may 
precede the indictment or other beginning of the criminal proceeding, Ex 
parte Garland, 4 Wall. (71 U.S.) 333, 380 (1867), as indeed President 
Ford's pardon of former President Nixon preceded institution of any 
action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon 
and Related Matters, Hearings before the House Judiciary Subcommittee on 
Criminal Justice, 93d Congress 2d sess. (1974).
        \243\267 U.S. 87 (1925).
        \244\Id., 110-111.
        \245\Id., 121, 122.

        Effects of a Pardon: Ex parte Garland.--The great leading case 
is Ex parte Garland,\246\ which was decided shortly after the Civil War. 
By an act passed in 1865, Congress had prescribed that before any person 
should be permitted to practice in a federal court he must take oath 
asserting that he had never voluntarily borne arms against the United 
States, had never given aid or comfort to enemies of the United States, 
and so on. Garland, who had been a Confederate sympathizer and so was 
unable to take the oath, had

[[Page 467]]
however received from President Johnson the same year ``a full pardon 
`for all offences by him committed, arising from participation, direct 
or implied, in the Rebellion,' . . .'' The question before the Court was 
whether, armed with this pardon, Garland was entitled to practice in the 
federal courts despite the act of Congress just mentioned. Said Justice 
Field for a divided Court: ``The inquiry arises as to the effect and 
operation of a pardon, and on this point all the authorities concur. A 
pardon reaches both the punishment prescribed for the offence and the 
guilt of the offender; and when the pardon is full, it releases the 
punishment and blots out of existence the guilt, so that in the eye of 
the law the offender is as innocent as if he had never committed the 
offence. If granted before conviction, it prevents any of the penalties 
and disabilities consequent upon conviction from attaching [thereto]; if 
granted after conviction, it removes the penalties and disabilities, and 
restores him to all his civil rights; it makes him, as it were, a new 
man, and gives him a new credit and capacity.''\247\

        \246\4 Wall. (71 U.S.) 333, 381 (1867).
        \247\Id., 380.

        Justice Miller, speaking for the minority, protested that the 
act of Congress involved was not penal in character, but merely laid 
down an appropriate test of fitness to practice law. ``The man who, by 
counterfeiting, by theft, by murder, or by treason, is rendered unfit to 
exercise the functions of an attorney or counsellor at law, may be saved 
by the executive pardon from the penitentiary or the gallows, but he is 
not thereby restored to the qualifications which are essential to 
admission to the bar.''\248\ Justice Field's language must today be 
regarded as much too sweeping in light of a decision rendered in 1914 in 
the case of Carlesi v. New York.\249\ Carlesi had been convicted several 
years before of committing a federal offense. In the instant case, the 
prisoner was being tried for a subsequent offense committed in New York. 
He was convicted as a second offender, although the President had 
pardoned him for the earlier federal offense. In other words, the fact 
of prior conviction by a federal court was considered in determining the 
punishment for a subsequent state offense. This conviction and sentence 
were upheld by the Supreme Court. While this case involved offenses 
against different sovereignties, the Court declared by way of dictum 
that its decision ``must not be understood as in the slightest degree 
intimating that a pardon would operate to limit the power of the United 
States in punishing crimes against its authority to provide for taking 
into consideration past offenses committed by the accused as a

[[Page 468]]
circumstance of aggravation even although for such past offenses there 
had been a pardon granted.''\250\

        \248\Id., 396-397.
        \249\233 U.S. 51 (1914).
        \250\Id., 59.

        Limits to the Efficacy of a Pardon.--But Justice Field's 
latitudinarian view of the effect of a pardon undoubtedly still applies 
ordinarily where the pardon is issued before conviction. He is also 
correct in saying that a full pardon restores a convict to his ``civil 
rights,'' and this is so even though simple completion of the convict's 
sentence would not have had that effect. One such right is the right to 
testify in court, and in Boyd v. United States the Court held that the 
disability to testify being a consequence, according to principles of 
the common law, of the judgment of conviction, the pardon obliterated 
that effect.\251\ But a pardon cannot ``make amends for the past. It 
affords no relief for what has been suffered by the offender in his 
person by imprisonment, forced labor, or otherwise; it does not give 
compensation for what has been done or suffered, nor does it impose upon 
the government any obligation to give it. The offence being established 
by judicial proceedings, that which has been done or suffered while they 
were in force is presumed to have been rightfully done and justly 
suffered, and no satisfaction for it can be required. Neither does the 
pardon affect any rights which have vested in others directly by the 
execution of the judgment for the offence, or which have been acquired 
by others whilst that judgment was in force. If, for example, by the 
judgment a sale of the offender's property has been had, the purchaser 
will hold the property notwithstanding the subsequent pardon. And if the 
proceeds of the sale have been paid to a party to whom the law has 
assigned them, they cannot be subsequently reached and recovered by the 
offender. The rights of the parties have become vested, and are as 
complete as if they were acquired in any other legal way. So, also, if 
the proceeds have been paid into the treasury, the right to them has so 
far become vested in the United States that they can only be secured to 
the former owner of the property through an act of Congress. Moneys once 
in the treasury can only be withdrawn by an appropriation by law.''\252\

        \251\142 U.S. 450 (1892).
        \252\Knote v. United States, 95 U.S. 149, 153-154 (1877).
      Congress and Amnesty

        Congress cannot limit the effects of a presidential amnesty. 
Thus the act of July 12, 1870, making proof of loyalty necessary to 
recover property abandoned and sold by the Government during the Civil 
War, notwithstanding any executive proclamation, pardon, amnesty, or 
other act of condonation or oblivion, was pro

[[Page 469]]
nounced void. Said Chief Justice Chase for the majority: ``[T]he 
legislature cannot change the effect of such a pardon any more than the 
executive can change a law. Yet this is attempted by the provision under 
consideration. The Court is required to receive special pardons as 
evidence of guilt and to treat them as null and void. It is required to 
disregard pardons granted by proclamation on condition, though the 
condition has been fulfilled, and to deny them their legal effect. This 
certainly impairs the executive authority and directs the Court to be 
instrumental to that end.''\253\ On the other hand, Congress itself, 
under the necessary and proper clause, may enact amnesty laws remitting 
penalties incurred under the national statutes.\254\

        \253\United States v. Klein, 13 Wall. (80 U.S.) 128, 143, 148 
        \254\The Laura, 114 U.S. 411 (1885).

                               ARTICLE II

                          EXECUTIVE DEPARTMENT


  Clause 2. He shall have Power, by and with the Advice and Consent of 
the Senate, to make Treaties, provided two thirds of the Senators 
present concur; and he shall nominate, and by and with the Advice and 
Consent of the Senate, shall appoint Ambassadors, other public Ministers 
and Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided for, 
and which shall be established by Law: but the Congress may by Law vest 
the Appointment of such inferior Officers, as they think proper, in the 
President alone, in the Court of Law, or in the Heads of Departments.

                         THE TREATY-MAKING POWER

      President and Senate

        The plan which the Committee of Detail reported to the Federal 
Convention on August 6, 1787 provided that ``the Senate of the United 
States shall have power to make treaties, and to appoint Ambassadors, 
and Judges of the Supreme Court.''\255\ Not until September 7, ten days 
before the Convention's final adjournment, was the President made a 
participant in these powers.\256\ The constitutional clause evidently 
assumes that the President and Senate will be associated throughout the 
entire process of making a treaty, al

[[Page 470]]
though Jay, writing in The Federalist, foresaw that the initiative must 
often be seized by the President without benefit of senatorial 
counsel.\257\ Yet, so late as 1818, Rufus King, Senator from New York, 
who had been a member of the Convention, declared on the floor of the 
Senate: ``In these concerns the Senate are the Constitutional and the 
only responsible counsellors of the President. And in this capacity the 
Senate may, and ought to, look into and watch over every branch of the 
foreign affairs of the nation; they may, therefore, at any time call for 
full and exact information respecting the foreign affairs, and express 
their opinion and advice to the President respecting the same, when, and 
under whatever other circumstances, they may think such advice 

        \255\2 M. Farrand, op. cit., n.4, 183.
        \256\Id., 538-539.
        \257\No. 64 (J. Cooke ed., 1961), 435-436.
        \258\31 Annals of Congress 106 (1818).

        Negotiation, a Presidential Monopoly.--Actually, the negotiation 
of treaties had long since been taken over by the President; the 
Senate's role in relation to treaties is today essentially legislative 
in character.\259\ ``He alone negotiates. Into the field of negotiation, 
the Senate cannot intrude; and Congress itself is powerless to invade 
it,'' declared Justice Sutherland for the Court in 1936.\260\ The Senate 
must, moreover, content itself with such information as the President 
chooses to furnish it.\261\ In performing the function that remains to 
it, however, it has several options. It may consent unconditionally to a 
proposed treaty, it may refuse its consent, or it may stipulate 
conditions in the form of amendments to the treaty, of reservations to 
the act of ratification, or of statements of understanding or other 
declarations, the formal difference between the first two and the third 
being that amendments and reservations, if accepted by the President 
must be communicated to the other parties to the treaty, and, at least 
with respect to amendments and often reservations as well, require 
reopening negotiations and changes, whereas the other actions may have 
more problematic results.\262\ The act of ratification for the United 
States is the President's act, but it may not be forthcoming unless the 
Senate has consented to it by the required two-thirds of the Senators

[[Page 471]]
present, which signifies two-thirds of a quorum, otherwise the consent 
rendered would not be that of the Senate as organized under the 
Constitution to do business.\263\ Conversely, the President may, if 
dissatisfied with amendments which have been affixed by the Senate to a 
proposed treaty or with the conditions stipulated by it to ratification, 
decide to abandon the negotiation, which he is entirely free to do.\264\

        \259\Washington sought to use the Senate as a council, but the 
effort proved futile, principally because the Senate balked. For the 
details see E. Corwin, op. cit., n.44, 207-217.
        \260\United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
319 (1936).
        \261\E. Corwin, op. cit., n.44, 428-429.
        \262\Treaties and Other International Agreements: The Role of 
the United States Senate, A Study Prepared for the Senate Committee on 
Foreign Relations by the Congressional Research Service, 103d Cong., 1st 
sess. (Comm. Print) (1993), 96-98 (hereinafter CRS Study); see also 
American Law Institute, Restatement (Third) of the Law, The Foreign 
Relations Law of the United States (1987), Sec. 314 (hereinafter 
Restatement, Foreign Relations). See Fourteen Diamond Rings v. United 
States, 183 U.S. 176, 183 (1901).
        \263\Cf. Art. I, Sec. 5, cl. 1; see also Missouri Pac. Ry. Co. 
v. Kansas, 248 U.S. 276, 283-284 (1919).
        \264\For instance, see S. Crandall, Treaties, Their Making and 
Enforcement (Washington: 2d ed. 1916), 53; CRS Study, op. cit., n.264, 
      Treaties as Law of the Land

        Treaty commitments of the United States are of two kinds. In the 
language of Chief Justice Marshall in 1829: ``A treaty is, in its 
nature, a contract between two nations, not a legislative act. It does 
not generally effect, of itself, the object to be accomplished; 
especially, so far as its operation is intraterritorial; but is carried 
into execution by the sovereign power of the respective parties to the 

        ``In the United States, a different principle is established. 
Our constitution declares a treaty to be the law of the land. It is, 
consequently, to be regarded in courts of justice as equivalent to an 
act of the legislature, whenever it operates of itself, without the aid 
of any legislative provision. But when the terms of the stipulation 
import a contract--when either of the parties engages to perform a 
particular act, the treaty addresses itself to the political, not the 
judicial department; and the legislature must execute the contract, 
before it can become a rule for the Court.''\265\ To the same effect, 
but more accurate, is Justice Miller's language for the Court a half 
century later, in the Head Money Cases: ``A treaty is primarily a 
compact between independent nations. It depends for the enforcement of 
its provisions on the interest and the honor of the governments which 
are parties of it. . . . But a treaty may also contain provisions which 
confer certain rights upon the citizens or subjects of one of the 
nations residing in the territorial limits of the other, which partake 
of the nature of municipal law, and which are capable of enforcement as 
between private parties in the courts of the country.''\266\

        \265\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314 (1829). See 
The Federalist, No. 75 (J. Cooke ed., 1961), 504-505.
        \266\112 U.S. 580, 598 (1884). For treaty provisions operative 
as ``law of the land'' (self-executing), see S. Crandall, op. cit., 
n.264, 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. 
For treaty provisions of an ``executory'' character, see id., 162-163, 
232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, op. cit., 
n.262, 41-68; Restatement, Foreign Relations, op. cit., n.262, 
Sec. Sec. 111-115.


[[Page 472]]

        Origin of the Conception.--How did this distinctive feature of 
the Constitution come about, by virtue of which the treaty-making 
authority is enabled to stamp upon its promises the quality of municipal 
law, thereby rendering them enforceable by the courts without further 
action? The short answer is that Article VI, paragraph 2, makes treaties 
the supreme law of the land on the same footing with acts of 
Congress.\267\ The clause was a direct result of one of the major 
weaknesses of the Articles of Confederation. Although the Articles 
entrusted the treaty-making power to Congress, fulfillment of Congress' 
promises was dependent on the state legislatures.\268\ Particularly with 
regard to provisions of the Treaty of Peace of 1783,\269\ in which 
Congress stipulated to protect the property rights of British creditors 
of American citizens and of the former Loyalists,\270\ the promises were 
not only ignored but were deliberately flouted by many 
legislatures.\271\ Upon repeated British protests, John Jay, the 
Secretary for Foreign Affairs, suggested to Congress that it request 
state legislatures to repeal all legislation repugnant to the Treaty of 
Peace and to authorize their courts to carry the treaty into 
effect.\272\ Although seven States did comply to some extent, the 
impotency of Congress to effectuate its treaty guarantees was obvious to 
the Framers who devised Article VI, paragraph 2, to take care of the 

        \267\See infra, Art. VI, parag. 2 (the supremacy clause).
        \268\S. Crandall, op. cit., n.264, ch. 3.
        \269\Id., 30-32. For the text of the Treaty, see 1 W. Malloy 
(ed.), Treaties, Conventions, International Acts, Protocols and 
Agreements Between the United States of America and Other Powers (1776-
1909), S. Doc. No. 357, 61st Congress, 2d sess. (1910), 586.
        \270\Id., 588.
        \271\R. Morris, John Jay, the Nation, and the Court (Boston: 
1967), 73-84.
        \272\S. Crandall, op. cit., n.264, 36-40.
        \273\The Convention at first leaned toward giving Congress a 
negative over state laws which were contrary to federal statutes or 
treaties, 1 M. Farrand, op. cit., n.4, 47, 54, and then adopted the 
Paterson Plan which made treaties the supreme law of the land, binding 
on state judges, and authorized the Executive to use force to compel 
observance when such treaties were resisted. Id., 245, 316, 2 id., 27-
29. In the draft reported by the Committee on Detail, the language thus 
adopted was close to the present supremacy clause; the draft omitted the 
authorization of force from the clause, id., 183, but in another clause 
the legislative branch was authorized to call out the militia to, inter 
alia, ``enforce treaties''. Id., 182. The two words were struck 
subsequently ``as being superfluous'' in view of the supremacy clause. 
Id., 389-390.

        Treaties and the States.--As it so happened, the first case in 
which the Supreme Court dealt with the question of the effect of 
treaties on state laws involved the same issue that had prompted the 
drafting of Article VI, paragraph 2. During the Revolutionary War, the 
Virginia legislature provided that the Commonwealth's paper money, which 
was depreciating rapidly, was to be legal cur

[[Page 473]]
rency for the payment of debts and to confound creditors who would not 
accept the currency provided that Virginia citizens could pay into the 
state treasury debts owed by them to subjects of Great Britain, which 
money was to be used to prosecute the war, and that the auditor would 
give the debtor a certificate of payment which would discharge the 
debtor of all future obligations to the creditor.\274\ The Virginia 
scheme directly contradicted the assurances in the peace treaty that no 
bars to collection by British creditors would be raised, and in Ware v. 
Hylton\275\ the Court struck down the state law as violative of the 
treaty that Article VI, paragraph 2, made superior. Said Justice Chase: 
``A treaty cannot be the Supreme law of the land, that is of all the 
United States, if any act of a State Legislature can stand in its way. 
If the constitution of a State . . . must give way to a treaty, and fall 
before it; can it be questioned, whether the less power, an act of the 
state legislature, must not be prostrate? It is the declared will of the 
people of the United States that every treaty made, by the authority of 
the United States shall be superior to the Constitution and laws of any 
individual State; and their will alone is to decide.''\276\

        \274\9 W. Hening, Statutes of Virginia (Richmond: 1821), 377-
        \275\3 Dall. (3 U.S.) 199 (1796).
        \276\Id., 236-237 (emphasis by Court).

        In Hopkirk v. Bell,\277\ the Court further held that this same 
treaty provision prevented the operation of a Virginia statute of 
limitation to bar collection of antecedent debts. In numerous subsequent 
cases, the Court invariably ruled that treaty provisions superseded 
inconsistent state laws governing the right of aliens to inherit real 
estate.\278\ Such a case was Hauenstein v. Lynham,\279\ in which the 
Court upheld the right of a citizen of the Swiss Republic, under the 
treaty of 1850 with that country, to recover the estate of a relative 
dying intestate in Virginia, to sell the same, and to export the 
proceeds of the sale.\280\

        \277\3 Cr. (7 U.S.) 454 (1806).
        \278\See the discussion and cases cited in Hauenstein v. Lynham, 
100 U.S. 483, 489-490 (1880).
        \279\100 U.S. 483 (1880). In Kolovrat v. Oregon, 366 U.S. 187, 
197-198 (1961), the International Monetary Fund (Bretton Woods) 
Agreement of 1945, to which the United States and Yugoslavia were 
parties, and an Agreement of 1948 between these two nations, coupled 
with continued American observance of an 1881 treaty granting reciprocal 
rights of inheritance to Yugoslavian and American nations, were held to 
preclude Oregon from denying Yugoslavian aliens their treaty rights 
because of a fear that Yugoslavian currency laws implementing such 
Agreements prevented American nationals from withdrawing the proceeds 
from the sale of property inherited in the latter country.
        \280\See also Geofroy v. Riggs, 133 U.S. 258 (1890); Sullivan v. 
Kidd, 254 U.S. 433 (1921); Nielsen v. Johnson, 279 U.S. 47 (1929); 
Kolovrat v. Oregon, 366 U.S. 187 (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. 
Co., 213 U.S. 268 (1909). The treaty in question having been amended in 
view of this decision, the question arose whether the new provision 
covered the case of death without fault or negligence in which, by the 
Pennsylvania Workmen's Compensation Act, compensation was expressly 
limited to resident parents; the Supreme Court held that it did not. 
Liberato v. Royer, 270 U.S. 535 (1926).


[[Page 474]]

        Certain more recent cases stem from California legislation, most 
of it directed against Japanese immigrants. A statute which excluded 
aliens ineligible to American citizenship from owning real estate was 
upheld in 1923 on the ground that the treaty in question did not secure 
the rights claimed.\281\ But in Oyama v. California,\282\ a majority of 
the Court indicated a strongly held opinion that this legislation 
conflicted with the equal protection clause of the Fourteenth Amendment, 
a view which has since received the endorsement of the California 
Supreme Court by a narrow majority.\283\ Meantime, California was 
informed that the rights of German nationals, under the Treaty of 
December 8, 1923, between the United States and the Reich, to whom real 
property in the United States had descended or been devised, to dispose 
of it, had survived the recent war and certain war legislation, and 
accordingly prevailed over conflicting state legislation.\284\

        \281\Terrace v. Thompson, 263 U.S. 197 (1923).
        \282\332 U.S. 633 (1948). See also Takahashi v. Fish Comm., 334 
U.S. 410 (1948), in which a California statute prohibiting the issuance 
of fishing licenses to persons ineligible to citizenship was disallowed, 
both on the basis of the Fourteenth Amendment and on the ground that the 
statute invaded a field of power reserved to the National Government, 
namely, the determination of the conditions on which aliens may be 
admitted, naturalized, and permitted to reside in the United States. For 
the latter proposition, Hines v. Davidowitz, 312 U.S. 52, 66 (1941), was 
relied upon.
        \283\This occurred in the much advertised case of Sei Fujii v. 
State, 38 Cal. 2d 718, 242 P. 2d 617 (1952). A lower California court 
had held that the legislation involved was void under the United Nations 
Charter, but the California Supreme Court was unanimous in rejecting 
this view. The Charter provisions invoked in this connection [Arts. 1, 
55 and 56], said Chief Justice Gibson, ``we are satisfied . . . were not 
intended to supersede domestic legislation.'' That is, the Charter 
provisions were not self-executing. Restatement, Foreign Relations, op. 
cit., n.262, Sec. 701, Reporters' Note 5, pp. 155-156.
        \284\Clark v. Allen, 331 U.S. 503 (1947). See also Kolovrat v. 
Oregon, 366 U.S. 187 (1961).

        Treaties and Congress.--In the Convention, a proposal to require 
the adoption of treaties through enactment of a law before they should 
be binding was rejected.\285\ But the years since have seen numerous 
controversies with regard to the duties and obligations of Congress, the 
necessity for congressional action, and the ef

[[Page 475]]
fects of statutes, in connection with the treaty power. For purposes of 
this section, the question is whether entry into and ratification of a 
treaty is sufficient in all cases to make the treaty provisions the 
``law of the land'' or whether there are some types of treaty provisions 
which only a subsequent act of Congress can put into effect? The 
language quoted above\286\ from Foster v. Neilson\287\ early established 
that not all treaties are self-executing, for as Marshall there said, a 
treaty is ``to be regarded in courts of justice as equivalent to an act 
of the legislature, whenever it operates of itself, without the aid of 
any legislative provision.''\288\

        \285\2 M. Farrand, op. cit., n.4, 392-394.
        \286\Supra, text at n.265.
        \287\2 Pet. (27 U.S.) 253, 314 (1829).
        \288\Cf. Whitney v. Robertson, 124 U.S. 190, 194 (1888): ``When 
the stipulations are not self-executing they can only be enforced 
pursuant to legislation to carry them into effect. . . . If the treaty 
contains stipulations which are self-executing that is, require no 
legislation to make them operative, to that extent they have the force 
and effect of a legislative enactment.''; S. Crandall, op. cit., n.264, 
chs. 11-15.

        Leaving aside the question when a treaty is and is not self-
executing,\289\ the issue of the necessity of congressional 
implementation and the obligation to implement has frequently roiled 
congressional debates. The matter arose initially in 1796 in connection 
with the Jay Treaty,\290\ certain provisions of which required 
appropriations to carry them into effect. In view of the third clause of 
Article I, Sec. 9, which says that ``no money shall be drawn from the 
Treasury, but in Consequence of Appropriations made by law . . .'', it 
seems to have been universally conceded that Congress must be applied to 
if the treaty provisions were to be executed.\291\ A bill was introduced 
into the House to appropriate the needed funds and its supporters, 
within and without Congress, offered the contention that inasmuch as the 
treaty was now the law of the land the legislative branch was bound to 
enact the bill without further ado; opponents led by Madison and 
Gallatin contended that the House had complete discretion whether or not 
to carry into effect treaty provisions.\292\ At the conclusion of the 
debate, the House voted not only the money but a resolution offered by 
Madison stating that it did

[[Page 476]]
not claim any agency in the treaty-making process, ``but that when a 
treaty stipulates regulations on any of the subjects submitted by the 
Constitution to the power of Congress, it must depend for its execution 
as to such stipulations on a law or laws to be passed by Congress, and 
it is the constitutional right and duty of the House of Representatives 
in all such cases to deliberate on the expediency or inexpediency of 
carrying such treaty into effect, and to determine and act thereon as in 
their judgment may be most conducive to the public good.''\293\ This 
early precedent with regard to appropriations has apparently been 
uniformly adhered to.\294\

        \289\See infra, text at nn.312-316.
        \290\8 Stat. 116 (1794).
        \291\The story is told in numerous sources. E.g., S. Crandall, 
op. cit., n.264, 165-171. For Washington's message refusing to submit 
papers relating to the treaty to the House, see J. Richardson, op. cit., 
n.42, 123.
        \292\Debate in the House ran for more than a month. It was 
excerpted from the Annals and separately published as Debates in the 
House of Representatives of the United States, During the First Session 
of the Fourth Congress upon the Constitutional Powers of the House with 
Respect to Treaties (Philadelphia: 1796). A source of much valuable 
information on the views of the Framers and those who came after them on 
the treaty power, the debates are analyzed in detail in E. Byrd, 
Treaties and Executive Agreements in the United States (The Hague: 
1960), 35-59.
        \293\5 Annals of Congress 771, 782 (1796). A resolution similar 
in language was adopted by the House in 1871. Cong. Globe, 42d Congress, 
1st sess. (1871), 835.
        \294\S. Crandall, op. cit., n.264, 171-182; 1 W. Willoughby, The 
Constitutional Law of the United States (New York: 2d ed. 1929), 549-
552; but see Restatement, Foreign Relations, op. cit., n.262, Sec. 111, 
Reporters' Note 7, p. 57. See also H. Rept. 4177, 49th Congress, 2d 
sess. (1887). Cf. De Lima v. Bidwell, 182 U.S. 1, 198 (1901).

        Similarly, with regard to treaties which modify and change 
commercial tariff arrangements, the practice has been that the House 
always insisted on and the Senate acquiesced in legislation to carry 
into effect the provisions of such treaties.\295\ The earliest 
congressional dispute came over an 1815 Convention with Great 
Britain,\296\ which provided for reciprocal reduction of duties. 
President Madison thereupon recommended to Congress such legislation as 
the convention might require for effectuation. The Senate and some 
members of the House were of the view that no implementing legislation 
was necessary because of a statute, which already permitted the 
President to reduce duties on goods of nations that did not discriminate 
against United States goods; the House majority felt otherwise and 
compromise legislation was finally enacted acceptable to both points of 
view.\297\ But subsequent cases have seen legislation enacted,\298\ the 
Senate once refused ratification of a treaty, which purported to reduce 
statutorily-determined duties,\299\ and congressional enactment of 
authority for the President to negotiate reciprocal trade agreements all 
seem to point to the necessity of some form of congressional 

        \295\S. Crandall, op. cit., n.264, 183-199.
        \296\8 Stat. 228 (1815).
        \297\3 Stat. 255 (1816). See S. Crandall, op. cit., n.264, 184-
        \298\Id., 188-195; 1 W. Willoughby, op. cit., n.294, 555-560.
        \299\S. Crandall, op. cit., n.264, 189-190.

        What other treaty provisions need congressional implementation 
is subject to argument. In a 1907 memorandum approved by the Secretary 
of State, it is said, in summary of the practice and reasoning from the 
text of the Constitution, that the limitation on the treaty power which 
necessitate legislative implementation may

[[Page 477]]
``be found in the provisions of the Constitution which expressly confide 
in Congress or in other branches of the Federal Government the exercise 
of certain of the delegated powers. . . .''\300\ The same thought has 
been expressed in Congress\301\ and by commentators.\302\ Resolution of 
the issue seems particularly one for the attention of the legislative 
and executive branches rather than for the courts.

        \300\Anderson, The Extent and Limitations of the Treaty-Making 
Power, 1 Amer. J. Int. L. 636, 641 (1907).
        \301\At the conclusion of the 1815 debate, the Senate conferees 
noted in their report that some treaties might need legislative 
implementation, which Congress was bound to provide, but did not 
indicate what in their opinion made some treaties self-executing and 
others not. 29 Annals of Congress 160 (1816). The House conferees 
observed that they thought, and that in their opinion the Senate 
conferees agreed, that legislative implementation was necessary to carry 
into effect all treaties which contained ``stipulations requiring 
appropriations, or which might bind the nation to lay taxes, to raise 
armies, to support navies, to grant subsidies, to create States, or to 
cede territory. . . .'' Id., 1019. Much the same language was included 
in a later report. H. Rept. No. 37, 40th Congress, 2d sess. (1868). 
Controversy with respect to the sufficiency of Senate ratification of 
the Panama Canal treaties to dispose of United States property therein 
to Panama was extensive. A divided Court of Appeals for the District of 
Columbia reached the question and held that Senate approval of the 
treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 
(D.C.Cir.), cert. den., 436 U. S. 907 (1978).
        \302\T. Cooley, General Principles of Constitutional Law (New 
York: 3d ed. 1898, 175; Q. Wright, The Control of American Foreign 
Relations (New York: 1922), 353-356.

        Congressional Repeal of Treaties.--It is in respect to his 
contention that, when it is asked to carry a treaty into effect, 
Congress has the constitutional right, and indeed the duty, to determine 
the matter according to its own ideas of what is expedient, that Madison 
has been most completely vindicated by developments. This is seen in the 
answer which the Court has returned to the question: What happens when a 
treaty provision and an act of Congress conflict? The answer is, that 
neither has any intrinsic superiority over the other and that therefore 
the one of later date will prevail leges posteriores priores contrarias 
abrogant. In short, the treaty commitments of the United States do not 
diminish Congress' constitutional powers. To be sure, legislative repeal 
of a treaty as law of the land may amount to a violation of it as an 
international contract in the judgment of the other party to it. In such 
case, as the Court has said: ``Its infraction becomes the subject of 
international negotiations and reclamations, so far as the injured party 
chooses to seek redress, which may in the end be enforced by actual war. 
It is obvious that with all this the judicial courts have nothing to do 
and can give no redress.''\303\

        \303\Head Money Cases, 112 U.S. 580, 598-599 (1884). The 
repealability of treaties by act of Congress was first asserted in an 
opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year 
following the doctrine was adopted judicially in a lengthy and cogently 
argued opinion of Justice Curtis, speaking for a United States circuit 
court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 
1855). See also The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871); 
United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 
(1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese 
Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 
190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721 
(1893). ``Congress by legislation, and so far as the people and 
authorities of the United States are concerned, could abrogate a treaty 
made between this country and another country which had been negotiated 
by the President and approved by the Senate.'' La Abra Silver Mining Co. 
v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 6 
Wall. (73 U.S.) 160, 165-166 (1868), wherein it is stated obiter that 
``Congress is bound to regard the public treaties, and it had no power 
. . . to nullify [Indian] titles confirmed many years before. . . .''


[[Page 478]]

        Treaties Versus Prior Acts of Congress.--The cases are numerous 
in which the Court has enforced statutory provisions which were 
recognized by it as superseding prior treaty engagements. Chief Justice 
Marshall early asserted that the converse would be true as well,\304\ 
that a treaty which is self-executing is the law of the land and 
prevails over an earlier inconsistent statute, a proposition repeated 
many times in dicta.\305\ But there is dispute whether in fact a treaty 
has ever been held to have repealed or superseded an inconsistent 
statute. Willoughby, for example, says: ``In fact, however, there have 
been few (the writer is not certain that there has been any) instances 
in which a treaty inconsistent with a prior act of Congress has been 
given full force and effect as law in this country without the assent of 
Congress. There may indeed have been cases in which, by treaty, certain 
action has been taken without reference to existing Federal laws, as, 
for example, where by treaty certain populations have been collectively 
naturalized, but such treaty action has not operated to repeal or annul 
the existing law upon the subject.''\306\

        \304\Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-315 (1829). In 
a later case, it was determined in a different situation that by its 
terms the treaty in issue, which had been assumed to be executory in the 
earlier case, was self-executing. United States v. Percheman, 7 Pet. (32 
U.S.) 51 (1833).
        \305\E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220-221 
(1902); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871); 
Johnson v. Browne, 205 U.S. 309, 320-321 (1907); Whitney v. Roberston, 
124 U.S. 190, 194 (1888).
        \306\1 W. Willoughby, op. cit., n.294, 555.

        The one instance that may be an exception\307\ is Cook v. United 
States.\308\ There, a divided Court held that a 1924 treaty with

[[Page 479]]
Great Britain, allowing the inspection of English vessels for contraband 
liquor and seizure if any was found only if such vessels were within the 
distance from the coast that could be traversed in one hour by the 
vessel suspecting of endeavoring to violate the prohibition laws, had 
superseded the authority conferred by a section of the Tariff Act of 
1922\309\ for Coast Guard officers to inspect and seize any vessel 
within four leagues--12 miles--of the coast under like circumstances. 
The difficulty with the case is that the Tariff Act provision had been 
reenacted in 1930,\310\ so that a simple application of the rule of the 
later governing should have caused a different result. It may be 
suspected that the low estate to which Prohibition had fallen and a 
desire to avoid a diplomatic controversy should the seizure at issue 
have been upheld were more than slightly influential in the Court's 

        \307\Other cases, which are cited in some sources, appear 
distinguishable. United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 
(1801), applied a treaty entered into subsequent to enactment of a 
statute abrogating all treaties then in effect between the United States 
and France, so that it is inaccurate to refer to the treaty as 
superseding a prior statute. In United States v. Forty-Three Gallons of 
Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which 
the tribe ceded certain territory, later included in a State, provided 
that a federal law restricting the sale of liquor on the reservation 
would continue in effect in the territory ceded; the Court found the 
stipulation an appropriate subject for settlement by treaty and the 
provision binding. And see Charlton v. Kelly, 229 U.S. 447 (1913).
        \308\288 U.S. 102 (1933).
        \309\42 Stat. 858, 979, Sec. 581.
        \310\46 Stat. 590, 747, Sec. 581.

        When Is a Treaty Self-Executing.--Several references have been 
made above to a distinction between treaties as self-executing and as 
merely executory. But what is it about a treaty that makes it the law of 
the land and which gives a private citizen the right to rely on it in a 
court of law? As early as 1801, the Supreme Court took notice of a 
treaty and finding it applicable to the situation before gave judgment 
for the petitioner based on it.\311\ In Foster v. Neilson,\312\ Chief 
Justice Marshall explained that a treaty is to be regarded in courts 
``as equivalent to an act of the legislature, whenever it operates of 
itself, without the aid of any legislative provision.'' It appears thus 
that the Court has had in mind two characteristics of treaties which 
keep them from being self-executing. First, ``when the terms of the 
stipulation import a contract--when either of the parties engages to 
perform a particular act, the treaty addresses itself to the political, 
not the judicial department; and the legislature must execute the 
contract, before it can become a rule for the Court.''\313\ In other 
words, the treaty itself may by its terms require implementation, as by 
an express stipulation for legislative execution.\314\

        \311\United States v. Schooner Peggy, 1 Cr. (5 U.S.) 103 (1801).
        \312\2 Pet. (27 U.S.) 253, 314-315 (1829).
        \314\Generally, the qualifications may have been inserted in 
treaties out of a belief in their constitutional necessity or because of 
some policy reason. In regard to the former, it has always apparently 
been the practice to insert in treaties affecting the revenue laws of 
the United States a proviso that they should not be deemed effective 
until the necessary laws to carry them into operation should be enacted 
by Congress. 1 W. Willoughby, op. cit., n.294, 558. Perhaps of the same 
nature was a qualification that cession of certain property in the Canal 
Zone should be dependent upon action by Congress inserted in Article V 
of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In 
regard to the latter, it may be noted that Article V of the Webster-
Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to 
Canada of land in Maine and Massachusetts was conditioned upon assent by 
the two States and payment to them of compensation. S. Crandall, op. 
cit., n.264, 222-224.


[[Page 480]]

        Second, the nature of the stipulation may require legislative 
execution. That is, with regard to the issue discussed above, whether 
the delegated powers of Congress imposes any limitation on the treaty 
power, it may be that a treaty provision will be incapable of execution 
without legislative action. As one authority says: ``Practically this 
distinction depends upon whether or not the courts and the executive are 
able to enforce the provision without enabling legislation. 
Fundamentally it depends upon whether the obligation is imposed on 
private individuals or on public authorities. . . .

        ``Treaty provisions which define the rights and obligations of 
private individuals and lay down general principles for the guidance of 
military, naval or administrative officials in relation thereto are 
usually considered self-executing. Thus treaty provisions assuring 
aliens equal civil rights with citizens, defining the limits of national 
jurisdiction, and prescribing rules of prize, war and neutrality, have 
been so considered. . . .

        ``On the other hand certain treaty obligations are addressed 
solely to public authorities, of which may be mentioned those requiring 
the payment of money, the cession of territory, the guarantee of 
territory or independence, the conclusion of subsequent treaties on 
described subjects, the participation in international organizations, 
the collection and supplying of information, and direction of postal, 
telegraphic or other services, the construction of buildings, bridges, 
lighthouses, etc.''\315\ It may well be that these two characteristics 
merge with each other at many points and the language of the Court is 
not always helpful in distinguishing them.\316\

        \315\Q. Wright, op. cit., n.302, 207-208. See also L. Henkin, 
Foreign Affairs and the Constitution (Mineola, N.Y.: 1972), 156-162.
        \316\Thus, compare Foster v. Neilson, 2 Pet. (27 U.S.) 253, 314-
315 (1829), with Cook v. United States, 288 U.S. 102, 118-119 (1933).

        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

[[Page 481]]
States, but the treaty-power can do this and has done it repeatedly and 
Congress has supplemented these treaties by appropriate 
legislation.\317\ Congress could not confer judicial power upon American 
consuls abroad to be there exercised over American citizens, but the 
treaty-power can and has, and Congress has passed legislation perfecting 
such agreements and such legislation has been upheld.\318\

        \317\Acts of March 2, 1829, 4 Stat. 359 and of February 24, 
1855, 10 Stat. 614.
        \318\See In re Ross, 140 U.S. 453 (1891), where the treaty 
provisions involved are given. The supplementary legislation, later 
reenacted at Rev. Stat. 4083-4091, was 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 

        Again, Congress of itself could not provide for the extradition 
of fugitives from justice, but the treaty-power can and has done so 
scores of times, and Congress has passed legislation carrying our 
extradition treaties into effect.\319\ And Congress could not ordinarily 
penalize private acts of violence within a State, but it can punish such 
acts if they deprive aliens of their rights under a treaty.\320\ 
Referring to such legislation, the Court has said: ``The power of 
Congress to make all laws necessary and proper for carrying into 
execution as well the powers enumerated in section 8 of Article I of the 
Constitution, as all others vested in the Government of the United 
States, or in any Department or the officers thereof, includes the power 
to enact such legislation as is appropriate to give efficacy to any 
stipulations which it is competent for the President by and with the 
advice and consent of the Senate to insert in a treaty with foreign 
power.''\321\ In a word, the treaty-power cannot purport to amend the 
Constitution by adding to the list of Congress' enumerated powers, but 
having acted, the consequence will often be that it has provided 
Congress with an opportunity to enact measures which independently of a 
treaty Congress could not pass; the only question that can be raised as 
to such measures will be

[[Page 482]]
whether they are ``necessary and proper'' measures for the carrying of 
the treaty in question into operation.

        \319\18 U.S.C. Sec. Sec. 3181-3195.
        \320\Baldwin v. Franks, 120 U.S. 678, 683 (1887).
        \321\Neely v. Henkel, 180 U.S. 109, 121 (1901). A different 
theory is offered by Justice Story in his opinion for the court in Prigg 
v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842), in the following words: 
``Treaties made between the United States and foreign powers, often 
contain special provisions, which do not execute themselves, but require 
the interposition of Congress to carry them into effect, and Congress 
has constantly, in such cases, legislated on the subject; yet, although 
the power is given to the executive, with the consent of the senate, to 
make treaties, the power is nowhere in positive terms conferred upon 
Congress to make laws to carry the stipulations of treaties into effect. 
It has been supposed to result from the duty of the national government 
to fulfill all the obligations of treaties.'' Id., 619. Story was here 
in quest of arguments to prove that Congress had power to enact a 
fugitive slave law, which he based on its power ``to carry into effect 
rights expressly given and duties expressly enjoined'' by the 
Constitution. Id., 618-619. However, the treaty-making power is neither 
a right nor a duty, but one of the powers ``vested by this Constitution 
in the Government of the United States.'' Art. I, Sec. 8, cl. 18.

        The foremost example of this interpretation is Missouri v. 
Holland.\322\ There, the United States and Great Britain had entered 
into a treaty for the protection of migratory birds,\323\ and Congress 
had enacted legislation pursuant to the treaty to effectuate it.\324\ 
The State objected that such regulation was reserved to the States by 
the Tenth Amendment and that the statute infringed on this reservation, 
pointing to lower court decisions voiding an earlier act not based on a 
treaty.\325\ Noting that treaties ``are declared the supreme law of the 
land,'' Justice Holmes for the Court said: ``If the treaty is valid 
there can be no dispute about the validity of the statute under Article 
I, Sec. 8, as a necessary and proper means to execute the powers of the 
Government.''\326\ ``It is obvious,'' he continued, ``that there may be 
matters of the sharpest exigency for the national well being that an act 
of Congress could not deal with but that a treaty followed by such an 
act could, and it is not lightly to be assumed that, in matters 
requiring national action, `a power which must belong to and somewhere 
reside in every civilized government' is not to be found.''\327\ Since 
the treaty and thus the statute dealt with a matter of national and 
international concern, the treaty was proper and the statute was one 
``necessary and proper'' to effectuate the treaty.

        \322\252 U.S. 416 (1920).
        \323\39 Stat. 1702 (1916).
        \324\40 Stat. 755 (1918).
        \325\United States v. Shauver, 214 F. 154 (E.D.Ark. 1914); 
United States v. McCullagh, 221 F. 288 (D.Kan. 1915). The Court did not 
purport to decide whether those cases were correctly decided. Missouri 
v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that 
Congress' power under the commerce clause would be deemed more than 
adequate but at that time a majority of the Court had a very restrictive 
view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 
        \326\Missouri v. Holland, 252 U.S. 416, 432 (1920).
        \327\Id., 433. The internal quotation is from Andrews v. 
Andrews, 188 U.S. 14, 33 (1903).
      Constitutional Limitations on the Treaty Power

        A question growing out of the discussion above is whether the 
treaty power is bounded by constitutional limitations. By the supremacy 
clause, both statutes and treaties ``are declared . . . to be the 
supreme law of the land, and no superior efficacy is given to either 
over the other.''\328\ As statutes may be held void because they 
contravene the Constitution, it should follow that treaties may be held 
void, the Constitution being superior to both. And indeed

[[Page 483]]
the Court has numerous times so stated.\329\ It does not appear that the 
Court has ever held a treaty unconstitutional,\330\ although there are 
examples in which decision was seemingly based on a reading compelled by 
constitutional considerations.\331\ In fact, there would be little 
argument with regard to the general point were it not for certain dicta 
in Justice Holmes' opinion in Missouri v. Holland.\332\ ``Acts of 
Congress,'' he said, ``are the supreme law of the land only when made in 
pursuance of the Constitution, while treaties are declared to be so when 
made under the authority of the United States. It is open to question 
whether the authority of the United States means more than the formal 
acts prescribed to make the convention.'' Although he immediately 
followed this passage with a cautionary ``[w]e do not mean to imply that 
there are no qualifications to the treaty-making power . . . ,''\333\ 
the Justice's language and the holding by which it appeared that the 
reserved rights of the States could be invaded through the treaty power 
led in the 1950s to an abortive effort to amend the Constitution to 
restrict the treaty power.\334\

        \328\Whitney v. Robertson, 124 U.S. 190, 194 (1888).
        \329\``The treaty is . . . a law made by the proper authority, 
and the courts of justice have no right to annul or disregard any of its 
provisions, unless they violate the Constitution of the United States.'' 
Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853). ``It need hardly be 
said that a treaty cannot change the Constitution or be held valid if it 
be in violation of that instrument.'' The Cherokee Tobacco, 11 Wall. (78 
U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 
(1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura 
v. City of Seattle, 265 U.S. 332, 341 (1924).
        \330\1 W. Willoughby, op. cit., n.294, 561; L. Henkin, op. cit., 
n.315, 137. In Power Authority of New York v. FPC, 247 F. 2d 538 (2d 
Cir. 1957), a reservation attached by the Senate to a 1950 treaty with 
Canada was held invalid. The court observed that the reservation was 
properly not a part of the treaty but that if it were it would still be 
void as an attempt to circumvent constitutional procedures for enacting 
amendments to existing federal laws. The Supreme Court vacated the 
judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. 
Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement 
with Canada was held void as conflicting with existing legislation. The 
Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296 
        \331\Cf. City of New Orleans v. United States, 10 Pet. (35 U.S.) 
662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).
        \332\252 U.S. 416 (1920).
        \333\Id., 433. Subsequently, he also observed: ``The treaty in 
question does not contravene any prohibitory words to be found in the 
Constitution.'' Ibid.
        \334\The attempt, the so-called ``Bricker Amendment,'' was aimed 
at the expansion into reserved state powers through treaties as well as 
at executive agreements. The key provision read: ``A treaty shall become 
effective as internal law in the United States only through legislation 
which would be valid in the absence of treaty.'' S.J. Res. 43, 82d 
Congress, 1st sess. (1953), Sec. 2. See also S.J. Res. 1, 84th Congress, 
1st sess. (1955), Sec. 2. Extensive hearings developed the issues 
thoroughly but not always clearly. Hearings on S.J. Res. 130, Before a 
Subcommittee of the Senate Judiciary Committee, 82d Congress, 2d sess. 
(1952). Hearings on S.J. Res. 1 & 43, Before a Subcommittee of the 
Senate Judiciary Committee, 83d Congress, 1st sess. (1953); Hearings on 
S.J. Res. 1, Before a Subcommittee of the Senate Judiciary Committee, 
84th Congress, 1st sess. (1955). See L. Henkin, op. cit., n.315, 383-


[[Page 484]]

        Controversy over the Holmes language apparently led Justice 
Black in Reid v. Covert\335\ to deny that the difference in language of 
the supremacy clause with regard to statutes and with regard to treaties 
was relevant to the status of treaties as inferior to the Constitution. 
``There is nothing in this language which intimates that treaties do not 
have to comply with the provisions of the Constitution. Nor is there 
anything in the debates which accompanied the drafting and ratification 
of the Constitution which even suggests such a result. These debates as 
well as the history that surrounds the adoption of the treaty provision 
in Article VI make it clear that the reason treaties were not limited to 
those made in `pursuance' of the Constitution was so that agreements 
made by the United States under the Articles of Confederation, including 
the important treaties which concluded the Revolutionary War, would 
remain in effect. It would be manifestly contrary to the objectives of 
those who created the Constitution, as well as those who were 
responsible for the Bill of Rights--let alone alien to our entire 
constitutional history and tradition--to construe Article VI as 
permitting the United States to exercise power under an international 
agreement without observing constitutional prohibitions. In effect, such 
construction would permit amendment of that document in a manner not 
sanctioned by Article V.''\336\

        \335\354 U.S. 1 (1957) (plurality opinion).
        \336\Id., 16-17. For discussions of the issue, see American Law 
Institute, op. cit., n.262, Sec. 302; Nowak & Rotunda, A Comment on the 
Creation and Resolution of a ``Non-Problem:'' Dames & Moore v. Regan, 
the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. Rev. 
1129 (1982); L. Henkin, op. cit., n.315, 137-156.

        Establishment of the general principle, however, is but the 
beginning; there is no readily agreed-upon standard for determining what 
the limitations are. The most persistently urged proposition in 
limitation has been that the treaty power must not invade the reserved 
powers of the States. In view of the sweeping language of the supremacy 
clause, it is hardly surprising that this argument has not 
prevailed.\337\ Nevertheless, the issue, in the context of Congress' 
power under the necessary and proper clause to effectuate a treaty 
dealing with a subject arguably within the domain of the

[[Page 485]]
States, was presented as recently as 1920, when the Court upheld a 
treaty and implementing statute providing for the protection of 
migratory birds.\338\ ``The treaty in question does not contravene any 
prohibitory words to be found in the Constitution. The only question is 
whether it is forbidden by some invisible radiation from the general 
terms of the Tenth Amendment.''\339\ The gist of the holding followed. 
``Here a national interest of very nearly the first magnitude is 
involved. It can be protected only by national action in concert with 
that of another power. The subject-matter is only transitorily within 
the State and has no permanent habitat therein. But for the treaty and 
the statute there soon might be no birds for any powers to deal with. We 
see nothing in the Constitution that compels the Government to sit by 
while a food supply is cut off and the protectors of our forests and our 
crops are destroyed.''\340\

        \337\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Fairfax's 
Devisee v. Hunter's Lessee, 7 Cr. (11 U.S.) 603 (1813); Chirac v. 
Chirac, 2 Wheat. (15 U.S.) 259 (1817); Hauenstein v. Lynham, 100 U.S. 
483 (1880). Jefferson, in his list of exceptions to the treaty power, 
thought the Constitution ``must have meant to except out of these the 
rights reserved to the States, for surely the President and Senate 
cannot do by treaty what the whole Government is interdicted from doing 
in any way.'' Jefferson's Manual of Parliamentary Practice, Sec. 594, 
reprinted in The Rules and Manual of the House of Representatives, H. 
Doc. 102-405, 102d Congress, 2d sess. (1993), 298-299. But this view has 
always been the minority one. Q. Wright, op. cit., n.302, 92 n.97. The 
nearest the Court ever came to supporting this argument appears to be 
Frederickson v. Louisiana, 23 How. (64 U.S.) 445, 448 (1860).
        \338\Missouri v. Holland, 252 U.S. 416 (1920).
        \339\Id., 433.
        \340\Id., 435.

        The doctrine which seems deducible from this case and others is 
``that in all that properly relates to matters of international rights 
and obligations, whether these rights and obligations rest upon the 
general principles of international law or have been conventionally 
created by specific treaties, the United States possesses all the powers 
of a constitutionally centralized sovereign State; and, therefore, that 
when the necessity from the international standpoint arises the treaty 
power may be exercised, even though thereby the rights ordinarily 
reserved to the States are invaded.''\341\ It is not, in other words, 
the treaty power which enlarges either the federal power or the 
congressional power but the international character of the interest 
concerned which might be acted upon.

        \341\1 W. Willoughby, op. cit., n.294, 569. And see L. Henkin, 
op. cit., n.315, 143-148; Restatement, Foreign Relations, op. cit., 262, 
Sec. 302, Comment d, & Reporters' Note 3, pp. 154-157.

        Dicta in some of the cases lend support to the argument that the 
treaty power is limited by the delegation of powers among the branches 
of the National Government\342\ and especially by the delegated powers 
of Congress, although it is not clear what the limitation means. If it 
is meant that no international agreement could be constitutionally 
entered into by the United States within the sphere of such powers, the 
practice from the beginning has been to

[[Page 486]]
the contrary;\343\ if it is meant that treaty provisions dealing with 
matters delegated to Congress must, in order to become the law of the 
land, receive the assent of Congress through implementing legislation, 
it states not a limitation on the power of making treaties as 
international conventions but rather a necessary procedure before 
certain conventions are cognizable by the courts in the enforcement of 
rights under them.

        \342\E.g., Geofroy v. Riggs, 133 U.S. 258, 266-267 (1890); 
Holden v. Joy, 17 Wall. (84 U.S.) 211, 243 (1872). Jefferson listed as 
an exception from the treaty power ``those subjects of legislation in 
which [the Constitution] gave a participation to the House of 
Representatives'' although he admitted ``that it would leave very little 
matter for the treaty power to work on.'' Jefferson's Manual, op. cit., 
n.337, 299.
        \343\Q. Wright, op. cit., n.302, 101-103. See also, L. Henkin, 
op. cit., n.315, 148-151.

        It has also been suggested that the prohibitions against 
governmental action contained in the Constitution, the Bill of Rights 
particularly, limit the exercise of the treaty power. No doubt this is 
true, though again there are no cases which so hold.\344\

        \344\Cf. Reid v. Covert, 354 U.S. 1 (1957). And see Geofroy v. 
Riggs, 133 U.S. 258, 267 (1890).

        One other limitation of sorts may be contained in the language 
of certain court decisions which seem to say that only matters of 
``international concern'' may be the subject of treaty 
negotiations.\345\ While this may appear to be a limitation, it does not 
take account of the elasticity of the concept of ``international 
concern'' by which the subject matter of treaties has constantly 
expanded over the years.\346\ At best, any attempted resolution of the 
issue of limitations must be an uneasy one.\347\

        \345\``[I]t must be assumed that the framers of the Constitution 
intended that [the treaty power] should extend to all those objects 
which in the intercourse of nations had usually been regarded as the 
proper subjects of negotiation and treaty. . . .'' Holden v. Joy 17 
Wall. (84 U.S.) 211, 243 (1872). With the exceptions noted, ``it is not 
perceived that there is any limit to the questions which can be adjusted 
touching any matter which is properly the subject of negotiation with a 
foreign country.'' Geofroy v. Riggs, 133 U.S. 258, 267 (1890). ``The 
treatymaking power of the United States . . . does extend to all proper 
subjects of negotiation between our government and other nations.'' 
Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
        \346\Cf. L. Henkin, op. cit., n.315, 151-156.
        \347\Other reservations which have been expressed may be briefly 
noted. It has been contended that the territory of a State could not be 
ceded without such State's consent. Geofroy v. Riggs, 133 U.S. 258, 267 
(1890), citing Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 541 (1885). 
Cf. the Webster-Ashburton Treaty, Article V, 8 Stat. 572, 575. But see 
S. Crandall, op. cit., n.264, 220-229; 1 W. Willoughby, op. cit., 294, 
        A further contention is that while foreign territory can be 
annexed to the United States by the treaty power, it could not be 
incorporated with the United States except with the consent of Congress. 
Downes v. Bidwell, 182 U.S. 244, 310-344 (1901) (four Justices 
dissenting). This argument appears to be a variation of the one in 
regard to the correct procedure to give domestic effect to treaties.
        Another argument grew out the XII Hague Convention of 1907, 
proposing an International Prize Court with appellate jurisdiction from 
national courts in prize cases. President Taft objected that no treaty 
could transfer to a tribunal not known to the Constitution any part of 
the judicial power of the United States and a compromise was arranged. 
Q. Wright, op. cit., n.302, 117-118; H. Rept. No. 1569, 68th Congress, 
2d sess. (1925).


[[Page 487]]

        In brief, the fact that all the foreign relations power is 
vested in the National Government and that no formal restriction is 
imposed on the treaty-making power in the international context\348\ 
leaves little room for the notion of a limited treaty-making power with 
regard to the reserved rights of the States or in regard to the choice 
of matters concerning which the Federal Government may treat with other 
nations; protected individual rights appear to be sheltered by specific 
constitutional guarantees from the domestic effects of treaties, and the 
separation of powers at the federal level may require legislative action 
to give municipal effect to international agreements.

        \348\Cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 
304, 318 (1936); Holmes v. Jenison, 14 Pet. (39 U.S.) 540, 575-576 
      Interpretation and Termination of Treaties as International 

        The repeal by Congress of the ``self-executing'' clauses of a 
treaty as ``law of the land'' does not of itself terminate the treaty as 
an international contract, although it may very well provoke the other 
party to the treaty to do so. Hence, the questions arise where the 
Constitution lodges this power and where it lodges the power to 
interpret the contractual provisions of treaties. The first case of 
outright abrogation of a treaty by the United States occurred in 1798, 
when Congress by the Act of July 7 of that year, pronounced the United 
States freed and exonerated from the stipulations of the Treaties of 
1778 with France.\349\ This act was followed two days later by one 
authorizing limited hostilities against the same country; in the case of 
Bas v. Tingy,\350\ the Supreme Court treated the act of abrogation as 
simply one of a bundle of acts declaring ``public war'' upon the French 

        \349\1 Stat. 578 (1798).
        \350\4 Dall. (4 U. S.) 37 (1800). See also Gray v. United 
States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of 
this situation.

        Termination of Treaties by Notice.--Typically, a treaty provides 
for its termination by notice of one of the parties, usually after a 
prescribed time from the date of notice. Of course, treaties may also be 
terminated by agreement of the parties, or by breach by one of the 
parties, or by some other means. But it is in the instance of 
termination by notice that the issue has frequently been raised: where 
in the Government of the United States does the Constitution lodge the 
power to unmake treaties?\351\ Reasonable

[[Page 488]]
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 law-making by the entire Congress; additionally, 
since Congress may be required to implement treaties and may displace 
them through legislation, this argument is reenforced.

        \351\The matter was most extensively canvassed in the debate 
with respect to President Carter's termination of the Mutual Defense 
Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the 
various views argued in Treaty Termination, Hearings before the Senate 
Committee on Foreign Relations, 96th Congress, 1st sess. (1979). On the 
issue generally, see Restatement, Foreign Relations, op. cit., n.262, 
Sec. 339; CRS Study, 158-167; L. Henkin, op. cit., n.315, 167-171; 
Bestor, Respective Roles of Senate and President in the Making and 
Abrogation of Treaties--The Original Intent of the Framers of the 
Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger, 
The President's Unilateral Termination of the Taiwan Treaty, 75 Nw. U. 
L. Rev. 577 (1980).

        Definitive resolution of this argument appears remotely 
possible. Historical practice provides support for all three arguments, 
and the judicial branch seems unlikely to essay any answer.

        While abrogation of the French treaty, mentioned above, is 
apparently the only example of termination by Congress through a public 
law, many instances may be cited of congressional actions mandating 
terminations by notice of the President or changing the legal 
environment so that the President is required to terminate. The initial 
precedent in the instance of termination by notice pursuant to 
congressional action appears to have occurred in 1846,\352\ when by 
joint resolution Congress authorized the President at his discretion to 
notify the British government of the abrogation of the Convention of 
August 6, 1827, relative to the joint occupation of the Oregon 
Territory. As the President himself had requested the resolution, the 
episode is often cited to support the theory that international 
conventions to which the United States is a party, even those terminable 
on notice, are terminable only through action of Congress.\353\ 
Subsequently, Congress has often passed resolutions denouncing treaties 
or treaty provisions, which by their own terms were terminable on 
notice, and Presidents have usually, though not invariably, carried out 
such resolutions.\354\ By the La Follette-

[[Page 489]]
Furuseth Seaman's Act,\355\ President Wilson was directed, ``within 
ninety days after the passage of the act, to give notice to foreign 
governments that so much of any treaties as might be in conflict with 
the provisions of the act would terminate on the expiration of the 
periods of notice provided for in such treaties,'' and the required 
notice was given.\356\ When, however, by section 34 of the Jones 
Merchant Marine Act of 1920, the same President was authorized and 
directed within ninety days to give notice to the other parties to 
certain treaties, with which the Act was not in conflict but which might 
restrict Congress in the future from enacting discriminatory tonnage 
duties, President Wilson refused to comply, asserting that he ``did not 
deem the direction contained in section 34 . . . an exercise of any 
constitutional power possessed by Congress.''\357\ The same attitude 
toward section 34 was continued by Presidents Harding and Coolidge.\358\

        \352\Compare the different views of the 1846 action in Treaty 
Termination, Hearings before the Senate Committee on Foreign Relations, 
96th Congress, 1st sess. (1979), 160-162 (memorandum of Hon. Herbert 
Hansell, Legal Advisor, Department of State), and in Taiwan, Hearings 
before the Senate Committee on Foreign Relations, 96th Congress, 1st 
sess. (1979), 300 (memorandum of Senator Goldwater).
        \353\S. Crandall, op. cit., n.264, 458-459.
        \354\Id., 459-462; Q. Wright, op. cit., n.302, 258.
        \355\38 Stat. 1164 (1915).
        \356\S. Crandall, op. cit., n.264, 460. See Van der Weyde v. 
Ocean Transp. Co., 297 U. S. 114 (1936).
        \357\41 Stat. 1007. See Reeves, The Jones Act and the 
Denunciation of Treaties, 15 Am. J. Int'l. L. 33 (1921). In 1879, 
Congress passed a resolution requiring the President to abrogate a 
treaty with China, but President Hayes vetoed it, partly on the ground 
that Congress as an entity had no role to play in ending treaties, only 
the President with the advice and consent of the Senate. 9 J. 
Richardson, op. cit., n.42, 4466, 4470-4471. For the views of President 
Taft on the matter in context, see W. Taft, The Presidency, Its Duties, 
Its Powers, Its Opportunities and Its Limitations (New York: 1916), 112-
        \358\Since this time, very few instances appear in which 
Congress has requested or directed termination by notice, but they have 
resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination 
of most-favored-nation provisions with certain Communist countries in 
commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of 
treaty rights of extraterritoriality in Morroco). The most recent 
example appears to be Sec. 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. Sec. 5063.

        Very few precedents exist in which the President terminated a 
treaty after obtaining the approval of the Senate alone. The first 
occurred in 1854-1855, when President Pierce requested and received 
Senate approval to terminate a treaty with Denmark.\359\ When the 
validity of this action was questioned in the Senate, the Committee on 
Foreign Relations reported that the procedure was correct, that prior 
full-Congress actions were incorrect, and that the right to terminate 
resides in the treaty-making authorities, the President and the 

        \359\5 J. Richardson, op. cit., n.42, 279, 334.
        \360\S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7. The 
other instance was President Wilson's request, which the Senate 
endorsed, for termination of the International Sanitary Convention of 
1903. See 61 Cong. Rec. 1793-1794 (1921). See CRS Study, op. cit., 
n.262, 161-162.


[[Page 490]]

        Examples of treaty terminations in which the President acted 
alone are much disputed with respect both to facts and to the underlying 
legal circumstances.\361\ Apparently, President Lincoln was the first to 
give notice of termination in the absence of prior congressional 
authorization or direction, and Congress shortly thereafter by joint 
resolution ratified his action.\362\ The first such action by the 
President, with no such subsequent congressional action, appears to be 
that of President McKinley in 1899, in terminating an 1850 treaty with 
Switzerland, but the action may be explainable as the treaty being 
inconsistent with a subsequently enacted law.\363\ Other such 
renunciations by the President acting on his own have been similarly 
explained, and similarly the explanations have been controverted. While 
the Department of State, in setting forth legal justification for 
President Carter's notice of termination of the treaty with Taiwan, 
cited many examples of the President acting alone, many of these are 
ambiguous and may be explained away by, i.e., conflicts with later 
statutes, changed circumstances, or the like.\364\

        \361\Compare, e.g., Treaty Termination, Hearings before the 
Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 
156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department 
of State), with Taiwan, Hearings before the Senate Committee on Foreign 
Relations, 96th Congress, 1st sess. (1979), 300-307 (memorandum of 
Senator Goldwater). See CRS Study, op. cit., n.262, 164-166.
        \362\13 Stat. 568 (1865).
        \363\The treaty, see 11 C. Bevans, Treaties and Other 
International Agreements of the United States of America (Washington: 
1970), 894, was probably at odds with the Tariff Act of 1897. 30 Stat. 
        \364\Compare the views expressed in the Hansell and Goldwater 
memoranda, op. cit., n.361. For expressions of views preceding the 
immediate controversy, see, e.g., Riesenfeld, The Power of Congress and 
the President in International Relations, 25 Calif. L. Rev. 643, 658-665 
(1937); Nelson, The Termination of Treaties and Executive Agreements by 
the United States, 42 Minn. L. Rev. 879 (1958).

        No such ambiguity accompanied President Carter's action on the 
Taiwan treaty,\365\ and a somewhat lengthy Senate debate was provoked. 
In the end, the Senate on a preliminary vote approved a ``sense of the 
Senate'' resolution claiming for itself a consenting role in the 
termination of treaties, but no final vote was ever taken and the Senate 
thus did not place itself in conflict with the President.\366\ However, 
several Members of Congress went to court to contest the termination, 
apparently the first time a judicial resolu

[[Page 491]]
tion of the question had been sought. A divided Court of Appeals, on the 
merits, held that presidential action was sufficient by itself to 
terminate treaties, but the Supreme Court, no majority agreeing on a 
common ground, vacated that decision and instructed the trial court to 
dismiss the suit.\367\ While no opinion of the Court bars future 
litigation, it appears that the political question doctrine or some 
other rule of judicial restraint will leave such disputes to the 
contending forces of the political branches.\368\

        \365\Note that the President terminated the treaty in the face 
of an expression of the sense of Congress that prior consultation 
between President and Congress should occur. 92 Stat. 730, 746 (1978).
        \366\Originally, S. Res. 15 had disapproved presidential action 
alone, but it was amended and reported by the Foreign Relations 
Committee to recognize at least 14 bases of presidential termination. S. 
Rept. No. 119, 96th Congress, 1st sess. (1979). In turn, this resolution 
was amended to state the described sense of the Senate view, but the 
matter was never brought to final action. See 125 Cong. Rec. 13672, 
13696, 13711, 15209, 15859 (1979).
        \367\Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), 
vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case 
nonjusticiable because of the political question doctrine, id., 1002, 
but one other Justice in the majority and one in dissent rejected this 
analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The 
remaining three Justices were silent on the doctrine.
        \368\Cf. Baker v. Carr, 369 U.S. 186, 211-213, 217 (1962).

        Determination Whether a Treaty Has Lapsed.--At the same time, 
there is clear judicial recognition that the President may without 
consulting Congress validly determine the question whether specific 
treaty provisions have lapsed. The following passage from Justice 
Lurton's opinion in Charlton v. Kelly\369\ is pertinent: ``If the 
attitude of Italy was, as contended, a violation of the obligation of 
the treaty, which, in international law, would have justified the United 
States in denouncing the treaty as no longer obligatory, it did not 
automatically have that effect. If the United States elected not to 
declare its abrogation, or come to a rupture, the treaty would remain in 
force. It was only voidable, not void; and if the United States should 
prefer, it might waive any breach which in its judgment had occurred and 
conform to its own obligation as if there had been no such breach. . . . 
That the political branch of the Government recognizes the treaty 
obligation as still existing is evidenced by its action in this case. 
. . . The executive department having thus elected to waive any right to 
free itself from the obligation to deliver up its own citizens, it is 
the plain duty of this court to recognize the obligation to surrender 
the appellant as one imposed by the treaty as the supreme law of the 
land as affording authority for the warrant of extradition.''\370\ So 
also it is primarily for the political departments to determine whether 
certain provisions of a treaty have survived a war in which the other 
contracting state ceased to exist as a member of the international 

        \369\229 U.S. 447 (1913).
        \370\Id., 473-476.
        \371\Clark v. Allen, 331 U.S. 503 (1947).

        Status of a Treaty a Political Question.--At any rate, it is 
clear that many questions which arise concerning a treaty are of a 
political nature and will not be decided by the courts. In the

[[Page 492]]
words of Justice Curtis in Taylor v. Morton:\372\ It is not ``a judicial 
question, whether a treaty with a foreign sovereign has been violated by 
him; whether the consideration of a particular stipulation in a treaty, 
has been voluntarily withdrawn by one party, so that it is no longer 
obligatory on the other; whether the views and acts of a foreign 
sovereign, manifested through his representative have given just 
occasion to the political departments of our government to withhold the 
execution of a promise contained in a treaty, or to act in direct 
contravention of such promise. . . . These powers have not been confided 
by the people to the judiciary, which has no suitable means to exercise 
them; but to the executive and the legislative departments of our 
government. The y belong to diplomacy and legislation, and not to the 
administration of existing laws and it necessarily follows that if they 
are denied to Congress and the Executive, in the exercise of their 
legislative power, they can be found nowhere, in our system of 
government.'' Chief Justice Marshall's language in Foster v. 
Neilson\373\ is to the same effect.

        \372\23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).
        \373\2 Pet. (27 U.S.) 253, 309 (1829). Baker v. Carr, 369 U.S. 
186 (1962), qualifies this certainty considerably, and Goldwater v. 
Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, 
op. cit., n.315, 208-216; Restatement, Foreign Relations, op. cit., 
n.262, Sec. 326.
      Indian Treaties

        In the early cases of Cherokee Nation v. Georgia,\374\ and 
Worcester v. Georgia,\375\ the Court, speaking by Chief Justice 
Marshall, held, first, that the Cherokee Nation was not a sovereign 
state within the meaning of that clause of the Constitution which 
extends the judicial power of the United States to controversies 
``between a State or the citizens thereof and foreign states, citizens 
or subjects.'' Second, it held: ``The Constitution, by declaring 
treaties already made, as well as those to be made, to be the supreme 
law of the land, had adopted and sanctioned the previous treaties with 
the Indian nations, and consequently admits their rank among those 
powers who are capable of making treaties. The words `treaty' and 
`nation' are words of our own language, selected in our diplomatic and 
legislative proceedings, by ourselves, having each a definite and well 
understood meaning. We have applied them to Indians, as we have applied 
them to the other nations of the earth. They are applied to all in the 
same sense.''\376\

        \374\5 Pet. (30 U.S.) 1 (1831).
        \375\6 Pet. (31 U.S.) 515 (1832).
        \376\Id., 558.

        Later cases established that the power to make treaties with the 
Indian tribes was coextensive with the power to make treaties

[[Page 493]]
with foreign nations,\377\ that the States were incompetent to interfere 
with rights created by such treaties,\378\ that as long as the United 
States recognized the national character of a tribe, its members were 
under the protection of treaties and of the laws of Congress and their 
property immune from taxation by a State,\379\ that a stipulation in an 
Indian treaty that laws forbidding the introduction, of liquors into 
Indian territory was operative without legislation, and binding on the 
courts although the territory was within an organized county of a 
State,\380\ and that an act of Congress contrary to a prior Indian 
treaty repealed it.\381\

        \377\Holden v. Joy, 17 Wall. (84 U.S.) 211, 242 (1872); United 
States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick 
v. United States, 208 U.S. 340, 355-356 (1908).
        \378\The New York Indians, 5 Wall. (72 U.S.) 761 (1867).
        \379\The Kansas Indians, 5 Wall. (72 U.S.) 737, 757 (1867).
        \380\United States v. Forty-Three Gallons of Whiskey, 93 U.S. 
188, 196 (1876).
        \381\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871). See 
also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 
U.S. 264, 270 (1898).

        Present Status of Indian Treaties.--Today, the subject of Indian 
treaties is a closed account in the constitutional law ledger. By a 
rider inserted in the Indian Appropriation Act of March 3, 1871, it was 
provided ``That hereafter no Indian nation or tribe within the territory 
of the United States shall be acknowledged or recognized as an 
independent nation, tribe, or power with whom the United States may 
contract by treaty: Provided, further, that nothing herein contained 
shall be construed to invalidate or impair the obligation of any treaty 
heretofore lawfully made and ratified with any such Indian nation or 
tribe.''\382\ Subsequently, the power of Congress to withdraw or modify 
tribal rights previously granted by treaty has been invariably upheld. 
Thus the admission of Wyoming as a State was found to abrogate, pro 
tanto, a treaty guaranteeing certain Indians the right to hunt on 
unoccupied lands of the United States so long as game may be found 
thereon and to bring hunting by the Indians within the police power of 
the State.\383\ Similarly, statutes modifying rights of members in 
tribal lands,\384\ granting a right of way for a railroad through lands 
ceded by treaty to an Indian tribe,\385\ or extending the application of 
revenue laws respecting liquor and tobacco over Indian territories, 
despite an earlier treaty exemption,\386\ have been sustained.

        \382\16 Stat. 566; Rev. Stat. Sec. 2079, now contained in 25 
U.S.C. Sec. 71.
        \383\Ward v. Race Horse, 163 U.S. 504 (1896).
        \384\Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
        \385\Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 
        \386\The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871).

        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

[[Page 494]]
to the same extent and in the same way as the private rights of other 
residents or citizens of the United States. Hence it was held that 
certain Indian allottees under an agreement according to which, in part 
consideration of their relinquishment of all their claim to tribal 
property, they were to receive in severalty allotments of lands which 
were to be nontaxable for a specified period, acquired vested rights of 
exemption from State taxation which were protected by the Fifth 
Amendment against abrogation by Congress.\387\

        \387\Choate v. Trapp, 224 U.S. 665, 677-678 (1912); Jones v. 
Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) 
(section of law providing for escheat to tribe of fractionated interests 
in land representing less than 2% of a tract's total acreage violates 
Fifth Amendment's taking clause by completely abrogating rights of 
intestacy and devise).

        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.


        The capacity of the United States to enter into agreements with 
other nations is not exhausted in the treaty-making power. The 
Constitution recognizes a distinction between ``treaties'' and 
``agreements'' or ``compacts'' but does not indicate what the difference 
is.\388\ The differences, which once may have been clearer, have been 
seriously blurred in practice within recent decades. Once a stepchild in 
the family in which treaties were the preferred offspring, the executive 
agreement has surpassed in number and perhaps in international influence 
the treaty formally signed, submitted for ratification to the Senate, 
and proclaimed upon ratification.

        \388\Compare Article II, Sec. 2, cl. 2, and Article VI, cl. 2, 
with Article I, 10, cls. 1 and 3. Cf. Holmes v. Jennison, 14 Pet. (39 
U.S.) 540, 570-572 (1840). And note the discussion in Weinberger v. 
Rossi, 456 U.S. 25, 28-32 (1982).

        During the first half-century of its independence, the United 
States was party to sixty treaties but to only twenty-seven published 
executive agreements. By the beginning of World War II, there had been 
concluded approximately 800 treaties and 1,200 executive agreements. In 
the period 1940-1989, the Nation entered into 759 treaties and into 
13,016 published executive agreements. Cumulatively, in 1989, the United 
states was a party to 890 treaties and 5,117 executive agreements. To 
phrase it comparatively, in the first 50 years of its history, the 
United States concluded twice

[[Page 495]]
as many treaties as executive agreements. In the 50-year period from 
1839 to 1889, a few more executive agreements than treaties were entered 
into. From 1889 to 1939, almost twice as many executive agreements as 
treaties were concluded. In the period since 1939, executive agreements 
have comprised more than 90% of the international agreements 

        \389\CRS Study, op. cit., n.262, xxxiv-xxxv, 13-16. Not all such 
agreements, of course, are published, either because of national-
security/secrecy considerations or because the subject matter is 
trivial. In a 1953 hearing exchange, Secretary of State Dulles estimated 
that about 10,000 executive agreements had been entered into in 
connection with the NATO treaty. ``Every time we open a new privy, we 
have to have an executive agreement.'' Hearing on S.J. Res. 1 and S.J. 
Res. 43, Before a Subcommittee of the Senate Judiciary Committee, 83d 
Congress, 1st sess. (1953), 877.

        One must, of course, interpret the raw figures carefully. Only a 
very small minority of all the executive agreements entered into were 
based solely on the powers of the President as Commander-in-Chief and 
organ of foreign relations; the remainder were authorized in advance by 
Congress by statute or by treaty provisions ratified by the Senate.\390\ 
Thus, consideration of the constitutional significance of executive 
agreements must begin with a differentiation among the kinds of 
agreements which are classed under this single heading.\391\

        \390\One authority concluded that of the executive agreements 
entered into between 1938 and 1957, only 5.9 percent were based 
exclusively on the President's constitutional authority. McLaughlin, The 
Scope of the Treaty Power in the United States--II, 43 Minn. L. Rev. 
651, 721 (1959). Another, somewhat overlapping study found that in the 
period 1946-1972, 88.3% of executive agreements were based at least in 
part on statutory authority; 6.2% were based on treaties, and 5.5% were 
based solely on executive authority. International Agreements: An 
Analysis of Executive Regulations and Practices, A Study Prepared for 
the Senate Committee on Foreign Relations by the Congressional Research 
Service, 95th Cong., 1st sess. (Comm. Print) (1977), 22.
        \391\``[T]he distinction between so-called `executive 
agreements' and `treaties' is purely a constitutional one and has no 
international significance.'' Harvard Research in International Law, 
Draft Convention on the Law of Treaties, 29 Amer. J. Int. L. 697 (Supp.) 
(1935). See E. Byrd, op. cit., n.292, 148-151. Many scholars have 
aggressively promoted the use of executive agreements, in contrast to 
treaties, as a means of enhancing the role of the United States, 
especially the role of the President, in the international system. See 
McDougal & Lans, Treaties and Congressional-Executive or Presidential 
Agreements: Interchangeable Instruments of National Policy (Pts. I & 
II), 54 Yale L. J. 181, 534 (1945).
      Executive Agreements by Authorization of Congress

        Congress early authorized the entry into negotiation and 
agreement of officers of the executive branch with foreign governments, 
authorizing the borrowing of money from foreign countries\392\ and 
appropriating money to pay off the government of Al

[[Page 496]]
giers to prevent pirate attacks on United States shipping.\393\ Perhaps 
the first formal authorization in advance of an executive agreement was 
enactment of a statute that permitted the Postmaster General to ``make 
arrangements with the Postmasters in any foreign country for the 
reciprocal receipt and delivery of letters and packets, through the post 
offices.''\394\ Congress has also approved, usually by resolution, other 
executive agreements, such as the annexing of Texas and Hawaii and the 
acquisition of Samoa.\395\ A prolific source of executive agreements has 
been the authorization of reciprocal arrangements between the United 
States and other countries for the securing of protection for patents, 
copyrights, and trademarks.\396\

        \392\1 Stat. 138 (1790). See E. Byrd, op. cit., n.292, 53 n.146.
        \393\W. McClure, International Executive Agreements (New York: 
1941), 41.
        \394\Id., 38-40. The statute was 1 Stat. 232, 239, 26 (1792).
        \395\Id., 62-70.
        \396\Id., 78-81; S. Crandall, op. cit., n.264, 127-131; see CRS 
Study, op. cit., n.262, 52-55.

        Reciprocal Trade Agreements.--But the most copious source of 
executive agreements has been legislation which provided authority for 
the entering into of reciprocal trade agreements with other 
nations.\397\ Such agreements in the form of treaties providing for the 
reciprocal reduction of duties subject to implementation by Congress 
were frequently entered into,\398\ but beginning with the Tariff Act of 
1890\399\ Congress began to insert provisions authorizing the Executive 
to bargain over reciprocity with no necessity of subsequent legislative 
action. The authority was widened in successive acts.\400\ Then, in the 
Reciprocal Trade Agreements Act of 1934,\401\ Congress authorized the 
President to enter into agreements with other nations for reductions of 
tariffs and other impediments to international trade and to put the 
reductions into effect through proclamation.\402\

        \397\Id., 121-127; W. McClure, op. cit., n.393, 83-92, 173-189.
        \398\Id., 8, 59-60.
        \399\Sec. 3, 26 Stat. 567, 612.
        \400\Tariff Act of 1897, Sec. 3, 30 Stat. 15, 203; Tariff Act of 
1909, 36 Stat. 11, 82.
        \401\48 Stat. 943, Sec. 350(a), 19 U.S.C. Sec. Sec. 1351-1354.
        \402\See the continued expansion of the authority. Trade 
Expansion Act of 1962, 76 Stat. 872, Sec. 201, 19 U.S.C. Sec. 1821; 
Trade Act of 1974, 88 Stat. 1982, as amended, 19 U.S.C. Sec. Sec. 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 ``fast-track'' procedure under which legislation 
is brought up under a tight timetable and without the possibility of 
amendment. 19 U.S.C. Sec. Sec. 2191-2194.

        The Constitutionality of Trade Agreements.--In Field v. 
Clark,\403\ this type of legislation was sustained against the objection 
that it attempted an unconstitutional delegation ``of both legis

[[Page 497]]
lative and treaty-making powers.'' The Court met the first objection 
with an extensive review of similar legislation from the inauguration of 
government under the Constitution. The second objection it met with a 
curt rejection: ``What has been said is equally applicable to the 
objection that the third section of the act invests the President with 
treaty-making power. The Court is of opinion that the third section of 
the act of October 1, 1890, is not liable to the objection that it 
transfers legislative and treaty-making power to the President.''\404\ 
Although two Justices disagreed, the question has never been revived. 
However, in B. Altman & Co. v. United States,\405\ decided twenty years 
later, a collateral question was passed upon. This was whether an act of 
Congress which gave the federal circuit courts of appeal jurisdiction of 
cases in which ``the validity or construction of any treaty . . . was 
drawn in question'' embraced a case involving a trade agreement which 
had been made under the sanction of Tariff Act of 1897. Said the Court: 
``While it may be true that this commercial agreement, made under 
authority of the Tariff Act of 1897, Sec. 3, was not a treaty possessing 
the dignity of one requiring ratification by the Senate of the United 
States, it was an international compact, negotiated between the 
representatives of two sovereign nations and made in the name and on 
behalf of the contracting countries, and dealing with important 
commercial relations between the two countries, and was proclaimed by 
the President. If not technically a treaty requiring ratification, 
nevertheless, it was a compact authorized by the Congress of the United 
States, negotiated and proclaimed under the authority of its President. 
We think such a compact is a treaty under the Circuit Court of Appeals 
Act, and, where its construction is directly involved, as it is here, 
there is a right of review by direct appeal to this court.''\406\

        \403\143 U.S. 649 (1892).
        \404\Id., 694. See also Dames & Moore v. Regan, 453 U.S. 654 
(1981), in which the Court sustained a series of implementing actions by 
the President pursuant to executive agreements with Iran in order to 
settle the hostage crisis. The Court found that Congress had delegated 
to the President certain economic powers underlying the agreements and 
that his suspension of claims powers had been implicitly ratified over 
time by Congress' failure to set aside the asserted power. Also see 
Weinberger v. Rossi, 456 U.S. 25, 29-30 n. 6 (1982).
        \405\224 U.S. 583 (1912).
        \406\Id., 601.

        The Lend-Lease Act.--The most extensive delegation of authority 
ever made by Congress to the President to enter into executive 
agreements occurred within the field of the cognate powers of the two 
departments, the field of foreign relations, and took place at a time 
when war appeared to be in the offing and was in fact only a few months 
away. The legislation referred to is the Lend-

[[Page 498]]
Lease Act of March 11, 1941,\407\ by which the President was empowered 
for something over two years--and subsequently for additional periods 
whenever he deemed it in the interest of the national defense to do so--
to authorize ``the Secretary of War, the Secretary of the Navy, or the 
head of any other department or agency of the Government,'' to 
manufacture in the government arsenals, factories, and shipyards, or 
``otherwise procure,'' to the extent that available funds made possible, 
``defense articles''--later amended to include foodstuffs and industrial 
products--and ``sell, transfer title to, exchange, lease, lend, or 
otherwise dispose of,'' the same to the ``government of any country 
whose defense the President deems vital to the defense of the United 
States,'' and on any terms that he ``deems satisfactory.'' Under this 
authorization the United States entered into Mutual Aid Agreements 
whereby the Government furnished its allies in World War II forty 
billions of dollars worth of munitions of war and other supplies.

        \407\55 Stat. 31.

        International Organizations.--Overlapping of the treaty-making 
power through congressional-executive cooperation in international 
agreements is also demonstrated by the use of resolutions approving the 
United States joining of international organizations\408\ and 
participating in international conventions.\409\

        \408\E.g., 48 Stat. 1182 (1934), authorizing the President to 
accept membership for the United States in the International Labor 
        \409\See E. Corwin, op. cit., n.44, 216.
      Executive Agreements Authorized by Treaties

        Arbitration Agreements.--In 1904-1905, Secretary of State John 
Hay negotiated a series of treaties providing for the general 
arbitration of international disputes. Article II of the treaty with 
Great Britain, for example, provided as follows: ``In each individual 
case the High Contracting Parties, before appealing to the Permanent 
Court of Arbitration, shall conclude a special Agreement defining 
clearly the matter in dispute and the scope of the powers of the 
Arbitrators, and fixing the periods for the formation of the Arbitral 
Tribunal and the several stages of the procedure.''\410\ The Senate 
approved the British treaty by the constitutional majority having, 
however, first amended it by substituting the word ``treaty'' for 
``agreement.'' President Theodore Roosevelt, characterizing the 
``ratification'' as equivalent to rejection, sent the treaties to repose 
in the archives. ``As a matter of historical practice,'' Dr. McClure 
comments, ``the compromis under which disputes have been arbitrated 
include both treaties and executive agreements in goodly

[[Page 499]]
numbers,''\411\ a statement supported by both Willoughby and Moore.\412\

        \410\W. McClure, op. cit., n.393, 13-14.
        \411\Id., 14.
        \412\1 W. Willoughby, op. cit., n.294, 543.

        Agreements Under the United Nations Charter.--Article 43 of the 
United Nations Charter provides: ``1. All Members of the United Nations, 
in order to contribute to the maintenance of international peace and 
security, undertake to make available to the Security Council, on its 
call and in accordance with a special agreement or agreements, armed 
forces, assistance, and facilities, including rights of passage, 
necessary for the purpose of maintaining international peace and 
security. 2. Such agreement or agreements shall govern the numbers and 
types of forces, their degree of readiness and general location, and the 
nature of the facilities and assistance to be provided. 3. The agreement 
or agreements shall be negotiated as soon as possible on the initiative 
of the Security Council. The y shall be concluded between the Security 
Council and Members or between the Security Council and groups of 
Members and shall be subject to ratification by the signatory states in 
accordance with their respective constitutional processes.''\413\ This 
time the Senate did not boggle over the word ``agreement.''

        \413\A Decade of American Foreign Policy, S. Doc. No. 123, 81st 
Cong., 1st Sess., 126 (1950).

        The United Nations Participation Act of December 20, 1945, 
implements these provisions as follows: ``The President is authorized to 
negotiate a special agreement or agreements with the Security Council 
which shall be subject to the approval of the Congress by appropriate 
Act or joint resolution, providing for the numbers and types of armed 
forces, their degree of readiness and general location, and the nature 
of facilities and assistance, including rights of passage, to be made 
available to the Security Council on its call for the purpose of 
maintaining international peace and security in accordance with article 
43 of said Charter. The President shall not be deemed to require the 
authorization of the Congress to make available to the Security Council 
on its call in order to take action under article 42 of said Charter and 
pursuant to such special agreement or agreements the armed forces, 
facilities, or assistance provided for therein: Provided, That nothing 
herein contained shall be construed as an authorization to the President 
by the Congress to make available to the Security Council for such 
purpose armed forces, facilities, or assistance in addition to the 
forces, facilities, and assistance provided for in such special 
agreement or agreements.''\414\

        \414\Id., 158.

[[Page 500]]

        Status of Forces Agreements.--Negotiated pursuant to 
authorizations contained in treaties between the United States and 
foreign nations in the territory of which American troops and their 
dependents are stationed, these Agreements afford the United States a 
qualified privilege, which may be waived, of trying by court martial 
soldiers and their dependents charged with commission of offenses 
normally within the exclusive, criminal jurisdiction of the foreign 
signatory power. When the United States, in conformity with the waiver 
clause in such an Agreement, consented to the trial in a Japanese court 
of a soldier charged with causing the death of a Japanese woman on a 
firing range in that country, the Court could ``find no constitutional 
barrier'' to such action.\415\ However, at least five of the Supreme 
Court Justices were persuaded to reject at length the contention that 
such Agreements could sustain, as necessary and proper for their 
effectuation, implementing legislation subsequently found by the Court 
to contravene constitutional guaranties set forth in the Bill of 

        \415\Wilson v. Girard, 354 U.S. 524 (1957).
        \416\Reid v. Covert, 354 U.S. 1, 16-17 (1957) (plurality 
opinion); id., 66 (Justice Harlan concurring).
      Executive Agreements on the Sole Constitutional Authority of the 

        Many types of executive agreements comprise the ordinary daily 
grist of the diplomatic mill. Among these are such as apply to minor 
territorial adjustments, boundary rectifications, the policing of 
boundaries, the regulation of fishing rights, private pecuniary claims 
against another government or its nationals, in Story's words, ``the 
mere private rights of sovereignty.''\417\ Crandall lists scores of such 
agreements entered into with other governments by the authorization of 
the President.\418\ Such agreements were ordinarily directed to 
particular and comparatively trivial disputes and by the settlement they 
effect of these cease ipso facto to be operative. Also, there are such 
time-honored diplomatic devices as the ``protocol'' which marks a stage 
in the negotiation of a treaty, and the modus vivendi, which is designed 
to serve as a temporary substitute for one. Executive agreements become 
of constitutional significance when they constitute a determinative 
factor of future foreign policy and hence of the country's destiny. In 
consequence particularly of our participation in World War II and our 
immersion in the conditions of international tension which prevailed 
both be

[[Page 501]]
fore and after the war, Presidents have entered into agreements with 
other governments some of which have approximated temporary alliances. 
It cannot be justly said, however, that in so doing they have acted 
without considerable support from precedent.

        \417\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1397.
        \418\S. Crandall, op. cit., n.264, ch. 8; see also W. McClure, 
op. cit., n.393, chs. 1, 2.

        An early instance of executive treaty-making was the agreement 
by which President Monroe in 1817 brought about a delimitation of 
armaments on the Great Lakes. The arrangement was effected by an 
exchange of notes, which nearly a year later were laid before the Senate 
with a query as to whether it was within the President's power, or 
whether advice and consent of the Senate wwas required. The Senate 
approved the agreement by the required two-thirds vote, and it was 
forthwith proclaimed by the President without there having been a formal 
exchange of ratifications.\419\ Of a kindred type, and owing much to the 
President's capacity as Commander-in-Chief, was a series of agreements 
entered into with Mexico between 1882 and 1896 according each country 
the right to pursue marauding Indians across the common border.\420\ 
Commenting on such an agreement, the Court remarked, a bit uncertainly: 
``While no act of Congress authorizes the executive department to permit 
the introduction of foreign troops, the power to give such permission 
without legislative assent was probably assumed to exist from the 
authority of the President as commander in chief of the military and 
naval forces of the United States. It may be doubted, however, whether 
such power could be extended to the apprehension of deserters [from 
foreign vessels] in the absence of positive legislation to that 
effect.''\421\ Justice Gray and three other Justices were of the opinion 
that such action by the President must rest upon express treaty or 

        \419\Id., 49-50.
        \420\Id., 81-82.
        \421\Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).
        \422\Id., 467. The first of these conventions, signed July 29, 
1882, had asserted its constitutionality in very positive terms. Q. 
Wright, op. cit., n.302, 239 (quoting Watts v. United States, 1 Wash. 
Terr. 288, 294 (1870)).

        Notable expansion of presidential power in this field first 
became manifest in the administration of President McKinley. At the 
outset of war with Spain, the President proclaimed that the United 
States would consider itself bound for the duration by the last three 
principles of the Declaration of Paris, a course which, as Professor 
Wright observes, ``would doubtless go far toward establishing these 
three principles as international law obligatory upon the United States 
in future wars.''\423\ Hostilities with Spain were brought to an end in 
August, 1898, by an armistice the conditions

[[Page 502]]
of which largely determined the succeeding treaty of peace,\424\ just as 
did the Armistice of November 11, 1918, determine in great measure the 
conditions of the final peace with Germany in 1918. It was also 
President McKinley who in 1900, relying on his own sole authority as 
Commander-in-Chief, contributed a land force of 5,000 men and a naval 
force to cooperate with similar contingents from other Powers to rescue 
the legations in Peking from the Boxers; a year later, again without 
consulting either Congress or the Senate, he accepted for the United 
States the Boxer Indemnity Protocol between China and the intervening 
Powers.\425\ Commenting on the Peking protocol Willoughby quotes with 
approval the following remark: ``This case is interesting, because it 
shows how the force of circumstances compelled us to adopt the European 
practice with reference to an international agreement, which, aside from 
the indemnity question, was almost entirely political in character . . . 
purely political treaties are, under constitutional practice in Europe, 
usually made by the executive alone. The situation in China, however, 
abundantly justified President McKinley in not submitting the protocol 
to the Senate. The remoteness of Peking, the jealousies between the 
allies, and the shifting evasive tactics of the Chinese Government, 
would have made impossible anything but an agreement on the spot.''\426\

        \423\Id., 245.
        \424\S. Crandall, op. cit., n.264, 103-104.
        \425\Id., 104.
        \426\1 W. Willoughby, op. cit., n.294, 539.

        It was during this period, too, that John Hay, as McKinley's 
Secretary of State, initiated his ``Open Door'' policy, by notes to 
Great Britain, Germany, and Russia, which were soon followed by similar 
notes to France, Italy and Japan. These in substance asked the 
recipients to declare formally that they would not seek to enlarge their 
respective interests in China at the expense of any of the others; and 
all responded favorably.\427\ Then, in 1905, the first Roosevelt, 
seeking to arrive at a diplomatic understanding with Japan, instigated 
an exchange of opinions between Secretary of War Taft, then in the Far 
East, and Count Katsura, amounting to a secret treaty, by which the 
Roosevelt administration assented to the establishment by Japan of a 
military protectorate in Korea.\428\ Three years later, Secretary of 
State Root and the Japanese ambassador at Washington entered into the 
Root-Takahira Agreement to uphold the status quo in the Pacific and 
maintain the principle of equal opportunity for commerce and industry in 
China.\429\ Meantime, in 1907, by a ``Gentleman's Agreement,'' the 
Mikado's govern

[[Page 503]]
ment had agreed to curb the emigration of Japanese subjects to the 
United States, thereby relieving the Washington government from the 
necessity of taking action that would have cost Japan loss of face. The 
final result of this series of executive agreements touching American 
relations in and with the Far East was the product of President Wilson's 
diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange 
of letters dated November 2, 1917, by which the United States recognized 
Japan's ``special interests'' in China, and Japan assented to the 
principle of the Open Door in that country.\430\

        \427\W. McClure, op. cit., n.393, 98.
        \428\Id., 96-97.
        \429\Id., 98-99.
        \430\Id., 99-100.

        The Litvinov Agreement.--The executive agreement attained its 
modern development as an instrument of foreign policy under President 
Franklin D. Roosevelt, at times threatening to replace the treaty-making 
power, not formally but in effect, as a determinative element in the 
field of foreign policy. The President's first important utilization of 
the executive agreement device took the form of an exchange of notes on 
November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for 
Foreign Affairs, whereby American recognition was extended to the Soviet 
Union and certain pledges made by each official.\431\

        \431\Id., 140-144.

        The Hull-Lothian Agreement.--With the fall of France in June, 
1940, President Roosevelt entered that summer into two executive 
agreements the total effect of which was to transform the role of the 
United States from one of strict neutrality toward the European war to 
one of semi-belligerency. The first agreement was with Canada and 
provided for the creation of a Permanent Joint Board on Defense which 
would ``consider in the broad sense the defense of the north half of the 
Western Hemisphere.''\432\ Second, and more important than the first, 
was the Hull-Lothian Agreement of September 2, 1940, under which, in 
return for the lease for 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.\433\ And on April 9, 1941, the State 
Department, in consideration of the just-completed German occupation of 
Denmark, entered into an executive agreement with the Danish min

[[Page 504]]
ister in Washington, whereby the United States acquired the right to 
occupy Greenland for purposes of defense.\434\

        \432\Id., 391.
        \433\Id., 391-393. Attorney General Jackson's defense of the 
presidential power to enter into the arrangement placed great reliance 
on the President's ``inherent'' powers under the Commander-in-Chief 
clause and as sole organ of foreign relations but ultimately found 
adequate statutory authority to take the steps deemed desirable. 39 Ops. 
Atty. Gen. 484 (1940).
        \434\4 Dept. State Bull. 443 (1941).

        The Post-War Years.--Post-war diplomacy of the United States was 
greatly influenced by the executive agreements entered into at Cairo, 
Teheran, Yalta, and Potsdam.\435\ For a period, the formal treaty--the 
signing of the United Nations Charter and the entry into the 
multinational defense pacts, like NATO, SEATO, CENTRO, and the like--
reestablished itself, but soon the executive agreement, as an adjunct of 
treaty arrangement or solely through presidential initiative, again 
became the principal instrument of United States foreign policy, so that 
it became apparent in the 1960s that the Nation was committed in one way 
or another to assisting over half the countries of the world protect 
themselves.\436\ Congressional disquietitude did not result in anything 
more substantial than passage of a ``sense of the Senate'' resolution 
expressing a desire that ``national commitments'' be made more solemnly 
in the future than in the past.\437\

        \435\See A Decade of American Foreign Policy, Basic Documents 
1941-1949, S. Doc. No. 123, 81st Congress, 1st sess. (1950), pt. 1.
        \436\For a congressional attempt to evaluate the extent of such 
commitments, see United States Security Agreements and Commitments 
Abroad, Hearings Before a Subcommittee of the Senate Foreign Relations 
Committee, 91st Congress, 1st sess. (1969), 10 pts.; see also U.S. 
Commitments to Foreign Powers, Hearings Before the Senate Foreign 
Relations Committee on S. Res. 151, 90th Congress, 1st sess. (1967).
        \437\The ``National Commitments Resolution,'' S. Res. 85, 91st 
Congress, 1st sess., passed by the Senate June 25, 1969. See also S. 
Rept. No. 797, 90th Congress, 1st sess. (1967). See the discussion of 
these years in CRS Study, op. cit., n.262, 169-202.
      The Domestic Obligation of Executive Agreements

        When the President enters into an executive agreement, what sort 
of obligation is thereby imposed upon the United States? That 
international obligations of potentially serious consequences may be 
imposed is obvious and that such obligations may linger for long periods 
of time is equally obvious.\438\ But the question is more directly 
pointed to the domestic obligations imposed by such agreements; are 
treaties and executive agreements interchangeable insofar as domestic 
effect is concerned?\439\ Executive agreements entered into pursuant to 
congressional authorization and probably

[[Page 505]]
through treaty obligations present little doctrinal problem; those 
arrangements which the President purports to bind the Nation with solely 
on the basis of his constitutional powers, however, do raise serious 

        \438\In 1918, Secretary of State Lansing assured the Senate 
Foreign Relations Committee that the Lansing-Ishii Agreement had no 
binding force on the United States, that it was simply a declaration of 
American policy so long as the President and State Department might 
choose to continue it. 1 W. Willoughby, op. cit., n.294, 547. In fact, 
it took the Washington Conference of 1921, two formal treaties, and an 
exchange of notes to eradicate it, while the ``Gentlemen's Agreement'' 
was finally ended after 17 years only by an act of Congress. W. McClure, 
op. cit., n.393, 97, 100.
        \439\See E. Byrd, op. cit., n.292, 151-157.

        Until recently, it was the view of most judges and scholars that 
this type of executive agreement did not become the ``law of the land'' 
pursuant to the supremacy clause because the treaty format was not 
adhered to.\440\ A different view seemed to underlay the Supreme Court 
decision in B. Altman & Co. v. United States,\441\ in which it was 
concluded that a jurisdictional statute reference to ``treaty'' 
encompassed an executive agreement. The idea flowered in United States 
v. Belmont,\442\ where the Court, in an opinion by Justice Sutherland, 
following on his Curtiss-Wright\443\ opinion, gave domestic effect to 
the Litvinov Agreement. At issue was whether a district court of the 
United States was correct in dismissing an action by the United States, 
as assignee of the Soviet Union, for certain moneys which had once been 
the property of a Russian metal corporation the assets of which had been 
appropriated by the Soviet government. The lower court had erred, the 
Court ruled. The President's act in recognizing the Soviet government, 
and the accompanying agreements, constituted, said the Justice, an 
international compact which the President, ``as the sole organ'' of 
international relations for the United States, was authorized to enter 
upon without consulting the Senate. Nor did state laws and policies make 
any difference in such a situation, for while the supremacy of treaties 
is established by the Constitution in express terms, yet the same rule 
holds ``in the case of all international compacts and agreements from 
the very fact that complete power over international affairs is in the 
National Government and is not and cannot be subject to any curtailment 
or interference on the part of the several States.''\444\

        \440\E.g., United States v. One Bag of Paradise Feathers, 256 F. 
301, 306 (2d Cir., 1919); 1 W. Willoughby, op. cit., n.294, 589. The 
State Department held the same view. 5 G. Hackworth, Digest of 
International Law (Washington: 1944), 426.
        \441\224 U.S. 583 (1912).
        \442\301 U.S. 324 (1937).
        \443\United States v. Curtiss-Wright Export Corp., 299 U.S. 304 
        \444\Id., 330-332.

        In United States v. Pink,\445\ decided five years later, the 
same course of reasoning was reiterated with added emphasis. The 
question here involved was whether the United States was entitled under 
the Executive Agreement of 1933 to recover the assets of the New York 
branch of a Russian insurance company. The company

[[Page 506]]
argued that the decrees of confiscation of the Soviet Government did not 
apply to its property in New York and could not consistently with the 
Constitution of the United States and that of New York. The Court, 
speaking by Justice Douglas, brushed these arguments aside. An official 
declaration of the Russian government itself settled the question of the 
extraterritorial operation of the Russian decree of nationalization and 
was binding on American courts. The power to remove such obstacles to 
full recognition as settlement of claims of our nationals was ``a modest 
implied power of the President who is the `sole organ of the Federal 
Government in the field of international relations'. . . . It was the 
judgment of the political department that full recognition of the Soviet 
Government required the settlement of outstanding problems including the 
claims of our nationals. . . . We would usurp the executive function if 
we held that the decision was not final and conclusive on the courts.

        \445\315 U.S. 203 (1942).

        ``It is, of course, true that even treaties with foreign nations 
will be carefully construed so as not to derogate from the authority and 
jurisdiction of the States of this nation unless clearly necessary to 
effectuate the national policy. . . . But state law must yield when it 
is inconsistent with, or impairs the policy or provisions of, a treaty 
or of an international compact or agreement. . . . Then, the power of a 
State to refuse enforcement of rights based on foreign law which runs 
counter to the public policy of the forum . . . must give way before the 
superior Federal policy evidenced by a treaty or international compact 
or agreement. . . .

        ``The action of New York in this case amounts in substance to a 
rejection of a part of the policy underlying recognition by this nation 
of Soviet Russia. Such power is not accorded a State in our 
constitutional system. To permit it would be to sanction a dangerous 
invasion of Federal authority. For it would `imperil the amicable 
relations between governments and vex the peace of nations.' . . . It 
would tend to disturb that equilibrium in our foreign relations which 
the political departments of our national government has diligently 
endeavored to establish. . . .

        ``No State can rewrite our foreign policy to conform to its own 
domestic policies. Power over external affairs is not shared by the 
States; it is vested in the national government exclusively. It need not 
be so exercised as to conform to State laws or State policies, whether 
they be expressed in constitutions, statutes, or judicial decrees. And 
the policies of the States become wholly irrelevant to judicial inquiry 
when the United States, acting within its constitu

[[Page 507]]
tional sphere, seeks enforcement of its foreign policy in the 

        \446\Id., 229-234. Chief Justice Stone and Justice Roberts 

        No Supreme Court decision subsequent to Belmont and Pink is 
available for consideration.\447\ Whether the cases in fact turned on 
the particular fact that the executive agreement in question was 
incidental to the President's right to recognize a foreign state, 
despite the language which equates treaties and executive agreements for 
purposes of domestic law, cannot be known. Certainly, executive 
agreements entered into solely on the authority of the President's 
constitutional powers are not the law of the land because of the 
language of the supremacy clause, and the absence of any congressional 
participation denies them the political requirements they may well need 
to attain this position. Nonetheless, so long as Belmont and Pink remain 
unqualified, it must be considered that executive agreements do have a 
significant status in domestic law.\448\ This status was another element 
in the movement for a constitutional amendment in the 1960s to limit the 
President's powers in this field, a movement that ultimately 

        \447\The 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 
        \448\But see United States v. Guy W. Capps, Inc., 204 F. 2d 655 
(4th Cir., 1953), wherein Chief Judge Parker held that an executive 
agreement entered into by the President without congressional 
authorization or ratification could not displace domestic law 
inconsistent with such agreement. The Supreme Court affirmed on other 
grounds and declined to consider this matter. 348 U.S. 296 (1955).
        \449\There were numerous variations in language, but typical was 
Sec. 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 Sec. 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.''

                       THE EXECUTIVE ESTABLISHMENT


        ``An office is a public station, or employment, conferred by the 
appointment of government. The term embraces the ideas of tenure, 
duration, emolument, and duties.''\450\

        \450\United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 

        Ambassadors and Other Public Ministers.--The term ``ambassadors 
and other public ministers,'' comprehends ``all officers having 
diplomatic functions, whatever their title or designa

[[Page 508]]
tion.''\451\ It was originally assumed that such offices were 
established by the Constitution itself, by reference to the Law of 
Nations, with the consequence that appointments might be made to them 
whenever the appointing authority--the President and Senate--deemed 
desirable.\452\ During the first sixty-five years of the Government, 
Congress passed no act purporting to create any diplomatic rank, the 
entire question of grades being left with the President. Indeed, during 
the administrations of Washington, Adams and Jefferson, and the first 
term of Madison, no mention occurs in any appropriation, even of 
ministers of a specified rank at this or that place, but the provision 
for the diplomatic corps consisted of so much money ``for the expenses 
of foreign intercourse,'' to be expended at the discretion of the 
President. In Madison's second term, the practice was introduced of 
allocating special sums to the several foreign missions maintained by 
the Government, but even then the legislative provisions did not purport 
to curtail the discretion of the President in any way in the choice of 
diplomatic agents.

        \451\7 Ops. Atty. Gen. 168 (1855).
        \452\It was so assumed by Senator William Maclay. The Journal of 
William Maclay, E. Maclay ed. (New York: 1890), 109-110.

        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

[[Page 509]]
States have relations with all other independent powers; and the 
management of those relations is vested in the Executive.''\453\

        \453\26 Annals of Congress 694-722 (1814) (quotation appearing 
at 699); 4 Letters and Other Writings of James Madison (Philadelphia: 
1865), 350-353.

        By the opening section of the act of March 1, 1855, it was 
provided that ``from and after the thirtieth day of June next, the 
President of the United States shall, by and with the advice and consent 
of the Senate, appoint representatives of the grade of envoys 
extraordinary and ministers plenipotentiary,'' with a specified annual 
compensation for each, ``to the following countries. . . .'' In the body 
of the act was also this provision: ``The President shall appoint no 
other than citizens of the United States, who are residents thereof, or 
who shall be abroad in the employment of the Government at the time of 
their appointment. . . .''\454\ The question of the interpretation of 
the act having been referred to Attorney General Cushing, he ruled that 
its total effect, aside from its salary provisions, was recommendatory 
only. It was ``to say, that if, and whenever, the President shall, by 
and with the advice and consent of the Senate, appoint an envoy 
extraordinary and minister plenipotentiary to Great Britain, or to 
Sweden, the compensation of that minister shall be so much and no 

        \454\10 Stat. 619, 623.
        \455\7 Ops. Atty. Gen. 186, 220 (1855).

        This line of reasoning is only partially descriptive of the 
facts. The Foreign Service Act of 1946,\456\ pertaining to the 
organization of the foreign service, diplomatic as well as consular, 
contains detailed provisions as to grades, salaries, promotions, and, in 
part, as to duties. Under the terms thereof the President, by and with 
the advice and consent of the Senate, appoints ambassadors, ministers, 
foreign service officers, and consuls, but in practice the vast 
proportion of the selections are made in conformance to recommendations 
of a Board of the Foreign Service.

        \456\60 Stat. 999, superseded by the Foreign Service Act of 
1980, P. L. 96-465, 94 Stat. 2071, 22 U.S.C. Sec. 3901 et seq.
      Presidential Diplomatic Agents

        What the President may have lost in consequence of the 
intervention of Congress in this field, he has made good through his 
early conceded right to employ, in the discharge of his diplomatic 
function, so-called ``special,'' ``personal,'' or ``secret'' agents 
without consulting the Senate. When President Jackson's right to resort 
to this practice was challenged in the Senate in 1831, it was defended 
by Edward Livingston, Senator from Louisiana, to such good purpose that 
Jackson made him Secretary of State. ``The practice of appointing secret 
agents,'' said Livingston, ``is coeval with our exist

[[Page 510]]
ence as a nation, and goes beyond our acknowledgement as such by other 
powers. All those great men who have figured in the history of our 
diplomacy, began their career, and performed some of their most 
important services in the capacity of secret agents, with full powers. 
Franklin, Adams, Lee, were only commissioners; and in negotiating a 
treaty with the Emperor of Morocco, the selection of the secret agent 
was left to the Ministers appointed to make the treaty; and, 
accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed 
Thomas Barclay, who went to Morocco and made a treaty, which was 
ratified by the Ministers at Paris.

        ``These instances show that, even prior to the establishment of 
the Federal Government, secret plenipotentiaries were known, as well in 
the practice of our own country as in the general law of nations: and 
that these secret agents were not on a level with messengers, letter 
carriers, or spies, to whom it has been found necessary in argument to 
assimilate them. On the 30th March, 1795, in the recess of the Senate, 
by letters patent under the great broad seal of the United States, and 
the signature of their President, (that President being George 
Washington,) countersigned by the Secretary of State, David Humphreys 
was appointed commissioner plenipotentiary for negotiating a treaty of 
peace with Algiers. By instructions from the President, he was 
afterwards authorized to employ Joseph Donaldson as agent in that 
business. In May, of the same year, he did appoint Donaldson, who went 
to Algiers, and in September of the same year concluded a treaty with 
the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 
28th November in the same year, and afterwards ratified by the Senate, 
and an act passed both Houses on 6th May, 1796, appropriating a large 
sum, twenty-five thousand dollars annually, for carrying it into 

        \457\11 T. Benton, Abridgement of the Debates of Congress 
(Washington: 1860), 221.

        The precedent afforded by Humphreys' appointment without 
reference to the Senate has since been multiplied many times,\458\ as 
witness the mission of A. Dudley Mann to Hanover and other German states 
in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to 
Mexico in 1848, of Commodore Perry to Japan in 1852, of J. H. Blount to 
Hawaii in 1893. The last named case is perhaps the most extreme of all. 
Blount, who was appointed while the Senate was in session but without 
its advice and consent, was given ``paramount authority'' over the 
American resident minister at Hawaii and was further empowered to employ 
the military and naval forces of the United States, if necessary to 
protect Amer

[[Page 511]]
ican lives and interests. His mission raised a vigorous storm of protest 
in the Senate, but the majority report of the committee which was 
created to investigate the constitutional question vindicated the 
President in the following terms: ``A question has been made as to the 
right of the President of the United States to dispatch Mr. Blount to 
Hawaii as his personal representative for the purpose of seeking the 
further information which the President believed was necessary in order 
to arrive at a just conclusion regarding the state of affairs in Hawaii. 
Many precedents could be quoted to show that such power has been 
exercised by the President on various occasions, without dissent on the 
part of Congress or the people of the United States. . . . These 
precedents also show that the Senate of the United States, though in 
session, need not be consulted as to the appointment of such agents, . 
. . .''\459\ The continued vitality of the practice is attested by such 
names as Colonel House, the late Norman H. Davis, who filled the role of 
``ambassador at large'' for a succession of administrations of both 
parties, Professor Philip Jessup, Mr. Averell Harriman, and other 
``ambassadors at large'' of the Truman Administration, and Professor 
Henry Kissinger of the Nixon Administration.

        \458\S. Misc. Doc, 109, 50th Congress, 1st Sess. (1888), 104.
        \459\S. Rept. No. 227, 53d Congress, 2d Sess. (1894), 25. At the 
outset of our entrance into World War I President Wilson dispatched a 
mission to ``Petrograd,'' as it was then called, without nominating the 
Members of it to the Senate. It was headed by Mr. Elihu Root, with ``the 
rank of ambassador,'' while some of his associates bore ``the rank of 
envoy extraordinary.''

        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, Sec. 6, clause 2 of the Constitution, which 
provides that ``no Senator or Representative shall . . . be appointed to 
any civil Office under the Authority of the United States, which shall 
have been created,'' during his term; and no officer of the United 
States, ``shall be a Member of either House during his Continuance in 
Office.''\460\ The Treaty of Peace with Spain, the treaty to settle the 
Bering Sea controversy, the treaty establishing the boundary line 
between Canada and Alaska, were negotiated by commissions containing 
Senators and Representatives.

        \460\See 2 G. Hoar, Autobiography of Seventy Years (New York: 
1903), 48-51.


[[Page 512]]
      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 for 
carrying into execution the powers which the Constitution confers upon 
the government of the United States and its departments and 
officers.\461\ As an incident to the establishment of an office, 
Congress has also the power to determine the qualifications of the 
officer and in so doing necessarily limits the range of choice of the 
appointing power. First and last, it has laid down a great variety of 
qualifications, depending on citizenship, residence, professional 
attainments, occupational experience, age, race, property, sound habits, 
and so on. It has required that appointees be representative of a 
political party, of an industry, of a geographic region, or of a 
particular branch of the Government. It has confined the President's 
selection to a small number of persons to be named by others.\462\ 
Indeed, it has contrived at times to designate a definite eligibility, 
thereby virtually usurping the appointing power.\463\ De

[[Page 513]]
spite the record of the past, however, it is not at all clear that 
Congress may cabin the President's discretion, at least for offices that 
he considers important, by, for example, requiring him to choose from 
lists compiled by others. To be sure, there are examples, but they are 
not free of ambiguity.\464\

        \461\However, ``Congress' power . . . is inevitably bounded by 
the express language of Article II, cl. 2, and unless the method it 
provides comports with the latter, the holders of those offices will not 
be `Officers of the United States.''' Buckley v. Valeo, 424 U.S. 1, 138-
139 (1976) (quoted in Freytag v. CIR, 501 U.S. 868, 883 (1991)).
        \462\See Myers v. United States, 272 U.S. 52, 264-274 (1926) 
(Justice Brandeis dissenting). Chief Justice Taft in the opinion of the 
Court in Myers readily recognized the legislative power of Congress to 
establish offices, determine their functions and jurisdiction, fix the 
terms of office, and prescribe reasonable and relevant qualifications 
and rules of eligibility of appointees, always provided ``that the 
qualifications do not so limit selection and so trench upon executive 
choice as to be in effect legislative designation.'' Id., 128-129. For 
reiteration of Congress' general powers, see Buckley v. Valeo, 424 U.S. 
1, 134-135 (1976); Morrison v. Olson, 487 U.S. 654, 673-677 (1988). And 
see United States v. Ferriera, 13 How. (54 U.S.) 40, 51 (1851).
        \463\See data in E. Corwin, op. cit., n.44, 363-365. Congress 
has repeatedly designated individuals, sometimes by name, more 
frequently by reference to a particular office, for the performance of 
specified acts or for posts of a nongovernmental character; e.g., to 
paint a picture (Jonathan Trumbull), to lay out a town, to act as 
Regents of Smithsonian Institution, to be managers of Howard Institute, 
to select a site for a post office or a prison, to restore the 
manuscript of the Declaration of Independence, to erect a monument at 
Yorktown, to erect a statue of Hamilton, and so on and so forth. Note, 
Power of Appointment to Public Office under the Federal Constitution, 42 
Harv. L. Rev. 426, 430-431 (1929). In his message of April 13, 1822, 
President Monroe stated the thesis that, ``as a general principle, . . . 
Congress have no right under the Constitution to impose any restraint by 
law on the power granted to the President so as to prevent his making a 
free selection of proper persons for these [newly created] offices from 
the whole body of his fellow-citizens.'' 2 J. Richardson, op. cit., 
n.42, 698, 701. The statement is ambiguous, but its apparent intention 
is to claim for the President unrestricted power in determining who are 
proper persons to fill newly created offices. See the distinction drawn 
in Myers v. United States, 272 U.S. 52, 128-129 (1926), quoted, op. 
cit., n.462. And note that in Public Citizen v. U. S. Dept. of Justice, 
491 U.S. 440, 482-489 (1989) (concurring), Justice Kennedy suggested the 
President has sole and unconfined discretion in appointing).
        \464\The Sentencing Commission, upheld in Mistretta v. United 
States, 488 U.S. 361 (1989), numbered among its members three federal 
judges; the President was to select them ``after considering a list of 
six judges recommended to the President by the Judicial Conference of 
the United States.'' Id., 397 (quoting 28 U.S.C. Sec. 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. Sec. 703(a)(2)). In Metropolitan 
Washington Airports Authority v. Citizens for the Abatement of Aircraft 
Noise, Inc., 501 U.S. 252, 268-269 (1991), the Court carefully 
distinguished these examples from the particular situation before it 
that it condemned, but see id., 288 (Justice White dissenting), and in 
any event it never actually passed on the list devices in Mistretta and 
Synar. The fault in Airports Authority was not the validity of lists 
generally, the Court condemning the device there as giving Congress 
control of the process, in violation of Buckley v. Valeo.

        But when Congress contrived actually to participate in the 
appointment and administrative process and provided for selection of the 
members of the Federal Election Commission, two by the President, two by 
the Senate, and two by the House, with confirmation of all six members 
vested in both the House and the Senate, the Court unanimously held the 
scheme to violate the appointments clause and the principles of 
separation of powers. The term ``officers of the United States'' is a 
substantive one requiring that any appointee exercising significant 
authority pursuant to the laws of the United States be appointed in the 
manner prescribed by the appointments clause.\465\ The Court did hold, 
however, that the Commission so appointed and confirmed could be 
delegated the powers Congress itself could exercise, that is, those 
investigative and informative functions that congressional committees 
carry out were properly vested in this body.

        \465\Buckley v. Valeo, 424 U.S. 1, 109-143 (1976). The Court 
took pains to observe that the clause was violated not only by the 
appointing process but by the confirming process, inclusion of the House 
of Representatives, as well. Id., 137. See also Metropolitan Washington 
Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 
501 U.S. 252 (1991).

        Congress is authorized by the appointments clause to vest the 
appointment of ``inferior Officers,'' at its discretion, ``in the 
President alone, in the Courts of Law, or in the Heads of Departments.'' 
Principal questions arising under this portion of the clause are ``Who 
are `inferior officers,''' and ``what are the ``Departments'' whose 
heads may be given appointing power?\466\ ``[A]ny appointee

[[Page 514]]
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 Sec. 2, cl. 2, of [Article 
II].''\467\ ``The Constitution for purposes of appointment very clearly 
divides all its officers into two classes. The primary class requires a 
nomination by the President and confirmation by the Senate. But 
foreseeing that when offices became numerous, and sudden removals 
necessary, this mode might be inconvenient, it was provided that, in 
regard to officers inferior to those specially mentioned, Congress might 
by law vest their appointment in the President alone, in the courts of 
law, or in the heads of departments. That all persons who can be said to 
hold an office under the government about to be established under the 
Constitution were intended to be included within one or the other of 
these modes of appointment there can be but little doubt.''\468\

        \466\Concurrently, of course, although it may seem odd, the 
question of what is a ``Court[] of Law'' for purposes of the 
appointments clause is unsettled. See Freytag 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).
        \467\Freytag v. CIR, 501 U.S.868, 881 (1991) (quoting Buckley v. 
Valeo, 424 U.S. 1, 126 (1976)).
        \468\United States v. Germaine, 99 U.S. 508, 509-510 (1879) 
(quoted in Buckley v. Valeo, 424 U.S. 1, 125 (1976)). The constitutional 
definition of an ``inferior'' officer is wondrously imprecise. See 
Freytag v. CIR, 501 U.S. 868, 880-882 (1991); Morrison v. Olson, 487 
U.S. 654, 670-673 (1988). And see United States v. Eaton, 169 U.S. 331 
(1898). There is another category, of course, employees, but these are 
lesser functionaries subordinate to officers of the United States. 
Ordinarily, the term ``employee'' denotes one who stands in a 
contractual relationship to her employer, but here it signifies all 
subordinate officials of the Federal Government receiving their 
appointments at the hands of officials who are not specifically 
recognized by the Constitution as capable of being vested by Congress 
with the appointing power. Auffmordt v. Hedden, 137 U.S. 310, 327 
(1890). See Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-
353 (1931); Burnap v. United States, 252 U.S. 512, 516-517 (1920); 
Germaine, supra, 511-512.

        Thus, officers who are not ``inferior Officers'' must be 
appointed by the President with the advice and consent of the Senate in 
order to make sure that all the business of the Executive will be 
conducted under the supervision of officers appointed by the President 
with Senate approval, i.e., principal officers.\469\ Further, the 
Framers intended to limit the ``diffusion'' of the appointing power with 
respect to inferior officers in order to promote accountability. ``The 
Framers understood . . . that by limiting the appointment power, they 
could ensure that those who wielded it were accountable to political 
force and the will of the people. . . . The Appointments Clause prevents 
Congress from distributing power too widely by limiting the actors in 
whom Congress may vest the power to appoint. The Clause reflects our 
Framers' conclusion that widely distributed appointment power subverts 
democratic government. given the inexorable presence of the 
administrative state, a holding that

[[Page 515]]
every organ in the executive Branch is a department would multiply the 
number of actors eligible to appoint.''\470\

        \469\Freytag v. CIR, 501 U.S. 868, 919 (1991) (Justice Scalia 
        \470\Freytag v. CIR, 501 U.S. 868, 884-885 (1991).

        Yet, even agreed on the principle, the Freytag Court split 5-to-
4 on the reason for the permissibility of the Chief Judge of the Tax 
Court to appoint special trial judges. The entire Court agreed that the 
Tax Court had to be either a ``department'' or a ``court of law'' in 
order for the authority to be exercised by the Chief Judge, and it 
unanimously agreed that the statutory provision was constitutional. But, 
there, agreement ended. The majority was of the opinion that the Tax 
Court could not be a department, but it was unclear what those Justices 
thought a department comprehended. Seemingly, it started from the 
premise that departments were those parts of the executive establishment 
called departments and headed by a cabinet officer.\471\ Yet, the Court 
continued immediately to say: ``Confining the term ``Heads of 
Departments'' in the Appointments Clause to executive divisions like the 
Cabinet-level departments constrains the distribution of the appointment 
power just as the [IRS] Commissioner's interpretation, in contrast, 
would diffuse it. The Cabinet-level departments are limited in number 
and easily identified. The heads are subject to the exercise of 
political oversight and share the President's accountability to the 
people.''\472\ The use of the word ``like'' in this passage suggests 
that it is not just Cabinet-headed departments that are departments but 
as well entities that are similar to them in some way, and its 
reservation of the validity of investing appointing power in the heads 
of some named entities, as well as its observation that the term ``Heads 
of Departments'' does not embrace ``inferior commissioners and bureau 
officers'' all contribute to an amorphous conception of the term.\473\ 
In the end, the Court sustained the challenged provision by holding that 
the Tax Court as an Article I court was a ``Court of Law'' within the 
meaning of the appointments clause.\474\ The other four Justices 
concluded that the Tax Court, as an independent establishment in the 
executive branch, was a ``department'' for purposes of the appointments 
clause. In their view, in the context of text and practice, the term 
meant, not Cabinet-level departments, but ``all independent executive 
establishments,'' so that ```Heads of Departments' includes the heads of 
all agencies im

[[Page 516]]
mediately below the President in the organizational structure of the 
Executive Branch.''\475\

        \471\Id., 886 (citing Germaine and Burnap, the opinion clause, 
Article II, Sec. 2, and the 25th Amendment, which, in its Sec. 4, 
referred to ``executive departments'' in a manner that reached only 
cabinet-level entities). But compare id., 915-922 (Justice Scalia 
        \472\Id., 886(emphasis supplied).
        \473\Id., 886-888. Compare id., 915-919 (Justice Scalia 
        \474\Id., 888-892. This holding was vigorously controverted by 
the other four Justices. Id., 901-914(Justice Scalia concurring).
        \475\Id., 918, 919 (Justice Scalia concurring).

        The Freytag decision must be considered a tentative rather than 
a settled construction. The close division of the Court means that new 
appointments, some of which have already occurred, could change the 
construction. Further guidance must be awaited.

        As noted, the appointments clause also authorizes Congress to 
vest the power in ``Courts of Law.'' Must the power to appoint when 
lodged in courts be limited to those officers acting in the judicial 
branch, as the Court first suggested?\476\ But in Ex parte Siebold,\477\ 
the Court sustained Congress' decision to vest the appointment of 
federal election supervisors, charged with preventing fraud and rights 
violations in congressional elections in the South, in courts and 
disavowed any thought that interbranch appointments could not be 
authorized under the clause. A special judicial division was authorized 
to appoint independent counsels to investigate and, if necessary, 
prosecute charges of corruption in the executive, and the Court, in near 
unanimity, sustained the law, denying that interbranch appointments, in 
and of themselves, and leaving aside more precise separation-of-powers 
claims, were improper under the clause.\478\

        \476\Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839). The 
suggestion was that inferior officers are intended to be subordinate to 
those in whom their appointment is vested. Id., 257-258; United States 
v. Germaine, 99 U.S. 508, 509 (1879).
        \477\100 U.S. 371 (1880).
        \478\Morrison v. Olson, 487 U.S. 654, 673-677 (1988). See also 
Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787 
(1987) (appointment of private attorneys to act as prosecutors for 
judicial contempt judgments); Freytag v. CIR, 501 U.S. 868, 888-892 
(1991) (appointment of special judges by Chief Judge of Tax Court).

        Congressional Regulation of Conduct in Office.--Congress has 
very broad powers in regulating the conduct in office of officers and 
employees of the United States, especially regarding their political 
activities. By an act passed in 1876, it prohibited ``all executive 
officers or employees of the United States not appointed by the 
President, with the advice and consent of the Senate, . . . from 
requesting, giving to, or receiving from, any other officer or employee 
of the Government, any money or property or other thing of value for 
political purposes.''\479\ The validity of this measure having been 
sustained,\480\ the substance of it, with some elaborations, was in

[[Page 517]]
corporated in the Civil Service Act of 1883.\481\ The Lloyd-La Follette 
Act in 1912 began the process of protecting civil servants from 
unwarranted or abusive removal by codifying ``just cause'' standards 
previously embodied in presidential orders, defining ``just causes'' as 
those that would promote the ``efficiency of the service.''\482\ 
Substantial changes in the civil service system were instituted by the 
Civil Service Reform Act of 1978, which abolished the Civil Service 
Commission, and divided its responsibilities, its management and 
administrative duties to the Office of Personnel Management and its 
review and protective functions to the Merit Systems Protection 

        \479\19 Stat. 143, 169 (1876).
        \480\Ex parte Curtis, 106 U.S. 371 (1882). Chief Justice Waite's 
opinion extensively reviews early congressional legislation regulative 
of conduct in office. Id., 372-373.
        \481\22 Stat. 403 (the Pendleton Act). On this law and 
subsequent enactments that created the civil service as a professional 
cadre of bureaucrats insulated from politics, see Developments in the 
Law - Public Employment, 97 Harv. L. Rev. 1611, 1619-1676 (1984).
        \482\Act of Aug. 24, 1912, Sec. 6, 37 Stat. 539, 555, codified 
as amended at 5 U.S.C. Sec. 7513. The protection was circumscribed by 
the limited enforcement mechanisms under the Civil Service Commission, 
which were gradually strengthened. See id., n.481, 97 Harv. L. Rev., 
        \483\92 Stat. 1111 (codified in scattered sections of titles 5, 
10, 15, 28, 31, 38, 39, and 42 U.S.C.). For the long development, see 
id., n.481, 97 Harv. L. Rev., 1632-1650.

        By the Hatch Act,\484\ all persons in the executive branch of 
the Government, or any department or agency thereof, except the 
President and Vice President and certain ``policy determining'' 
officers, were forbidden to ``take an active part in political 
management or political campaigns,'' although they were still permitted 
to ``express their opinions on all political subjects and candidates.'' 
In United Public Workers v. Mitchell,\485\ these provisions were upheld 
as ``reasonable'' against objections based on the First, Fifth, Ninth, 
and Tenth Amendments.

        \484\54 Stat. 767 (1940), then 5 U.S.C. Sec. 7324(a). By P. L. 
103-94, Sec. Sec. 2(a), 12, 107 Stat. 1001, 1011, to be codified at 5 
U.S.C. Sec. Sec. 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, 
Sec. 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, Sec. 401(a), 88 Stat. 1290, 5 U.S.C. 
Sec. 1502.
        \485\330 U.S. 75 (1947). See also CSC. v. National Assn. of 
Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack 
was renewed, in large part based on the Court's expanding jurisprudence 
of First Amendment speech, but the Act was again sustained. A ``little 
Hatch Act'' of a State, applying to its employees, was sustained in 
Broadrick v. Oklahoma, 413 U.S. 601 (1973).

        The Loyalty Issue.--By Sec. 9A of the Hatch Act of 1939, federal 
employees were disqualified from accepting or holding any position in 
the Government or the District of Columbia, if they belonged to an 
organization that he knew advocated, the overthrow of our constitutional 
form of government.\486\ The 79th Congress followed up

[[Page 518]]
this provision with a rider to its appropriation acts forbidding the use 
of any appropriated funds to pay the salary of any person who advocated, 
or belonged to an organization which advocated, the overthrow of the 
Government by force, or of any person who engaged in a strike or who 
belonged to an organization which asserted the right to strike against 
the Government.\487\ These provisos ultimately wound up in permanent law 
requiring all government employees to take oaths disclaiming either 
disloyalty or strikes as a device for dealing with the Government as an 
employer.\488\ Along with the loyalty-security programs initiated by 
President Truman\489\ and carried forward by President Eisenhower,\490\ 
these measures reflected the Cold War era and the fear of subversion and 
espionage following the disclosures of several such instances here and 

        \486\53 Stat. 1147, 5 U.S.C. Sec. 7311.
        \487\See Report of the Special Committee on The Federal Loyalty-
Security Program, The Association of the Bar of the City of New York 
(New York: 1956), 60.
        \488\5 U.S.C. Sec. 3333. The loyalty disclaimer oath was 
declared unconstitutional in Stewart v. Washington, 301 F. Supp. 610 
(D.C.D.C. 1969), and the Government elected not to appeal. The strike 
disclaimer oath was voided in National Association of Letter Carriers v. 
Blount, 305 F. Supp, 546 (D.C.D.C. 1969); after noting probable 
jurisdiction, 397 U.S. 1062 (1970), the Court dismissed the appeal on 
the Government's motion. 400 U.S. 801 (1970). The actual prohibition on 
strikes, however, has been sustained. United Federation of Postal Clerks 
v. Blount, 325 F. Supp. 879 (D.C.D.C. 1971), affd. per curiam, 404 U.S. 
802 (1971).
        \489\E.O. 9835, 12 Fed. Reg. 1935 (1947).
        \490\E.O. 10450, 18 Fed. Reg. 2489 (1953).
        \491\See 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).

        Financial Disclosure and Limitations.--By the Ethics in 
Government Act of 1978,\492\ Congress required high-level federal 
personnel to make detailed, annual disclosures of their personal 
financial affairs.\493\ The aims of the legislation are to enhance 
public confidence in government, to demonstrate the high level of 
integrity of government employees, to deter and detect conflicts and 
interests, to discourage individuals with questionable sources of income 
from entering government, and to facilitate public appraisal of 
government employees' performance in light of their personal financial 
interests.\494\ Despite the assertions of some that employee privacy 
interests are needlessly invaded by the breadth of disclosures, to date 
judicial challenges have been unsuccessful, absent

[[Page 519]]
even a Supreme Court review.\495\ One provision, however, has generated 
much opposition and invalidation, so far, in the courts. Under 
Sec. 501(b) of the Ethics in Government Act,\496\ there is imposed a ban 
on Members of Congress or any officer or employee of the Government, 
regardless of salary level, taking any ``honorarium,'' which is defined 
as ``a payment of money or anything of value for an appearance, speech 
or article (including a series of appearances, speeches, or articles if 
the subject matter is directly related to the individual's official 
duties or the payment is made because of the individual's status with 
the Government) . . . .''\497\ The statute, even interpreted in 
accordance with the standards applicable to speech restrictions on 
government employees, has been held to be overbroad and not sufficiently 
tailored to serve the governmental interest to be promoted by it.\498\ 
Only a Supreme Court review, of course, will finally resolve the matter.

        \492\P. L. 95-521, tits. I-III, 92 Stat. 1824-1861. The Act was 
originally codified in three different titles, 2, 5, and 28, 
corresponding to legislative, executive, and judicial branch personnel, 
but by P. L. 101-194, title II, 103 Stat. 1725 (1989), one comprehensive 
title, as amended, applying to all covered federal personnel was 
enacted. 5 U.S.C.App. Sec. Sec. 101-111.
        \493\See op. cit., n.481, 97 Harv. L. Rev., 1660-1669.
        \494\Id., 1661 (citing S. Rept. 170, 95th Cong., 2d sess. 
(1978), 21-22).
        \495\Id., 1664-1669. The Ethics Act also expanded restrictions 
on postemployment by imposing bans on employment, varying from a brief 
period to an out-and-out lifetime ban in certain cases. Id., 1669-1676. 
The 1989 revision enlarged and expanded on these provisions. 103 Stat. 
1716-1724, amending 18 U.S.C. Sec. 207.
        \496\92 Stat. 1864 (1978), as amended, 103 Stat. 1760 (1989), as 
amended, 5 U.S.C.App. Sec. Sec. 501-505.
        \497\5 U.S.C.App. Sec. 505(3).
        \498\NTEU v. United States, 990 F.2d 1271 (D.C.Cir.), pet. for 
reh. en banc den., 3 F.3d 1555 (D.C.Cir. 1993).

        Legislation Increasing Duties of an Officer.--Finally, Congress 
may devolve upon one already in office additional duties which are 
germane to his office without thereby ``rendering it necessary that the 
incumbent should be again nominated and appointed.'' Such legislation 
does not constitute an attempt by Congress to seize the appointing 

        \499\Shoemaker v. United States, 147 U.S. 282, 301 (1893).
      Stages of Appointment Process

        Nomination.--The Constitution appears to distinguish three 
stages in appointments by the President with the advice and consent of 
the Senate. The first is the ``nomination'' of the candidate by the 
President alone; the second is the assent of the Senate to the 
candidate's ``appointment;'' and the third is the final appointment and 
commissioning of the appointee, by the President.\500\

        \500\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 155-156 (1803) 
(Chief Justice Marshall). Marshall's statement that the appointment ``is 
the act of the President,'' conflicts with the more generally held and 
sensible view that when an appointment is made with its consent, the 
Senate shares the appointing power. 3 J. Story, Commentaries on the 
Constitution of the United States (Boston: 1833), 1525; Matter of 
Hennen, 13 Pet. (38 U.S.) 230, 259 (1839).

        Senate Approval.--The fact that the power of nomination belongs 
to the President alone prevents the Senate from attaching

[[Page 520]]
conditions to its approval of an appointment, such as it may do to its 
approval of a treaty. In the words of an early opinion of the Attorney 
General: ``The Senate cannot originate an appointment. Its 
constitutional action is confined to the simple affirmation or rejection 
of the President's nominations, and such nominations fail whenever it 
rejects them. The Senate may suggest conditions and limitations to the 
President, but it cannot vary those submitted by him, for no appointment 
can be made except on his nomination, agreed to without qualifications 
or alteration.''\501\ This view is borne out by early opinion,\502\ as 
well as by the record of practice under the Constitution.

        \501\3 Ops. Atty. Gen. 188 (1837).
        \502\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1525-1526; 5 Works of Thomas Jefferson, P. Ford 
ed., (New York: 1904), 161-162; 9 Writings of James Madison, G. Hunt ed. 
(New York: 1910), 111-113.

        When Senate Consent Is Complete.--Early in January, 1931, the 
Senate requested President Hoover to return its resolution notifying him 
that it advised and consented to certain nominations to the Federal 
Power Commission. In support of its action the Senate invoked a long-
standing rule permitting a motion to reconsider a resolution confirming 
a nomination within ``the next two days of actual executive session of 
the Senate'' and the recall of the notification to the President of the 
confirmation. The nominees involved having meantime taken the oath of 
office and entered upon the discharge of their duties, the President 
responded with a refusal, saying: ``I cannot admit the power in the 
Senate to encroach upon the executive functions by removal of a duly 
appointed executive officer under the guise of reconsideration of his 
nomination.'' The Senate thereupon voted to reconsider the nominations 
in question, again approving two of the nominees, but rejecting the 
third, against whom it instructed the District Attorney of the District 
of Columbia to institute quo warranto proceedings in the Supreme Court 
of the District. In United States v. Smith,\503\ the Supreme Court 
overruled the proceedings on the ground that the Senate had never before 
attempted to apply its rule in the case of an appointee who had already 
been installed in office on the faith of the Senate's initial consent 
and notification to the President. In 1939, the late President Roosevelt 
rejected a similar demand by the Senate, an action that was 

        \503\286 U.S. 6 (1932).
        \504\E. Corwin, op. cit., n.44, 77.

  Section 3. The President * * * shall Commission all the Officers of 
the United States.

[[Page 521]]

        Commissioning the Officer.--This, as applied in practice, does 
not mean that he is under constitutional obligation to commission those 
whose appointments have reached that stage but merely that it is he and 
no one else who has the power to commission them, which he may do at his 
discretion. The sealing and delivery of the commission is, on the other 
hand, by the doctrine of Marbury v. Madison, in the case both of 
appointee by the President and Senate and by the President alone, a 
purely ministerial act which has been lodged by statute with the 
Secretary of State and the performance of which may be compelled by 
mandamus unless the appointee has been in the meantime validly 
removed.\505\ By an opinion of the Attorney General many years later, 
however, the President, even after he has signed a commission, still has 
a locus poenitentiae and may withhold it; nor is the appointee in office 
till he has this commission.\506\ This is probably the correct 

        \505\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 157-158, 173 
        \506\12 Ops. Atty. Gen. 306 (1867).
        \507\It should be remembered that, for various reasons, Marbury 
got neither commission nor office. The case assumes, in fact, the 
necessity of possession of his commission by the appointee.

                               ARTICLE II

                          EXECUTIVE DEPARTMENT


  Clause 3. The President shall have Power to fill up all Vacancies that 
may happen during the Recess of the Senate, by granting Commissions 
which shall expire at the End of their next Session.
      Recess Appointments

        Setting out from the proposition that the very nature of the 
executive power requires that it shall always be ``in capacity for 
action,'' Attorneys General early came to interpret ``happen'' to mean 
``happen to exist,'' and long continued practice securely establishes 
this construction. It results that whenever a vacancy may have occurred 
in the first instance, or for whatever reason, if it still continues 
after the Senate has ceased to sit and so cannot be consulted, the 
President may fill it in the way described.\508\ But a Senate ``recess'' 
does not include holidays, or very brief temporary adjourn

[[Page 522]]
ments,\509\ while by an act of Congress, if the vacancy existed when the 
Senate was in session, the ad interim appointee, subject to certain 
exemptions, may receive no salary until he has been confirmed by the 

        \508\See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 
(1832); 3:673 (1841); 4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 
(1866); 12:455 (1868); 14:563 (1875); 15:207 (1877); 16:523 (1880); 
18:28 (1884); 19:261 (1889); 26:234 (1907); 30:314 (1914); 33:20 (1921). 
In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not 
to apply to a yet unfilled office which was created during the previous 
session of Congress, but this distinction was rejected in the following 
Ops. Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In 
harmony with the opinions is United States v. Allocco, 305 F.2d 704 (2d 
Cir. 1962). For the early practice with reference to recess 
appointments, see 2 G. Haynes, The Senate of the United States, (Boston: 
1938), 772-778.
        \509\23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 
(1898). How long a ``recess'' must be to be actually a recess, a 
question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 
314 (1979). A ``recess,'' however, may be merely ``constructive,'' as 
when a regular session succeeds immediately upon a special session. It 
was this kind of situation that gave rise to the once famous Crum 
incident. See 3 W. Willoughby, op. cit., n.294, 1508-1509.
        \510\5 U.S.C. Sec. 5503. The provision has been on the books, in 
somewhat stricter form, since 12 Stat. 646 (1863).

        Judicial Appointments.--Federal judges clearly fall within the 
terms of the recess-appointments clause. But, unlike with other offices, 
a problem exists. Article III judges are appointed ``during good 
behavior,'' subject only to removal through impeachment. A judge, 
however, who is given a recess appointment may be ``removed'' by the 
Senate's failure to advise and consent to his appointment; moreover, on 
the bench, prior to Senate confirmation, she may be subject to influence 
not felt by other judges. Nonetheless, a constitutional attack upon the 
status of a federal district judge, given a recess appointment and then 
withdrawn as a nominee, was rejected by a federal court.\511\

        \511\United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en 
banc), cert. den., 475 U.S. 1048 (1986). The opinions in the court of 
appeals provide a wealth of data on the historical practice of giving 
recess appointments to judges, including the developments in the 
Eisenhower Administration, when three Justices, Warren, Brennan, and 
Stewart, were so appointed and later confirmed after participation on 
the Court. The Senate in 1960 adopted a ``sense-of-the-Senate'' 
resolution suggesting the practice was not a good idea. 106 Cong. Rec. 
18130-18145 (1960).

        Ad Interim Designations.--To be distinguished from the power to 
make recess appointments is the power of the President to make temporary 
or ad interim designations of officials to perform the duties of other 
absent officials. Usually such a situation is provided for in advance by 
a statute which designates the inferior officer who is to act in place 
of his immediate superior. But in the lack of such provision, both 
theory and practice concede the President the power to make the 

        \512\See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 
(1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).
      The Removal Power

        The Myers Case.--Save for the provision which it makes for a 
power of impeachment of ``civil officers of the United States,'' the 
Constitution contains no reference to a power to remove from office, and 
until its decision in Myers v. United States,\513\ on October 25, 1926, 
the Supreme Court had contrived to side-step every occasion

[[Page 523]]
for a decisive pronouncement regarding the removal power, its extent, 
and location. The point immediately at issue in the Myers case was the 
effectiveness of an order of the Postmaster General, acting by direction 
of the President, to remove from office a first-class 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\

        \513\272 U.S. 52 (1926).
        \514\19 Stat. 78, 80.

        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

[[Page 524]]
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\

        \515\Id., 272 U.S., 163-164.

        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

[[Page 525]]
his prepossession was a rule which, as was immediately pointed out, 
exposed the so-called ``independent agencies,'' the Interstate Commerce 
Commission, the Federal Trade Commission, and the like, to presidential 
domination.Unfortunately, the Chief Justice, while professing to follow 
Madison's leadership, had omitted to weigh properly the very important 
observation which the latter had made at the time regarding the office 
of Comptroller of the Treasury. ``The Committee,'' said Madison, ``has 
gone through the bill without making any provision respecting the tenure 
by which the comptroller is to hold his office. I think it is a point 
worthy of consideration, and shall, therefore, submit a few observations 
upon it. It will be necessary to consider the nature of this office, to 
enable us to come to a right decision on the subject; in analyzing its 
properties, we shall easily discover they are of a judiciary quality as 
well as the executive; perhaps the latter obtains in the greatest 
degree. The principal duty seems to be deciding upon the lawfulness and 
justice of the claims and accounts subsisting between the United States 
and particular citizens: this partakes strongly of the judicial 
character, and there may be strong reasons why an officer of this kind 
should not hold his office at the pleasure of the executive branch of 
the government.''\518\ In Humphrey's Executor v. United States,\519\ the 
Court seized upon ``the nature of the office'' concept and applied it as 
a corrective to the overbroad Myers holding.

        \516\The reticence of the Constitution respecting removal left 
room for four possibilities: first, the one suggested by the common law 
doctrine of ``estate in office,'' from which the conclusion followed 
that the impeachment power was the only power of removal intended by the 
Constitution; second, that the power of removal was an incident of the 
power of appointment and hence belonged, at any rate in the absence of 
legal or other provision to the contrary, to the appointing authority; 
third, that Congress could, by virtue of its power ``to make all laws 
which shall be necessary and proper,'' etc., determine the location of 
the removal power; fourth, that the President by virtue of his 
``executive power'' and his duty ``to take care that the laws be 
faithfully executed,'' possesses the power of removal over all officers 
of the United States except judges. In the course of the debate on the 
act to establish a Department of Foreign Affairs (later changed to 
Department of State) all of these views were put forward, with the final 
result that a clause was incorporated in the measure that implied, as 
pointed out above, that the head of the department would be removable by 
the President at his discretion. Contemporaneously, and indeed until 
after the Civil War, this action by Congress, in other words ``the 
decision of 1789,'' was interpreted as establishing ``a practical 
construction of the Constitution'' with respect to executive officers 
appointed without stated terms. However, in the dominant opinion of 
those best authorized to speak on the subject, the ``correct 
interpretation'' of the Constitution was that the power of removal was 
always an incident of the power of appointment, and that therefore in 
the case of officers appointed by the President with the advice and 
consent of the Senate the removal power was exercisable by the President 
only with the advice and consent of the Senate. For an extensive review 
of the issue at the time of Myers, see Corwin, The President's Removal 
Power Under the Constitution, in 4 Selected Essays on Constitutional Law 
(Chicago: 1938), 1467.
        \517\Id., 272 U.S., 134. Note the parallelism of the arguments 
from separation-of-powers and the President's ability to enforce the 
laws in the decision rendered on Congress' effort to obtain a role in 
the actual appointment of executive officers in Buckley v. Valeo, 424 
U.S. 1, 109-143 (1976), and in many of the subsequent separation-of-
powers decisions.
        \518\Annals of Congress 611-612 (1789).
        \519\295 U.S. 602 (1935). The case is also styled Rathbun, 
Executor v. United States, Humphrey having, like Myers before him, died 
in the course of his suit for salary. Proponents of strong presidential 
powers long argued that Humphrey's Executor, like A.L.A. Schechter 
Poultry Corp. v. United States, 295 U.S. 495 (1935), both cases argued 
and decided contemporaneously, reflected the anti-New Deal views of a 
conservative Court and wrongfully departed from Myers. See Scalia, 
Historical Anomalies in Administrative Law, 1985 Yearbook of the Supreme 
Court Historical Society 103, 106-110. Now-Justice Scalia continues to 
adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697, 
707-711, 723-727 (1988) (dissenting).

        The Humphrey Case.--The material element of this case was that 
Humphrey, a member of the Federal Trade Commission, was on October 7, 
1933, notified by President Roosevelt that he was ``removed'' from 
office, the reason being their divergent views of public policy. In due 
course, Humphrey sued for salary. Distinguishing the Myers case, Justice 
Sutherland, speaking for the unanimous Court, said: ``A postmaster is an 
executive officer restricted to the performance of executive functions. 
He is charged with no duty at all related to either the legislative or 
judicial power. The actual decision in the Myers case finds support in 
the theory that such an office is merely one of the units in the 
executive department and, hence, inherently subject to the exclusive and 
illimitable power of

[[Page 526]]
removal by the Chief Executive, whose subordinate and aide he is. . . . 
It goes no farther; much less does it include an officer who occupies no 
place in the executive department and who exercises no part of the 
executive power vested by the Constitution in the President.

        ``The Federal Trade Commission is an administrative body created 
by Congress to carry into effect legislative policies embodied in the 
statute. . . . Such a body cannot in any proper sense be characterized 
as an arm or eye of the executive. Its duties are performed without 
executive leave and, in the contemplation of the statute, must be free 
from executive control. . . . We think it plain under the Constitution 
that illimitable power of removal is not possessed by the President in 
respect of officers of the character of those just named, [the 
Interstate Commerce Commission, the Federal Trade Commission, the Court 
of Claims]. The authority of Congress, in creating quasi-legislative or 
quasi-judicial agencies, to require them to act in discharge of their 
duties independently of executive control cannot well be doubted; and 
that authority includes, as an appropriate incident, power to fix the 
period during which they shall continue in office, and to forbid their 
removal except for cause in the meantime. For it is quite evident that 
one who holds his office only during the pleasure of another, cannot be 
depended upon to maintain an attitude of independence against the 
latter's will. . . .

        ``The result of what we now have said is this: Whether the power 
of the President to remove an officer shall prevail over the authority 
of Congress to condition the power by fixing a definite term and 
precluding a removal except for cause, will depend upon the character of 
the office; the Myers decision, affirming the power of the President 
alone to make the removal, is confined to purely executive officers; and 
as to officers of the kind here under consideration, we hold that no 
removal can be made during the prescribed term for which the officer is 
appointed, except for one or more of the causes named in the applicable 

        \520\Id., 295 U.S., 627-629, 631-632. Justice Sutherland's 
statement, quoted above, that a Federal Trade Commissioner ``occupies no 
place in the executive department'' was not necessary to the decision of 
the case, was altogether out of line with the same Justice's reasoning 
in Springer v. Philippine Islands, 277 U.S. 189, 201-202 (1928), and 
seems later to have caused the author of it much perplexity. See R. 
Cushman, The Independent Regulatory Commission (New York: 1941), 447-
448. As Professor Cushman adds: ``Every officer and agency created by 
Congress to carry laws into effect is an arm of Congress. . . . The term 
may be a synonym; it is not an argument.'' Id., 451.

        The Wiener Case.--Curtailment of the President's power of 
removal, so liberally delineated in the Myers decision, was not to

[[Page 527]]
end with the Humphrey case. Unresolved by the latter was the question 
whether the President, absent a provision expressly delimiting his 
authority in the statute creating an agency endowed with quasi-judicial 
functions, remained competent to remove members serving thereon. To this 
query the Court supplied a negative answer in Wiener v. United 
States.\521\ Emphasizing therein that the duties of the War Claims 
Commission were wholly adjudicatory and its determinations, final and 
exempt from review by any other official or judicial body, the Court 
unanimously concluded that inasmuch as the President was unable to 
supervise its activities, he lacked the power, independently of 
statutory authorization, to remove a commissioner serving thereon whose 
term expired with the life of that agency.

        \521\357 U.S. 349 (1958).

        The Watergate Controversy.--A dispute arose regarding the 
discharge of the Special Prosecutor appointed to investigate and 
prosecute violations of law in the Watergate matter. Congress vested in 
the Attorney General the power to conduct the criminal litigation of the 
Federal Government,\522\ and it further authorized him to appoint 
subordinate officers to assist him in the discharge of his duties.\523\ 
Pursuant to presidential direction, the Attorney General designated a 
Watergate Special Prosecutor with broad power to investigate and 
prosecute offenses arising out of the Watergate break-in, the 1972 
presidential election, and allegations involving the President, members 
of the White House staff, or presidential appointees. He was to remain 
in office until a date mutually agreed upon between the Attorney General 
and himself, and the regulations provided that the Special Prosecutor 
``will not be removed from his duties except for extraordinary 
improprieties on his part.''\524\ On October 20, following the 
resignations of the Attorney General and the Deputy Attorney General, 
the Solicitor General as Acting Attorney General formally dismissed the 
Special Prosecutor\525\ and three days later rescinded the regulation 
establishing the office.\526\ In subsequent litigation, it was held, by 
a federal district court, that the firing by the Acting Attorney General 
had vio

[[Page 528]]
lated the regulations, which were in force at the time and which had to 
be followed until they were rescinded.\527\ The Supreme Court in United 
States v. Nixon\528\ seemed to confirm this analysis by the district 
court in upholding the authority of the new Special Prosecutor to take 
the President to court to obtain evidence in the President's possession. 
Left unsettled were two questions, the power of the President himself to 
go over the heads of his subordinates and to fire the Special Prosecutor 
himself, whatever the regulations said, and the power of Congress to 
enact legislation establishing an Office of Special Prosecutor free from 
direction and control of the President.\529\ When Congress acted to 
create an office, first called the Special Prosecutor and then the 
Independent Counsel, resolution of the question became necessary.

        \522\28 U.S.C. Sec. 516.
        \523\28 U.S.C. Sec. Sec. 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.
        \525\The formal documents effectuating the result are set out in 
9 Wkly. Comp. of Pres. Docs. 1271-1272 (1973).
        \526\38 Fed. Reg. 29466 (1973). The Office was shortly recreated 
and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended 
by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney 
General, Hearings before the Senate Judiciary Committee, 93d Congress, 
1st sess. (1973).
        \527\Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).
        \528\418 U.S. 683, 692-697 (1974).
        \529\The first question remained unstated, but the second issue 
was extensively debated in Special Prosecutor, Hearings before the 
Senate Judiciary Committee, 93d Congress, 1st sess. (1973); Special 
Prosecutor and Watergate Grand Jury Legislation, Hearings before the 
House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st 
sess. (1973).

        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

[[Page 529]]
considerable doubt on the continuing validity of Humphrey's Executor.

        \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.

        In Bowsher v. Synar,\531\ the Court held that when Congress 
itself retains the power to remove an official it could not vest him 
with the exercise of executive power. Invalidated in Synar were 
provisions of the l985 ``Gramm-Rudman-Hollings'' Deficit Control 
Act\532\ vesting in the Comptroller General authority to prepare a 
detailed report on projected federal revenue and expenditures and to 
determine mandatory across-the-board cuts in federal expenditures 
necessary to reduce the projected budget deficit by statutory targets. 
By a 1921 statute, the Comptroller General was removable by joint 
congressional resolution for, inter alia, ``inefficiency,'' ``neglect of 
duty,'' or ``malfeasance.'' ``These terms are very broad,'' the Court 
noted, and ``could sustain removal of a Comptroller General for any 
number of actual or perceived transgressions of the legislative will.'' 
Consequently, the Court determined, ``the removal powers over the 
Comptroller General's office dictate that he will be subservient to 

        \531\478 U.S. 714 (1986).
        \532\The Balanced Budget and Emergency Deficit Control Act of 
1985, Pub. L. 99-177, 99 Stat. 1038.
        \533\Id., 478 U.S., 729, 730. ``By placing the responsibility 
for execution of the . . . Act in the hands of an officer who is subject 
to removal only by itself, Congress in effect has retained control over 
the execution of the Act and has intruded into the executive function.'' 
Id., at 734. Because the Act contained contingency procedures for 
implementing the budget reductions in the event that the primary 
mechanism was invalidated, the Court rejected the suggestion that it 
should invalidate the 1921 removal provision rather than the Deficit 
Act's conferral of executive power in the Comptroller General. To do so 
would frustrate congressional intention and significantly alter the 
Comptroller General's office. Id., 734-36.

        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. 

        \534\Id., 726.
        \535\Id., 725 n. 4.
        \536\487 U.S. 654 (1988).

[[Page 530]]

        That case sustained the independent counsel statute.\537\ Under 
that law, the independent counsel, appointed by a special court upon 
application by the Attorney General, may be removed by the Attorney 
General ``only for good cause, physical disability, mental incapacity, 
or any other condition that substantially impairs the performance of 
such independent counsel's duties.'' Inasmuch as the counsel was clearly 
exercising ``purely'' executive duties, in the sense that term was used 
in Myers, it was urged that Myers governed and required the invalidation 
of the statute. But, said the Court, Myers stood only for the 
proposition that Congress could not involve itself in the removal of 
executive officers. Its broad dicta that the President must be able to 
remove at will officers performing ``purely'' executive functions had 
not survived Humphrey's Executor. It was true, the Court admitted, that, 
in the latter case, it had distinguished between ``purely'' executive 
officers and officers who exercise ``quasi-legislative'' and ``quasi-
judicial'' powers in marking the line between officials who may be 
presidentially removed at will and officials who can be protected 
through some form of good cause removal limits. ``[B]ut our present 
considered view is that the determination of whether the Constitution 
allows Congress to impose a `good cause'-type restriction on the 
President's power to remove an official cannot be made to turn on 
whether or not that official is classified as `purely executive.' The 
analysis contained in our removal cases is designed not to define rigid 
categories of those officials who may or may not be removed at will by 
the President, but to ensure that Congress does not interfere with the 
President's exercise of the `executive power' and his constitutionally 
appointed duty to `take care that the laws be faithfully executed' under 
Article II. Myers was undoubtedly correct in its holding, and in its 
broader suggestion that there are some `purely executive' officials who 
must be removable by the President at will if he is to be able to 
accomplish his constitutional role. . . . At the other end of the 
spectrum from Myers, the characterization of the agencies in Humphrey's 
Executor and Wiener as `quasi-legislative' or `quasi-judicial' in large 
part reflected our judgment that it was not essential to the President's 
proper execution of his Article II powers that these agencies be headed 
up by individuals who were removable at will. We do not mean to suggest 
that an analysis of the functions served by the officials at issue is 
irrelevant. But the real question is whether the removal restrictions 
are of such a nature that they impede the President's ability to perform 
his con

[[Page 531]]
stitutional duty, and the functions of the officials in question must be 
analyzed in that light.''\538\

        \537\Pub. L. 95-521, title VI, 92 Stat. 1867, as amended by Pub. 
L. 97-409, 96 Stat. 2039, and Pub. L. 100-191, 101 Stat. 1293, 28 U.S.C. 
Sec. Sec. 49, 591 et seq.
        \538\Id., 487 U.S., 685-93.

        The Court discerned no compelling reason to find the good cause 
limit to interfere with the President's performance of his duties. The 
independent counsel did exercise executive, law-enforcement functions, 
but the jurisdiction and tenure of each counsel were limited in scope 
and policymaking or significant administrative authority was lacking. On 
the other hand, the removal authority did afford the President through 
the Attorney General power to ensure the ``faithful execution'' of the 
laws by assuring that the counsel is competently performing the 
statutory duties of the office.

        It is now thus reaffirmed that Congress may not involve itself 
in the removal of officials performing executive functions. It is also 
established that, in creating offices in the executive branch and in 
creating independent agencies, Congress has considerable discretion in 
statutorily limiting the power to remove of the President or another 
appointing authority. It is evident on the face of the opinion that the 
discretion is not unbounded, that there are offices which may be 
essential to the President's performance of his constitutionally 
assigned powers and duties, so that limits on removal would be 
impermissible. There are no bright lines marking off one office from the 
other, but decision requires close analysis.\539\

        \539\But notice the analysis followed by three Justices in 
Public Citizen v. Department of Justice, 491 U.S. 440, 467, 482-489 
(1989) (concurring), and consider the possible meaning of the recurrence 
to formalist reasoning in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 
(1989). And see Justice Scalia's utilization of the ``take care'' clause 
in pronouncing limits on Congress' constitutional power to confer 
citizen standing in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 
2142-2146 (1992), although it is not clear that he had a majority of the 
Court with him.

        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.

        \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).

        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

[[Page 532]]
term is limited by statute,\542\ or one appointed with the consent of 
the Senate.\543\ He may remove an officer of the army or navy at any 
time by nominating to the Senate the officer's successor, provided the 
Senate approves the nomination.\544\ In 1940, the President was 
sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for 
refusal to produce evidence in substantiation of charges which he had 
levelled at his fellow directors.\545\ Although no such cause of removal 
by the President was stated in the act creating TVA, the President's 
action, being reasonably required to promote the smooth functioning of 
TVA, was within his duty to ``take care that the laws be faithfully 
executed.'' So interpreted, it did not violate the principle of 
administrative independence.

        \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).
        \542\Parsons v. United States, 167 U.S. 324 (1897).
        \543\Shurtleff v. United States, 189 U.S. 311 (1903).
        \544\Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. 
United States, 177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 
541 (1922).
        \545\Morgan v. TVA, 28 F. Supp. 732 (D.E.D. Tenn. 1939), affd., 
115 F. 2d 990 (6th Cir. 1940), cert. den. 312 U.S. 701 (1941).
      The Presidential Aegis: Demands for Papers

        Presidents have more than once had occasion to stand in a 
protective relation to their subordinates, assuming their defense in 
litigation brought against them\546\ or pressing litigation in their 
behalf,\547\ refusing a call for papers from one of the Houses of 
Congress which might be used, in their absence from the seat of 
government, to their disadvantage,\548\ challenging the constitutional 
validity of legislation which he deemed detrimental to their 
interests.\549\ One of the principal efforts throughout our history has 
been his efforts to spread his own official immunity to them, by 
resisting actions of the courts or of congressional committees to 
require divulgence of confidential communications from or to the 
President, that is, communications that Presidents choose to regard as 
confidential. Only recently, however, has the focus of the controversy 
shifted from protection of presidential or executive interests to 
protection of the President himself and the locus of the dispute shifted 
to the courts.

        \546\E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 
1 (1890).
        \547\United States v. Lovett, 328 U.S. 303 (1946).
        \548\E.g., 2 J. Richardson, op. cit., n.42, 847.
        \549\United States v. Lovett, 328 U.S. 303, 313 (1946).

        Following years in which claims of executive privilege were 
resolved one way or another on the basis of the political strengths of 
the parties, in primarily interbranch disputes, the issue was finally 
the subject of the first judicial elaboration of the doctrine to take 
place in our history; the doctrine of executive privilege was at once 
recognized as existing and having a constitutional foundation while

[[Page 533]]
at the same time it was definitely bounded in its assertion by the 
principle of judicial review. Because of these cases, because of the 
intensified congressional-presidential dispute, and especially because 
of the introduction of the issue into an impeachment proceeding, a 
somewhat lengthy treatment of the doctrine is called for.

        Conceptually, the doctrine of executive privilege may well 
reflect different considerations in different factual situations. 
Congress may seek information within the possession of the President, 
either in effectuation of its investigatory powers to oversee the 
conduct of officials of the Executive Branch or in effectuation of its 
power to impeach the President, Vice President, or civil officers of the 
Government. Private parties may seek information in the possession of 
the President either in civil litigation with the Government or in a 
criminal proceeding brought by government prosecutors. Generally, the 
categories of executive privilege have been the same whether it is 
Congress or a private individual seeking the information, but it is 
possible that the congressional assertion of need may over-balance the 
presidential claim to a greater degree than that of a private 
individual. The judicial precedents are so meager yet that it is not 
possible so to state, however.

        The doctrine of executive privilege defines the authority of the 
President to withhold documents or information in his possession or in 
the possession of the executive branch from compulsory process of the 
legislative or judicial branch of the government. The Constitution does 
not expressly confer upon the Executive Branch any such privilege, but 
it has been claimed that the privilege derives from the constitutional 
provision of separation of powers and from a necessary and proper 
concept respecting the carrying out of the duties of the presidency 
imposed by the Constitution. Historically, assertion of the doctrine has 
been largely confined to the areas of foreign relations, military 
affairs, pending investigations, and intragovernmental discussions.\550\ 
The current and ongoing litiga

[[Page 534]]
tion involved, of course, the claim of confidentiality of conversations 
between the President and his aides.

        \550\For a good statement of the basis of the doctrine, the 
areas in which it is asserted, and historical examples, see Executive 
Privilege: The Withholding of Information by the Executive, Hearings 
before the Senate Judiciary Subcommittee on Separation of Powers, 92d 
Congress, 1st sess. (1971), 420-443, (then-Assistant Attorney General 
Rehnquist). Former Attorney General Rogers, in stating the position of 
the Eisenhower Administration, identified five categories of executive 
privilege: (1) military and diplomatic secrets and foreign affairs, (2) 
information made confidential by statute, (3) information relating to 
pending litigation, and investigative files and reports, (4) information 
relating to internal government affairs privileged from disclosure in 
the public interest, and (5) records incidental to the making of policy, 
including interdepartmental memoranda, advisory opinions, 
recommendations of subordinates, and informal working papers. The Power 
of the President To Withhold Information from the Congress, Memorandum 
of the Attorney General, Senate Judiciary Subcommittee on Constitutional 
Rights, 85th Congress, 2d sess. (Comm. Print) (1958), reprinted as 
Rogers, Constitutional Law: The Papers of the Executive Branch, 44 
A.B.A.J. 941 (1958). In the most expansive version of the doctrine, 
Attorney General Kleindeinst argued that the President could assert the 
privilege as to any employee of the Federal Government to keep secret 
any information at all. Executive Privilege, Secrecy in Government, 
Freedom of Information, Hearings before the Senate Government Operations 
Subcommittee on Intergovernmental Relations, 93d Congress, 1st sess. 
(1973), I:18 passim. For a strong argument that the doctrine lacks any 
constitutional or other legal basis, see R. Berger, Executive Privilege: 
A Constitutional Myth (Cambridge: 1974). The book, however, precedes the 
Court decision in Nixon.

        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\

        \551\There are also, of course, instances of claimed access for 
other purposes, for which the Freedom of Information Act, 80 Stat. 383 
(1966), 5 U.S.C. Sec. 552, provides generally for public access to 
governmental documents. In 522(b), however, nine types of information 
are exempted from coverage, several of which relate to the types as to 
which executive privilege has been asserted, such as matter classified 
pursuant to executive order, interagency or intra-agency memoranda or 
letters, and law enforcement investigatory files. See, e.g., EPA v. 
Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA 
v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493 
U.S. 146 (1989); Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert. 
den., 415 U.S. 977 (1974).
        \552\See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, 
Federal Rules of Criminal Procedure. The earliest judicial dispute 
involving what later became known as executive privilege arose in United 
States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. 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).
        \554\Thus, defendant in United States v. Ehrlichman, 376 F. 
Supp. 29 (D.C.D.C. 1974), was held entitled to access to material in the 
custody of the President wherein the President's decision to dismiss the 
prosecution would probably have been unavailing.


[[Page 535]]

        The civil type of case is illustrated in United States v. 
Reynolds,\555\ a tort claim brought against the United States for 
compensation for the deaths of civilians in the crash of an Air Force 
plane testing secret electronics equipment. Plaintiffs sought discovery 
of the Air Force's investigation report on the accident, and the 
Government resisted on a claim of privilege as to the nondisclosure of 
military secrets. The Court accepted the Government's claim, holding 
that courts must determine whether under the circumstances the claim of 
privilege was appropriate without going so far as to force disclosure of 
the thing the privilege is designed to protect. The showing of necessity 
of the private litigant for the information should govern in each case 
how far the trial court should probe; where the necessity is strong, the 
court should require a strong showing of the appropriateness of the 
privilege claim but once satisfied of the appropriateness no matter how 
compelling the need the privilege prevails.\556\

        \555\345 U.S. 1 (1953).
        \556\Id., 7-8, 9-10, 11. Withholding of information relating to 
governmental employees' clearances, disciplines, or discharges often 
raise claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 
(1988); U. S.Dept. of the Navy v. Egan, 484 U.S. 518 (1988). After the 
Court approved and implemented a governmental secrecy agreement with 
some of its employees, Snepp v. United States, 444 U.S. 507 (1980), the 
Government expanded its secrecy program with respect to classified and 
``classifiable'' information. When Congress sought to curb this policy, 
the Reagan Administration convinced a federal district judge to declare 
the restrictions void as invasive of the President constitutional power 
to manage the executive. National Federation of Federal Employees v. 
United States, 688 F.Supp. 671 (D.D.C.), vacated and remanded sub nom., 
American Foreign Service Assn. v. Garfinkel, 490 U.S. 153 (1989). For 
similar assertions in the context of plaintiffs suing the Government for 
interference with their civil and political rights during the protests 
against the Vietnam War, in which the plaintiffs were generally denied 
the information in the possession of the Government under the state-
secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C.Cir. 1978); Id., 
690 F.2d 977 (D.C.Cir. 1982); Ellsberg v. Mitchell, 709 F.2d 51 
(D.C.Cir. 1983). For review and analysis, see Quint, The Separation of 
Powers Under Carter, 62 Tex. L. Rev. 785, 875-880 (1984). And see Totten 
v. United States, 92 U.S. 105 (1875).

        Prosecutorial and Grand Jury Access to Presidential Documents.--
Rarely will there be situations when federal prosecutors or grand juries 
seek information under the control of the President, since he has 
ultimate direction of federal prosecuting agencies, but the Watergate 
Special Prosecutor, being in a unique legal situation, was held able to 
take the President to court to enforce subpoenas for tape recordings of 
presidential conversations and other documents relating to the 
commission of criminal actions.\557\ While holding that the subpoenas 
were valid and should be obeyed, the Supreme Court recognized the 
constitutional status of execu

[[Page 536]]
tive privilege, insofar as the assertion of that privilege relates to 
presidential conversations and indirectly to other areas as well.

        \557\United States v. Nixon, 418 U.S. 683, 692-697 (1974).

        Presidential communications, the Court said, have ``a 
presumptive privilege.'' ``The privilege is fundamental to the operation 
of government and inextricably rooted in the separation of powers under 
the Constitution.'' The operation of government is furthered by the 
protection accorded communications between high government officials and 
those who advise and assist them in the performance of their duties. ``A 
President and those who assist him must be free to explore alternatives 
in the process of shaping policies and making decisions and to do so in 
a way many would be unwilling to express except privately.'' The 
separation-of-powers basis derives from the conferral upon each of the 
branches of the Federal Government of powers to be exercised by each of 
them in great measure independent of the other branches. The 
confidentiality of presidential conversations flows then from the 
effectuation of enumerated powers.\558\

        \558\Id., 707-708. Presumably, the opinion recognizes a similar 
power existent in the federal courts to preserve the confidentiality of 
judicial deliberations, cf. New York Times Co. v. United States, 403 
U.S. 713, 752 n. 3 (1971) (Chief Justice Burger dissenting), and in each 
House of Congress to treat many of its papers and documents as 
privileged. Cf. Soucie v. David, 448 F. 2d 1067, 1080, 1081-1982 
(C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation 
and Speech Review Policies, Hearings before the Senate Committee on 
Armed Services, 87th Congress, 2d sess. (1962), 512 (Senator Stennis). 
See Calley v. Callaway, 519 F. 2d 184 (5th Cir., 1975) (en banc), cert. 
den., 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95 
(D.D.C., 1974).

        However, the Court continued, the privilege is not absolute. The 
federal courts have the power to construe and delineate claims arising 
under express and implied powers. Deference is owed the constitutional 
decisions of the other branches, but it is the function of the courts to 
exercise the judicial power, ``to say what the law is.'' The Judicial 
Branch has the obligation to do justice in criminal prosecutions, which 
involves the employment of an adversary system of criminal justice in 
which all the probative facts, save those clearly privileged, are to be 
made available. Thus, while the President's claim of privilege is 
entitled to deference, the courts must when the claim depends solely on 
a broad, undifferentiated claim of confidentiality balance two sets of 

        ``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

[[Page 537]]
to temper the candor of their remarks by the infrequent occasions of 
disclosure because of the possibility that such conversations will be 
called for in the context of a criminal prosecution.

        ``On the other hand, the allowance of the privilege to withhold 
evidence that is demonstrably relevant in a criminal trial would cut 
deeply into the guarantee of due process of law and gravely impair the 
basic function of the courts. A President's acknowledged need for 
confidentiality in the communications of his office is general in 
nature, whereas the constitutional need for production of relevant 
evidence in a criminal proceeding is specific and central to the fair 
adjudication of a particular criminal case in the administration of 
justice. . . .

        ``We conclude that when the ground for asserting privilege as to 
subpoenaed materials sought for use in a criminal trial is based only on 
the generalized interest in confidentiality, it cannot prevail over the 
fundamental demands of due process of law in the fair administration of 
criminal justice.''\559\

        \559\418 U.S. 683, 711-713. Essentially the same decision had 
been arrived at in the context of subpoenas of tapes and documentary 
evidence for use before a grand jury in Nixon v. Sirica, 487 F. 2d 700 
(D.C.Cir. 1973).

        Obviously, this decision leaves much unresolved. It does 
recognize the constitutional status of executive privilege as a 
doctrine. It does affirm the power of the courts to resolve disputes 
over claims of the privilege. But it leaves unsettled just how much 
power the courts have to review claims of privilege to protect what are 
claimed to be military, diplomatic, or sensitive national security 
secrets. It does not indicate what the status of the claim of 
confidentiality of conversations is when it is raised in civil cases; 
nor does it touch upon denial of information to Congress.

        Neither does the Court's decision in Nixon v. Administrator of 
General Services\560\ elucidate any of these or other questions that may 
be raised to any great degree. In upholding the Presidential Recordings 
and Materials Preservation Act, which directed the Government to take 
custody of former President Nixon's records to be screened, catalogued, 
and processed by professional archivists, in GSA, the Court viewed the 
assertion of privilege as directed only to the facial validity of the 
requirement of screening by executive branch professionals and not at 
all to be related to the possible public disclosure of some of the 
records. The decision does go be

[[Page 538]]
yond the first decision's recognition of the overbalancing force of the 
necessity for disclosure in criminal trials to find ``comparable'' 
``adequate justifications'' for congressional enactment of the law, 
including the preservation of the materials for legitimate historical 
and governmental purposes, the rationalization of preservation and 
access to public needs as well as each President's wishes, the 
preservation of the materials as a source for facilitating a full airing 
of the events leading to the former President's resignation for public 
and congressional understanding, and preservation for the light shed 
upon issues in civil or criminal litigation. While interestingly 
instructive, the decision may be so attuned to the narrow factual 
circumstances that led to the Act's passage as to leave the case of 
little value as precedent.

        \560\433 U.S. 425, 446-455 (1977). See id., 504, 545 (Chief 
Justice Burger and Justice Rehnquist dissenting). The decision does 
resolve one outstanding question; assertion of the privilege is not 
limited to incumbent Presidents. Id., 447-449. Subsequently, a court 
held that former-President Nixon had had such a property expectancy in 
his papers that he was entitled to compensation for their seizure under 
the Act. Nixon v. United States, 978 F.2d 1269 (D.C.Cir. 1992).

        Congressional Access to Executive Branch Information.--
Presidents and Congresses have engaged in protracted disputes over 
provision of information from the former to the latter, but the basic 
thing to know is that most congressional requests for information are 
complied with. The disputes, however, have been colorful and 
varied.\561\ The basic premise of the concept of executive privilege, as 
it is applied to resist requests for information from Congress as from 
private parties with or without the assistance of the courts, is found 
in the doctrine of separation of powers, the prerogative of each coequal 
branch to operate within its own sphere independent of control or 
direction of the other branches. In this context, the President then 
asserts that phase of the claim of privilege relevant to the moment, 
such as confidentiality of communications, protection of diplomatic and 
military secrets, preservation of investigative records. Counterpoised 
against this assertion of presidential privilege is the power of 
Congress to obtain information upon which to legislate, to oversee the 
carrying out of its legislation, to check and root out corruption and 
wrongdoing in the Executive Branch, involving both the legislating and 
appropriating function of Congress, and in the final analysis to impeach 
the President, the Vice President, and all civil officers of the Federal 

        \561\See the extensive discussion in Shane, Legal Disagreement 
and Negotiation in a Government of Laws: The Case of Executive Privilege 
Claims Against Congress, 71 Minn. L. Rev. 461 (1987).

        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

[[Page 539]]
courts with respect to the President's obligations to obey its 
subpoenas. The Committee lost its case, but the courts based their 
rulings upon prudential considerations rather than upon questions of 
basic power, inasmuch as by the time the case was considered impeachment 
proceedings were pending in the House of Representatives.\562\ The House 
Judiciary Committee subpoenas were similarly rejected by the President, 
but instead of going to the courts for enforcement the Committee adopted 
as one of its Articles of Impeachment the refusal of the President to 
honor its subpoenas.\563\ Congress has considered bills by which 
Congress would authorize congressional committees to go to court to 
enforce their subpoenas; the bills did not purport to define executive 
privilege, although some indicate a standard by which the federal court 
is to determine whether the material sought is lawfully being withheld 
from Congress.\564\ The controversy gives little indication at the 
present time of abating, and it may be assumed that whenever the 
Executive and Congress are controlled by different political parties 
there will be persistent conflicts. One may similarly assume that the 
alteration of this situation would only reduce but not remove the 

        \562\Senate Select Committee on Presidential Campaign Activities 
v. Nixon, 370 F. Supp. 521 (D.D.C.), affd., 498 F. 2d 725 (D.C.Cir. 
        \563\President Nixon's position was set out in a June 9, 1974, 
letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. 
Pres. Docs. 592 (1974). The impeachment article and supporting material 
are set out in H. Rept. No. 93-1305, 93d Cong., 2d sess. (1974).
        \564\For consideration of various proposals by which Congress 
might proceed, see Hamilton & Grabow, A Legislative Proposal for 
Resolving Executive Privilege Disputes Precipitated by Congressional 
Subpoenas, 21 Harv. J. Legis. 145 (1984); Brand & Connelly, 
Constitutional Confrontations: Preserving a Prompt and Orderly Means by 
Which Congress May Enforce Investigative Demands Against Executive 
Branch Officials, 36 Cath. U. L. Rev. 71 (1986); Note, The Conflict 
Between Executive Privilege and Congressional Oversight: The Gorsuch 
Controversy, 1983 Duke L. J. 1333.


                               ARTICLE II

                          EXECUTIVE DEPARTMENT

  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 * * *

[[Page 540]]


        This clause, which imposes a duty rather than confers a power, 
is the formal basis of the President's legislative leadership, which has 
attained great proportions since 1900. This development, however, 
represents the play of political and social forces rather than any 
pronounced change in constitutional interpretation. Especially is it the 
result of the rise of parties and the accompanying recognition of the 
President as party leader, of the appearance of the National Nominating 
Convention and the Party Platform, and of the introduction of the Spoils 
System, an ever present help to Presidents in times of troubled 
relations with Congress.\565\ It is true that certain pre-Civil War 
Presidents, mostly of Whig extraction, professed to entertain nice 
scruples on the score of ``usurping'' legislative powers,\566\ but still 
earlier ones, Washington, Jefferson, and Jackson among them, took a very 
different line, albeit less boldly and persistently than their later 
imitators.\567\ Today, there is no subject on which the President may 
not appropriately communicate to Congress, in as precise terms as he 
chooses, his conception of its duty. Conversely, the President is not 
obliged by this clause to impart information which, in his judgment, 
should in the public interest be withheld.\568\ The President has 
frequently summoned both Houses into ``extra'' or ``special sessions'' 
for legislative purposes, and the Senate alone for the consideration of 
nominations and treaties. His power to adjourn the Houses has never been 

        \565\N. Small, Some Presidential Interpretations of the 
Presidency (Baltimore: 1932); W. Binkley, The President and Congress 
(New York: 2d ed. 1962); E. Corwin, op. cit., n.44, chs. 1, 7.
        \566\The first Harrison, Polk, Taylor, and Fillmore all fathered 
sentiments to this general effect. See 4 J. Richardson, op. cit., n.42, 
1860, 1864; 6 id., 2513-2519, 2561-2562, 2608, 2615.
        \567\See sources cited supra, n.565.
        \568\Warren, Presidential Declarations of Independence, 10 
B.U.L. Rev. 1 (1930); 3 W. Willoughby, op. cit., n.294, 1488-1492.


      The Right of Reception: Scope of the Power

        ``Ambassadors and other public ministers'' embraces not only 
``all possible diplomatic agents which any foreign power may accredit to 
the United States,''\569\ but also, as a practical construction of the 
Constitution, all foreign consular agents, who therefore may not 
exercise their functions in the United States without an exequatur from 
the President.\570\ The power to ``receive'' ambassadors, et cetera, 
includes, moreover, the right to refuse to receive them, to

[[Page 541]]
request their recall, to dismiss them, and to determine their 
eligibility under our laws.\571\ Furthermore, this power makes the 
President the sole mouthpiece of the nation in its dealing with other 

        \569\7 Ops. Atty. Gen. 186, 209 (1855).
        \570\5 J. Moore, International Law Digest (Washington: 1906), 
        \571\Id., 4:473-548; 5:19-32.
      The Presidential Monopoly

        Wrote Jefferson in 1790: ``The transaction of business with 
foreign nations is executive altogether. It belongs, then, to the head 
of that department, except as to such portions of it as are specially 
submitted to the Senate. Exceptions are to be construed strictly.''\572\ 
So when Citizen Genet, envoy to the United States from the first French 
Republic, sought an exequatur for a consul whose commission was 
addressed to the Congress of the United States, Jefferson informed him 
that ``as the President was the only channel of communication between 
the United States and foreign nations, it was from him alone `that 
foreign nations or their agents are to learn what is or has been the 
will of the nation'; that whatever he communicated as such, they had a 
right and were bound to consider `as the expression of the nation'; and 
that no foreign agent could be `allowed to question it,' or `to 
interpose between him and any other branch of government, under the 
pretext of either's transgressing their functions.' Mr. Jefferson 
therefore declined to enter into any discussion of the question as to 
whether it belonged to the President under the Constitution to admit or 
exclude foreign agents. `I inform you of the fact,' he said, `by 
authority from the President.' Mr. Jefferson returned the consul's 
commission and declared that the President would issue no exequatur to a 
consul except upon a commission correctly addressed.''\573\

        \572\Opinion on the Question Whether the Senate Has the Right to 
Negative the Grade of Persons Appointed by the Executive to Fill Foreign 
Missions, April 24, 1790, 5 Writings of Thomas Jefferson, P. Ford ed. 
(New York: 1895), 161, 162.
        \573\4 J. Moore, International Law Digest (Washington: 1906), 

        The Logan Act.--When in 1798 a Philadelphia Quaker named Logan 
went to Paris on his own to undertake a negotiation with the French 
Government with a view to averting war between France and the United 
States, his enterprise stimulated Congress to pass ``An Act to Prevent 
Usurpation of Executive Functions,''\574\ which, ``more honored in the 
breach than the observance,'' still survives on the statute books.\575\ 
The year following John Marshall,

[[Page 542]]
then a Member of the House of Representatives, defended President John 
Adams for delivering a fugitive from justice to Great Britain under the 
27th article of the Jay Treaty, instead of leaving the business to the 
courts. He said: ``The President is the sole organ of the nation in its 
external relations, and its sole representative with foreign nations. Of 
consequence, the demand of a foreign nation can only be made on him. He 
possesses the whole Executive power. He holds and directs the force of 
the nation. Of consequence, any act to be performed by the force of the 
nation is to be performed through him.''\576\ Ninety-nine years later, a 
Senate Foreign Relations Committee took occasion to reiterate Marshall's 
doctrine with elaboration.\577\

        \574\This measure is now contained in 18 U.S.C. Sec. 953.
        \575\See Memorandum on the History and Scope of the Law 
Prohibiting Correspondence with a Foreign Government, S. Doc. No. 696, 
64th Congress, 2d Sess. (1917). The author was Mr. Charles Warren, then 
Assistant Attorney General. Further details concerning the observance of 
the ``Logan Act'' are given in E. Corwin, op. cit., n.44, 183-184, 430-
        \576\10 Annals of Congress 596, 613-614 (1800). Marshall's 
statement is often cited, e.g., United States v. Curtiss-Wright Export 
Corp., 299 U.S. 304, 318, 319 (1936), as if he were claiming sole or 
inherent executive power in foreign relations, but Marshall carefully 
propounded the view that Congress could provide the rules underlying the 
President's duty to extradite. When, in 1848, Congress did enact such a 
statute, the Court sustained it. Fong Yue Ting v. United States, 149 
U.S. 698, 714 (1893).
        \577\S. Doc. No. 56, 54th Congress, 2d Sess. (1897).

        A Formal or a Formative Power.--In his attack, instigated by 
Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the 
outbreak of war between France and Great Britain, Madison advanced the 
argument that all large questions of foreign policy fell within the 
ambit of Congress, by virtue of its power ``to declare war,'' and in 
support of this proposition he disparaged the presidential function of 
reception, in the following words: ``I shall not undertake to examine, 
what would be the precise extent and effect of this function in various 
cases which fancy may suggest, or which time may produce. It will be 
more proper to observe, in general, and every candid reader will second 
the observation, that little, if anything, more was intended by the 
clause, than to provide for a particular mode of communication, almost 
grown into a right among modern nations; by pointing out the department 
of the government, most proper for the ceremony of admitting public 
ministers, of examining their credentials, and of authenticating their 
title to the privileges annexed to their character by the law of 
nations. This being the apparent design of the constitution, it would be 
highly improper to magnify the function into an important prerogative, 
even when no rights of other departments could be affected by it.''\578\

        \578\1 Letters and Other Writings of James Madison 
(Philadelphia: 1865), 611.

        The President's Diplomatic Role.--Hamilton, although he had 
expressed substantially the same view in The Federalist re

[[Page 543]]
garding the power of reception,\579\ adopted a very different conception 
of it in defense of Washington's proclamation. Writing under the 
pseudonym, ``Pacificus,'' he said: ``The right of the executive to 
receive ambassadors and other public ministers, may serve to illustrate 
the relative duties of the executive and legislative departments. This 
right includes that of judging, in the case of a revolution of 
government in a foreign country, whether the new rulers are competent 
organs of the national will, and ought to be recognized, or not; which, 
where a treaty antecedently exists between the United States and such 
nation, involves the power of continuing or suspending its operation. 
For until the new government is acknowledged, the treaties between the 
nations, so far at least as regards public rights, are of course 
suspended. This power of determining virtually upon the operation of 
national treaties, as a consequence of the power to receive public 
ministers, is an important instance of the right of the executive, to 
decide upon the obligations of the country with regard to foreign 
nations. To apply it to the case of France, if there had been a treaty 
of alliance, offensive and defensive, between the United States and that 
country, the unqualified acknowledgment of the new government would have 
put the United States in a condition to become as an associate in the 
war with France, and would have laid the legislature under an 
obligation, if required, and there was otherwise no valid excuse, of 
exercising its power of declaring war. This serves as an example of the 
right of the executive, in certain cases, to determine the condition of 
the nation, though it may, in its consequences, affect the exercise of 
the power of the legislature to declare war. Nevertheless, the executive 
cannot thereby control the exercise of that power. The legislature is 
still free to perform its duties, according to its own sense of them; 
though the executive, in the exercise of its constitutional powers, may 
establish an antecedent state of things, which ought to weigh in the 
legislative decision. The division of the executive power in the 
Constitution, creates a concurrent authority in the cases to which it 

        \579\No. 69 (J. Cooke ed. 1961), 468.
        \580\Letter of Pacificus, No. 1, 7 Works of Alexander Hamilton, 
J. Hamilton ed. (New York: 1851), 76, 82-83.

        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

[[Page 544]]
their department. `But,' said he, `at least, Congress are bound to see 
that the treaties are observed.' I told him no; there were very few 
cases indeed arising out of treaties, which they could take notice of; 
that the President is to see that treaties are observed. `If he decides 
against the treaty, to whom is a nation to appeal?' I told him the 
Constitution had made the President the last appeal. He made me a bow, 
and said, that indeed he would not make me his compliments on such a 
Constitution, expressed the utmost astonishment at it, and seemed never 
before to have had such an idea.''\581\

        \581\4 J. Moore, International Law Digest (Washington: 1906), 
      The Power of Recognition

        In his endeavor in 1793 to minimize the importance of the 
President's power of reception, Madison denied that it involved 
cognizance of the question, whether those exercising the government of 
the accrediting State had the right along with the possession. He said: 
``This belongs to the nation, and to the nation alone, on whom the 
government operates. . . . It is evident, therefore, that if the 
executive has a right to reject a public minister, it must be founded on 
some other consideration than a change in the government, or the newness 
of the government; and consequently a right to refuse to acknowledge a 
new government cannot be implied by the right to refuse a public 
minister. It is not denied that there may be cases in which a respect to 
the general principles of liberty, the essential rights of the people, 
or the overruling sentiments of humanity, might require a government, 
whether new or old, to be treated as an illegitimate despotism. Such are 
in fact discussed and admitted by the most approved authorities. But 
they are great and extraordinary cases, by no means submitted to so 
limited an organ of the national will as the executive of the United 
States; and certainly not to be brought by any torture of words, within 
the right to receive ambassadors.''\582\

        \582\Letters of Helvidius, 5 Writings of James Madison, G. Hunt 
ed. (New York: 1905), 133.

        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

[[Page 545]]
Bassett Moore in his famous Digest, as follows: ``In the preceding 
review of the recognition, respectively, of the new states, new 
governments, and belligerency, there has been made in each case a 
precise statement of facts, showing how and by whom the recognition was 
accorded. In every case, as it appears, of a new government and of 
belligerency, the question of recognition was determined solely by the 
Executive. In the case of the Spanish-American republics, of Texas, of 
Haiti, and of Liberia, the President, before recognizing the new state, 
invoked the judgment and cooperation of Congress; and in each of these 
cases provision was made for the appointment of a minister, which, when 
made in due form, constitutes, as has been seen, according to the rules 
of international law, a formal recognition. In numerous other cases, the 
recognition was given by the Executive solely on his own 

        \583\1 J. Moore, International Law Digest (Washington: 1906), 
243-244. See American Law Institute, Restatement (Third) of the Law, The 
Foreign Relations Law of the United States (1987), Sec. Sec. 204, 205.

        The Case of Cuba.--The question of Congress' right also to 
recognize new states was prominently raised in connection with Cuba's 
final and successful struggle for independence. Beset by numerous 
legislative proposals of a more or less mandatory character, urging 
recognition upon the President, the Senate Foreign Relations Committee, 
in 1897, made an elaborate investigation of the whole subject and came 
to the following conclusions as to this power: ``The `recognition' of 
independence or belligerency of a foreign power, technically speaking, 
is distinctly a diplomatic matter. It is properly evidenced either by 
sending a public minister to the Government thus recognized, or by 
receiving a public minister therefrom. The latter is the usual and 
proper course. Diplomatic relations with a new power are properly, and 
customarily inaugurated at the request of that power, expressed through 
an envoy sent for the purpose. The reception of this envoy, as pointed 
out, is the act of the President alone. The next step, that of sending a 
public minister to the nation thus recognized, is primarily the act of 
the President. The Senate can take no part in it at all, until the 
President has sent in a nomination. Then it acts in its executive 
capacity, and, customarily, in `executive session.' The legislative 
branch of the Government can exercise no influence over this step 
except, very indirectly, by withholding appropriations. . . . Nor can 
the legislative branch of the Government hold any communications with 
foreign nations. The executive branch is the sole mouthpiece of the 
nation in communication with foreign sovereignties.

        ``Foreign nations communicate only through their respective 
executive departments. Resolutions of their legislative departments

[[Page 546]]
upon diplomatic matters have no status in international law. In the 
department of international law, therefore, properly speaking, a 
Congressional recognition of belligerency or independence would be a 
nullity. . . . Congress can help the Cuban insurgents by legislation in 
many ways, but it cannot help them legitimately by mere declarations, or 
by attempts to engage in diplomatic negotiations, if our interpretation 
of the Constitution is correct. That it is correct . . . [is] shown by 
the opinions of jurists and statesmen of the past.''\584\ Congress was 
able ultimately to bundle a clause recognizing the independence of Cuba, 
as distinguished from its government, into the declaration of war of 
April 11, 1898, against Spain. For the most part, the sponsors of the 
clause defended it by the following line of reasoning. Diplomacy, they 
said, was now at an end, and the President himself had appealed to 
Congress to provide a solution for the Cuban situation. In response, 
Congress was about to exercise its constitutional power of declaring 
war, and it has consequently the right to state the purpose of the war 
which it was about to declare.\585\ The recognition of the Union of 
Soviet Socialist Republics in 1933 was an exclusively presidential act.

        \584\S. Doc. No. 56, 54th Congress, 2d Sess. (1897), 20-22.
        \585\Said 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).

        The Power of Nonrecognition.--The potentialities of 
nonrecognition were conspicuously illustrated by President Woodrow 
Wilson when he refused, early in 1913, to recognize Provisional 
President Huerta as the de facto government of Mexico, thereby 
contributing materially to Huerta's downfall the year following. At the 
same time, Wilson announced a general policy of nonrecognition in the 
case of any government founded on acts of violence, and while he 
observed this rule with considerable discretion, he consistently refused 
to recognize the Union of Soviet Socialist Republics, and his successors 
prior to President Franklin D. Roosevelt did the same. The refusal of 
the Hoover administration to recognize the independence of the Japanese 
puppet state of Manchukuo early in 1932 was based on kindred grounds. 
Similarly, the nonrecognition of the Chinese Communist Government from 
the Truman Administration to President Nixon's de facto recognition 
through a visit in 1972--not long after the People's Republic of China 
was admitted to the United Nations and the exclusion of Taiwan--proved 
to be

[[Page 547]]
an important part of American foreign policy during the Cold War.\586\

        \586\President Carter's termination of the Mutual Defense Treaty 
with Taiwan, which precipitated a constitutional and political debate, 
was perhaps an example of nonrecognition or more appropriately 
derecognition. On recognition and nonrecognition policies in the post-
World War II era, see Restatement, Foreign Relations, op. cit., n.262, 
Sec. Sec. 202, 203.
      Congressional Implementation of Presidential Policies

        No President was ever more jealous of his prerogative in the 
realm of foreign relations than President Woodrow Wilson. When, however, 
strong pressure was brought to bear upon him by Great Britain respecting 
his Mexican Policy, he was constrained to go before Congress and ask for 
a modification of the Panama Tolls Act of 1911, which had also aroused 
British ire. Addressing Congress, he said, ``I ask this of you in 
support of the foreign policy of the Administration. I shall not know 
how to deal with other matters of even greater delicacy and nearer 
consequence if you do not grant it to me in ungrudging measure.''\587\

        \587\1 Messages and Papers of Woodrow Wilson, A. Shaw ed. (New 
York: 1924), 58.

        The fact is, of course, that Congress has enormous powers, the 
support of which is indispensable to any foreign policy. In the long 
run, Congress is the body that lays and collects taxes for the common 
defense, that creates armies and maintains navies, although it does not 
direct them, that pledges the public credit, that declares war, that 
defines offenses against the law of nations, that regulates foreign 
commerce; and it has the further power ``to make all laws which shall be 
necessary and proper''--that is, which it deems to be such--for carrying 
into execution not only its own powers but all the powers ``of the 
government of the United States and of any department or officer 
thereof.'' Moreover, its laws made ``in pursuance'' of these powers are 
``supreme law of the land,'' and the President is bound constitutionally 
to ``take care that'' they ``be faithfully executed.'' In point of fact, 
congressional legislation has operated to augment presidential powers in 
the foreign field much more frequently than it has to curtail them. The 
Lend-Lease Act of March 11, 1941\588\ is the classic example, although 
it only brought to culmination a whole series of enactments with which 
Congress had aided and abetted the administration's foreign policy in 
the years between 1934 and 1941.\589\ Disillusionment with presidential 
policies in the context of the Vietnamese conflict led Congress to 
legislate restrictions, not only with respect to the discretion of the 
President to use troops abroad in the absence of a declaration of

[[Page 548]]
war, but also limiting his economic and political powers through curbs 
on his authority to declare national emergencies.\590\ The lesson of 
history, however, appears to be that congressional efforts to regain 
what is deemed to have been lost to the President is intermittent, 
whereas the presidential exercise of power in today's world is 

        \588\55 Stat. 31 (1941).
        \589\E. Corwin, op. cit., n.44, 184-193, 423-425, 435-436.
        \590\Legislation includes the War Powers Resolution, P.L. 93-
148, 87 Stat. 555 (1953), 50 U.S.C. Sec. Sec. 1541-1548; the National 
Emergencies Act, P.L. 94-412, 90 Stat. 1255 (1976), 50 U.S.C. 
Sec. Sec. 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. Sec. Sec. 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. 
Sec. 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. Sec. Sec. 1330, 1602-1611 (removing from executive 
control decisions concerning the liability of foreign sovereigns to 
        \591\``We may say that power to legislate for emergencies 
belongs in the hands of Congress, but only Congress itself can prevent 
power from slipping through its fingers.'' Youngstown Sheet & Tube Co. 
v. Sawyer, 343 U.S. 579, 654 (1952) (Justice Jackson concurring). For an 
account of how the President usually prevails, see H. Koh, The National 
Security Constitution: Sharing Power after the Iran-Contra Affairs (New 
Haven: 1990).
      The Doctrine of Political Questions

        It is not within the province of the courts to inquire into the 
policy underlying action taken by the ``political departments''--
Congress and the President--in the exercise of their conceded powers. 
This commonplace maxim is, however, sometimes given an enlarged 
application, so as to embrace questions as to the existence of facts and 
even questions of law, which the Court would normally regard as falling 
within its jurisdiction. Such questions are termed ``political 
questions,'' and are especially common in the field of foreign 
relations. The leading case is Foster v. Neilson,\592\ where the matter 
in dispute was the validity of a grant made by the Spanish Government in 
1804 of land lying to the east of the Mississippi River, and in which 
there was also raised the question whether the region between the 
Perdido and Mississippi Rivers belonged in 1804 to Spain or the United 

        \592\2 Pet. (27 U. S.) 253 (1829).

        Chief Justice Marshall held that the Court was bound by the 
action of the political departments, the President and Congress, in 
claiming the land for the United States. He said: ``If those departments 
which are intrusted with the foreign intercourse of the nation, which 
assert and maintain its interests against foreign powers, have 
unequivocally asserted its right of dominion over a country of which it 
is in possession, and which it claims under a treaty;

[[Page 549]]
if the legislature has acted on the construction thus asserted, it is 
not in its own courts that this construction is to be denied. A question 
like this, respecting the boundaries of nations, is, as has been truly 
said, more a political than a legal question, and in its discussion, the 
courts of every country must respect the pronounced will of the 
legislature.''\593\ The doctrine thus clearly stated is further 
exemplified, with particular reference to presidential action, by 
Williams v. Suffolk Ins. Co.\594\ In this case, the underwriters of a 
vessel which had been confiscated by the Argentine Government for 
catching seals off the Falkland Islands, contrary to that Government's 
orders, sought to escape liability by showing that the Argentinean 
Government was the sovereign over these islands and that, accordingly, 
the vessel had been condemned for willful disregard of legitimate 
authority. The Court decided against the company on the ground that the 
President had taken the position that the Falkland Islands were not a 
part of Argentina. ``[C]an there be any doubt, that when the executive 
branch of the government, which is charged with our foreign relations, 
shall, in its correspondence with a foreign nation, assume a fact in 
regard to the sovereignty of any island or country, it is conclusive on 
the judicial department? And in this view, it is not material to 
inquire, nor is it the province of the court to determine, whether the 
executive be right or wrong. It is enough to know, that in the exercise 
of his constitutional functions, he had decided the question. Having 
done this, under the responsibilities which belong to him, it is 
obligatory on the people and government of the Union.

        \593\Id., 308.
        \594\13 Pet. (38 U.S.) 415 (1839).

        ``If this were not the rule, cases might often arise, in which, 
on most important questions of foreign jurisdiction, there would be an 
irreconcilable difference between the executive and judicial 
departments. By one on these departments, a foreign island or country 
might be considered as at peace with the United States; whilst the other 
would consider it in a state of war. No well-regulated government has 
ever sanctioned a principle so unwise, and so destructive of national 
character.''\595\ Thus, the right to determine the boundaries of the 
country is a political function,\596\ as is also the right to determine 
what country is sovereign of a particular region,\597\ to determine 
whether a community is entitled under international law to be considered 
a belligerent or an independent state,\598\ to

[[Page 550]]
determine whether the other party has duly ratified a treaty,\599\ to 
determine who is the de jure or de facto ruler of a country,\600\ to 
determine whether a particular person is a duly accredited diplomatic 
agent to the United States,\601\ to determine how long a military 
occupation shall continue in fulfillment of the terms of a treaty,\602\ 
to determine whether a treaty is in effect or not, although doubtless an 
extinguished treaty could be constitutionally renewed by tacit 

        \595\Id., 420.
        \596\Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829).
        \597\Williams v. Suffolk Ins. Co., 13 Pet. (38 U.S.) 415 (1839).
        \598\United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818).
        \599\Doe v. Braden, 16 How. (57 U.S.) 635, 657 (1853).
        \600\Jones v. United States, 137 U.S. 202 (1890); Oetjen v. 
Central Leather Co., 246 U.S. 297 (1918).
        \601\In re Baiz, 135 U.S. 403 (1890).
        \602\Neely v. Henkel, 180 U.S. 109 (1901).
        \603\Terlinden v. Ames, 184 U.S. 270 (1902); Charlton v. Kelly, 
229 U.S. 447 (1913).

        Recent Statements of the Doctrine.--The assumption underlying 
the refusal of courts to intervene in such cases is well stated in the 
case of Chicago & S. Airlines v. Waterman S.S. Corp.\604\ Here, the 
Court refused to review orders of the Civil Aeronautics Board granting 
or denying applications by citizen carriers to engage in overseas and 
foreign air transportation, which by the then terms of the Civil 
Aeronautics Act were subject to approval by the President and therefore 
impliedly beyond those provisions of the act authorizing judicial review 
of board orders. Elaborating on the necessity of judicial abstinence in 
the conduct of foreign relations, Justice Jackson declared for the 
Court: ``The President, both as Commander in Chief and as the Nation's 
organ for foreign affairs, has available intelligence services whose 
reports are not and ought not be published to the world. It would be 
intolerable that courts, without the relevant information, should review 
and perhaps nullify actions of the Executive taken on information 
properly held secret. Nor can courts sit in camera in order to be taken 
into executive confidences. But even if courts could require full 
disclosure, the very nature of executive decisions as to foreign policy 
is political, not judicial. Such decisions are wholly confided by our 
Constitution on the political departments of the government, Executive 
and Legislative. They are delicate, complex, and involve large elements 
of prophecy. They are and should be undertaken only by those directly 
responsible to the people whose welfare they advance or imperil. They 
are decisions of a kind for which the Judiciary has neither aptitude, 
facilities nor responsibility and which has long been held to belong in 
the domain of political power not subject to judicial intrusion or 

        \604\333 U.S. 103 (1948).
        \605\Id., 111. See also Oetjen v. Central Leather Co., 246 U.S. 
297 (1918); Ricaud v. American Metal Co., 246 U. S. 304 (1918). 
Analogous to and arising out of the same considerations as the political 
question doctrine is the ``act of state'' doctrine under which United 
States courts will not examine the validity of the public acts of 
foreign governments done within their own territory, typically, but not 
always, in disputes arising out of nationalizations. E.g., Underhill v. 
Hernandez, 168 U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 
U.S. 398 (1964); First National City Bank v. Banco Nacional de Cuba, 406 
U.S. 759 (1972); Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 
682 (1976). For succinct analysis of this amorphous doctrine, see 
Restatement, Foreign Relations, op. cit., n.262, Sec. Sec. 443-444. 
Congress has limited the reach of the doctrine in foreign expropriation 
cases by the Hickenlooper Amendments. 22 U.S.C. Sec. 2370(e)(2). 
Consider, also, Dames & Moore v. Regan, 453 U.S. 654 (1981). Similar, 
also, is the doctrine of sovereign immunity of foreign states in United 
States courts, under which jurisdiction over the foreign state, at least 
after 1952, turned upon the suggestion of the Department of State as to 
the applicability of the doctrine. See Alfred Dunhill of London v. 
Republic of Cuba, supra, 698-706 (plurality opinion), but see id., 725-
728 (Justice Marshall dissenting). For the period prior to 1952, see Z. 
& F. Assets Corp. v. Hull, 311 U.S. 470, 487 (1941). Congress in the 
Foreign Sovereign Immunities Act of 1976, P.L. 94-583, 90 Stat. 2891, 28 
U.S.C. Sec. Sec. 1330, 1332(a)(2)(3)(4), 1391(f), 1441(d), 1602-1611, 
provided for judicial determination of applicability of the doctrine but 
did adopt the executive position with respect to no applicability for 
commercial actions of a foreign state. E.g., Verlinden B. V. v. Central 
Bank of Nigeria, 461 U.S. 480 (1983); Argentine Republic v. Amerada Hess 
Shipping Corp., 488 U.S. 428 (1989). See Restatement, Foreign Relations, 
op. cit., n.262, Sec. Sec. 451-463 (including Introductory Note, pp. 


[[Page 551]]

        To the same effect are the Court's holding and opinion in 
Ludecke v. Watkins,\606\ where the question at issue was the power of 
the President to order the deportation under the Alien Enemy Act of 1798 
of a German alien enemy after the cessation of hostilities with Germany. 
Said Justice Frankfurter for the Court: ``War does not cease with a 
cease-fire order, and power to be exercised by the President such as 
that conferred by the Act of 1798 is a process which begins when war is 
declared but is not exhausted when the shooting stops. . . . The Court 
would be assuming the functions of the political agencies of the 
Government to yield to the suggestion that the unconditional surrender 
of Germany and the disintegration of the Nazi Reich have left Germany 
without a government capable of negotiating a treaty of peace. It is not 
for us to question a belief by the President that enemy aliens who were 
justifiably deemed fit subject for internment during active hostilities 
do not lose their potency for mischief during the period of confusion 
and conflict which is characteristic of a state of war even when the 
guns are silent but the peace of Peace has not come. These are matters 
of political judgment for which judges have neither technical competence 
nor official responsibility.''\607\

        \606\335 U.S. 160 (1948).
        \607\Id., 167, 170. Four Justices dissented, by Justice Black, 
who said: ``The Court . . . holds, as I understand its opinion, that the 
Attorney General can deport him whether he is dangerous or not. The 
effect of this holding is that any unnaturalized person, good or bad, 
loyal or disloyal to this country, if he was a citizen of Germany before 
coming here, can be summarily seized, interned and deported from the 
United States by the Attorney General, and that no court of the United 
States has any power whatever to review, modify, vacate, reverse, or in 
any manner affect the Attorney General's deportation order. . . . I 
think the idea that we are still at war with Germany in the sense 
contemplated by the statute controlling here is a pure fiction. 
Furthermore, I think there is no act of Congress which lends the 
slightest basis to the claim that after hostilities with a foreign 
country have ended the President or the Attorney General, one or both, 
can deport aliens without a fair hearing reviewable in the courts. On 
the contrary, when this very question came before Congress after World 
War I in the interval between the Armistice and the conclusion of formal 
peace with Germany, Congress unequivocally required that enemy aliens be 
given a fair hearing before they could be deported.'' Id., 174-175. See 
also Woods v. Miller Co., 333 U.S. 138 (1948), where the continuation of 
rent control under the Housing and Rent Act of 1947, enacted after the 
termination of hostilities, was unanimously held to be a valid exercise 
of the war power, but the constitutional question raised was asserted to 
be a proper one for the Court. Said Justice Jackson, in a concurring 
opinion: ``Particularly when the war power is invoked to do things to 
the liberties of people, or to their property or economy that only 
indirectly affect conduct of the war and do not relate to the management 
of the war itself, the constitutional basis should be scrutinized with 
care.'' Id., 146-147.


[[Page 552]]

        The most recent Court review of the political question doctrine 
is found in Baker v. Carr.\608\ There, Justice Brennan noted and 
elaborated the factors which go into making a question political and 
inappropriate for judicial decision.\609\ On the matter at hand, he 
said: ``There are sweeping statements to the effect that all questions 
touching foreign relations are political questions. Not only does 
resolution of such issues frequently turn on standards that defy 
judicial application, or involve the exercise of a discretion 
demonstrably committed to the executive or legislature; but many such 
questions uniquely demand single-voiced statement of the Government's 
views. Yet it is error to suppose that every case or controversy which 
touches foreign relations lies beyond judicial cognizance. Our cases in 
this field seem invariably to show a discriminating analysis of the 
particular question posed, in terms of the history of its management by 
the political branches, of its susceptibility to judicial handling in 
the light of its nature and posture in the specific case, and of the 
possible consequences of judicial action.''\610\ However, recently, the 
Court came within one vote of creating a broad application of the 
political question doctrine in foreign relations disputes, at least in 
the context of a dispute between Congress and the President with respect 
to a proper allocation of

[[Page 553]]
constitutional powers.\611\ In any event, the present Court, in 
adjudicating on the merits disputes in which the foreign relations 
powers are called into question, follows a policy of such deference to 
executive and congressional expertise that the result may not be 
dissimilar to a broad application of the political question 

        \608\369 U.S. 186 (1962).
        \609\Id., 217.
        \610\Id., 211-212. A case involving ``a purely legal question of 
statutory interpretation'' is not a political question simply because 
the issues have significant political and foreign relations overtones. 
Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 221, 229-230 
(1986) (Fisherman's Protective Act does not completely remove Secretary 
of Commerce's discretion in certifying that foreign nationals are 
``diminishing the effectiveness of'' an international agreement by 
taking whales in violation of quotas set pursuant to the agreement).
        \611\Goldwater v. Carter, 444 U.S. 996, 1002-1006 (Justices 
Rehnquist, Stewart, and Stevens and Chief Justice Burger). The doctrine 
was applied in just such a dispute in Dole v. Carter, 569 F.2d 1109 
(10th Cir., 1977).
        \612\``Matters intimately related to foreign policy and national 
security are rarely proper subjects for judicial intervention.'' Haig v. 
Agee, 453 U.S. 280, 292 (1981). See also Dames & Moore v. Regan, 453 
U.S. 654, 688 (1981); Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981); 
Greer v. Spock, 424 U.S. 828, 837-838 (1976); Parker v. Levy, 417 U.S. 
733, 756, 758 (1974); Harisiades v. Shaughnessy, 342 U.S. 580, 589 
(1952). Neither may private claimants seek judicial review of executive 
actions denying constitutional rights ``in such sensitive areas as 
national security and foreign policy'' in suits for damages against 
offending officials, inasmuch as the President is absolutely immune, 
Nixon v. Fitzgerald, 457 U.S. 731 (1982), and the Court has strongly 
hinted that in these areas the immunity of presidential aides and other 
executive officials ``entrusted with discretionary authority'' will be 
held to be absolute rather than qualified. Harlow v. Fitzgerald, 457 
U.S. 800, 812-813 (1982).

                      THE PRESIDENT AS LAW ENFORCER

      Powers Derived From This Duty

        The Constitution does not say that the President shall execute 
the laws, but that ``he shall take care that the laws be faithfully 
executed,'' i.e., by others, who are commonly, but not always with 
strict accuracy, termed his subordinates. What powers are implied from 
this duty? In this connection, five categories of executive power should 
be distinguished: first, there is that executive power which the 
Constitution confers directly upon the President by the opening clause 
of article II and, in more specific terms, by succeeding clauses of the 
same article; secondly, there is the sum total of the powers which acts 
of Congress at any particular time confer upon the President; thirdly, 
there is the sum total of discretionary powers which acts of Congress at 
any particular time confer upon heads of departments and other executive 
(``administrative'') agencies of the National Government; fourthly, 
there is the power which stems from the duty to enforce the criminal 
statutes of the United States; finally, there are so-called 
``ministerial duties'' which admit of no discretion as to the occasion 
or the manner of their discharge. Three principal questions arise: 
first, how does the President exercise the powers which the Constitution 
or the statutes confer upon him; second, in what relation does he stand 
by virtue of the ``take care'' clause to the powers of other executive 
or administrative

[[Page 554]]
agencies; third, in what relation does he stand to the enforcement of 
the criminal laws of the United States?\613\

        \613\Notice that in Lujan v. Defenders of Wildlife, 112 S.Ct. 
2130, 2142-2146 (1992), the Court purported to draw from the ``take 
care'' clause the principle that Congress could not authorize citizens 
with only generalized grievances to sue to compel governmental 
compliance with the law, inasmuch as permitting that would be ``to 
permit Congress to transfer from the President to the courts the Chief 
Executive's most important constitutional duty, to `take Care that the 
Laws be faithfully executed.''' Id., 2145.

        Whereas the British monarch is constitutionally under the 
necessity of acting always through agents if his acts are to receive 
legal recognition, the President is presumed to exercise certain of his 
constitutional powers personally. In the words of an opinion by Attorney 
General Cushing in 1855: ``It may be presumed that he, the man 
discharging the presidential office, and he alone, grants reprieves and 
pardons for offenses against the United States. . . . So he, and he 
alone, is the supreme commander in chief of the Army and Navy of the 
United States, and of the militia of the several States when called into 
the actual service of the United States. That is a power 
constitutionally inherent in the person of the President. No act of 
Congress, no act even of the President himself, can, by constitutional 
possibility, authorize or create any military officer not subordinate to 
the President.''\614\ Moreover, the obligation to act personally may be 
sometimes enlarged by statute, as, for example, by the act organizing 
the President with other designated officials into ``an Establishment by 
name of the Smithsonian Institute.''\615\ Here, says the Attorney 
General, ``the President's name of office is designatio personae.'' He 
was also of opinion that expenditures from the ``secret service'' fund, 
in order to be valid, must be vouched for by the President 
personally.\616\ On like grounds the Supreme Court once held void a 
decree of a court martial, because, though it has been confirmed by the 
Secretary of War, it was not specifically stated to have received the 
sanction of the President as required by the 65th Article of War.\617\ 
This case has, however, been virtually overruled, and at any rate such 
cases are exceptional.\618\

        \614\7 Ops. Atty. Gen. 453, 464-465 (1855).
        \615\9 Stat. 102 (1846), 20 U.S.C. Sec. 41.
        \616\Cf. 2 Stat. 78. The provision has long since dropped out of 
the statute book.
        \617\Runkle v. United States, 122 U.S. 543 (1887).
        \618\Cf. In re Chapman, 166 U.S. 661, 670-671 (1897), where it 
was held that presumptions in favor of official action ``preclude 
collateral attack on the sentences of courts-martial.'' See also United 
States v. Fletcher, 148 U.S. 84, 88-89 (1893); Bishop v. United States, 
197 U.S. 334, 341-342 (1905), both of which in effect repudiate Runkle.

        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

[[Page 555]]
through the head of the appropriate department, whose acts, if performed 
within the law, thus become the President's acts.\619\ Williams v. 
United States\620\ involved an act of Congress, which prohibited the 
advance of public money in any case whatever to disbursing officers of 
the United States, except under special direction by the President.\621\ 
The Supreme Court held that the act did not require the personal 
performance by the President of this duty. Such a practice, said the 
Court, if it were possible, would absorb the duties of the various 
departments of the government in the personal acts of one chief 
executive officer, and be fraught with mischief to the public service. 
The President's duty in general requires his superintendence of the 
administration; yet he cannot be required to become the administrative 
officer of every department and bureau, or to perform in person the 
numerous details incident to services which, nevertheless, he is, in a 
correct sense, by the Constitution and laws required and expected to 
perform.\622\ As a matter of administrative practice, in fact, most 
orders and instructions emanating from the heads of the departments, 
even though in pursuance of powers conferred by statute on the 
President, do not even refer to the President.\623\

        \619\The President, in the exercise of his executive power under 
the Constitution, ``speaks and acts through the heads of the several 
departments in relation to subjects which appertain to their respective 
duties.'' The heads of the departments are his authorized assistants in 
the performance of his executive duties, and their official acts, 
promulgated in the regular course of business, are presumptively his 
acts. Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 513 (1839). See also 
United States v. Eliason, 16 Pet. (41 U.S.) 291 (1842); Williams v. 
United States, 1 How. (42 U.S.) 290, 297 (1843); United States v. Jones, 
18 How. (59 U.S.) 92, 95 (1856); The Confiscation Cases, 20 Wall. (87 
U.S.) 92 (1874); United States v. Farden, 99 U.S. 10 (1879); Wolsey v. 
Chapman, 101 U.S. 755 (1880).
        \620\1 How. (42 U.S.) 290 (1843).
        \621\3 Stat. 723 (1823), now covered in 31 U.S.C. Sec. 3324.
        \622\Id., 1 How. (42 U.S.), 297-298.
        \623\38 Ops. Atty. Gen. 457, 458 (1936). And, of course, if the 
President exercises his duty through subordinates, he must appoint them 
or appoint the officers who appoint them, Buckley v. Valeo, 424 U. S. 1, 
109-143 (1976), and he must have the power to discharge those officers 
in the Executive Branch, Myers v. United States, 272 U.S. 52 (1926), 
although the Court has now greatly qualified Myers to permit 
congressional limits on the removal of some officers. Morrison v. Olson, 
487 U.S. 654 (1988).

        Impoundment of Appropriated Funds.--In his Third Annual Message 
to Congress, President Jefferson established the first faint outline of 
what has been in recent years a major controversy. Reporting that 
$50,000 in funds which Congress had appropriated for fifteen gunboats on 
the Mississippi remained unexpended, the President stated that a 
``favorable and peaceful turn of affairs on the Mississippi rendered an 
immediate execution of the law unnecessary. . . .'' But he was not 
refusing to expend the money, only de

[[Page 556]]
laying action to obtain improved gunboats; a year later, he told 
Congress that the money was being spent and gunboats were being 
obtained.\624\ A few other instances of deferrals or refusals to spend 
occurred in the Nineteenth and early Twentieth Centuries, but it was 
only with the Administration of President Franklin Roosevelt that a 
President refused to spend moneys for the purposes appropriated. 
Succeeding Presidents expanded upon these precedents, and in the Nixon 
Administration a well-formulated plan of impoundments was executed in 
order to reduce public spending and to negate programs established by 
congressional legislation.\625\

        \624\1 J. Richardson, op. cit., n.42, 348, 360.
        \625\History and law is much discussed in Executive Impoundment 
of Appropriated Funds, Hearings before the Senate Judiciary Subcommittee 
on Separation of Powers, 92d Congress, 1st sess. (1971); Impoundment of 
Appropriated Funds by the President, Hearings before the Senate 
Government Operations Ad Hoc Subcommittee on Impoundment of Funds, 93d 
Congress, 1st sess. (1973). The most thorough study of the legal and 
constitutional issues, informed through historical analysis, is Abascal 
& Kramer, Presidential Impoundment Part I: Historical Genesis and 
Constitutional Framework, 62 Geo. L. J. 1549 (1974); Abascal & Kramer, 
Presidential Impoundment Part II: Judicial and Legislative Response, 63 
id. 149 (1974). See generally L. Fisher, Presidential Spending Power 
(Princeton: 1975).

        Impoundment\626\ was defended by Administration spokesmen as 
being a power derived from the President's executive powers and 
particularly from his obligation to see to the faithful execution of the 
laws, i.e., his discretion in the manner of execution. The President, 
the argument went, is responsible for deciding when two conflicting 
goals of Congress can be harmonized and when one must give way, when, 
for example, congressional desire to spend certain moneys must yield to 
congressional wishes to see price and wage stability. In some respects, 
impoundment was said or implied to flow from certain inherent executive 
powers that repose in any President. Finally, statutory support was 
sought; certain laws were said to confer discretion to withhold 
spending, and it was argued that congressional spending programs are 
discretionary rather than mandatory.\627\

        \626\There is no satisfactory definition of impoundment. 
Legislation enacted by Congress uses the phrase ``deferral of budget 
authority'' which is defined to include: ``(A) withholding or delaying 
the obligation or expenditure of budget authority (whether by 
establishing reserves or otherwise) provided for projects or activities; 
or (B) any other type of Executive action or inaction which effectively 
precludes the obligation or expenditure of budget authority, including 
authority to obligate by contract in advance of appropriations as 
specifically authorized by law.'' 2 U.S.C. Sec. 682(1).
        \627\Impoundment of Appropriated Funds by the President, 
Hearings before the Senate Government Operations Ad Hoc Subcommittee on 
Impoundment of Funds, 93d Congress, 1st sess. (1973), 358 (then-Deputy 
Attorney General Sneed).

        On the other hand, it was argued that Congress' powers under 
Article I, Sec. 8, were fully adequate to support its decision to 
authorize certain programs, to determine the amount of funds to be spent

[[Page 557]]
on them, and to mandate the Executive to execute the laws. Permitting 
the President to impound appropriated funds allowed him the power of 
item veto which he does not have and denies Congress the opportunity to 
override his veto of bills enacted by Congress. In particular, the power 
of Congress to compel the President to spend appropriated moneys was 
said to derive from Congress' power ``to make all Laws which shall be 
necessary and proper for carrying into Execution'' the enumerated powers 
of Congress and ``all other Powers vested by this Constitution in the 
Government of the United States, or in any Department or officer 

        \628\Id., 1-6 (Senator Ervin). Of course, it was long ago 
established that Congress could direct the expenditure of at least some 
moneys from the Treasury, even over the opposition of the President. 
Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838).

        The President's decision to impound large amounts of 
appropriated funds led to two approaches to curtail the power. First, 
many persons and organizations, with a reasonable expectation of receipt 
of the impounded funds upon their release, brought large numbers of 
suits; with a few exceptions, these suits resulted in decisions denying 
the President either constitutional or statutory power to decline to 
spend or obligate funds, and the Supreme Court, presented with only 
statutory arguments by the Administration, held that no discretion 
existed under the particular statute to withhold allotments of funds to 
the States.\629\ Second, Congress in the course of revising its own 
manner of appropriating funds in accordance with budgetary 
responsibility provided for mandatory reporting of impoundments to 
Congress, for congressional disapproval of impoundments, and for court 
actions by the Comptroller General to compel spending or obligation of 

        \629\Train v. City of New York, 420 U.S. 35 (1975); Train v. 
Campaign Clean Water, 420 U.S. 136 (1975). See also State Highway Comm. 
of Missouri v. Volpe, 479 F.2d 1099 (8th Cir., 1973); Commonwealth of 
Pennsylvania v. Lynn, 501 F.2d 848 (D.C.Cir., 1974) (the latter case 
finding statutory discretion not to spend).
        \630\Congressional Budget and Impoundment Control Act, P.L. 93-
344, title X, Sec. Sec. 1001-1017, 88 Stat. 332 (1974), as amended, 2 
U.S.C. Sec. Sec. 681-688.

        Generally speaking, the law recognized two types of 
impoundments: ``routine'' or ``programmatic'' reservations of budget 
authority to provide for the inevitable contingencies that arise in 
administering congressionally-funded programs and ``policy'' decisions 
that are ordinarily intended to advance the broader fiscal or other 
policy objectives of the executive branch contrary to congressional 
wishes in appropriating funds in the first place.

        Routine reservations were to come under the terms of a revised 
Anti-Deficiency Act.\631\ Prior to its amendment, this law had per

[[Page 558]]
mitted the President to ``apportion'' funds ``to provide for 
contingencies, or to effect savings whenever savings are made possible 
by or through changes in requirements, greater efficiency of operations, 
or other developments subsequent to the date on which such appropriation 
was made available.'' President Nixon had relied on this ``other 
developments'' language as authorization to impound, for what in essence 
were policy reasons.\632\ Congress deleted the controverted clause and 
retained the other language to authorize reservations to maintain funds 
for contingencies and to effect savings made possible in carrying out 
the program; it added a clause permitting reserves ``as specifically 
provided by law.''\633\

        \631\Originally passed as the Act of Feb. 27, 1906, ch. 510, 
Sec. 3, 34 Stat. 27, 48. The provisions as described in the text were 
added in the General Appropriations Act of 1951, ch. 896, 
Sec. 1211(c)(2), 64 Stat. 595, 765. The amendments made by the 
Impoundment Control Act, were Sec. 1002, 88 Stat. 332, 31 U.S.C. 
Sec. Sec. 1341, 1512. On the Anti-Deficiency Act generally, see Stith, 
Congress' Power of the Purse, 97 Yale L. J. 1343, 1370-1377 (1988).
        \632\L. Fisher, Presidential Spending Power (Princeton: 1975), 
        \633\31 U.S.C. Sec. 1512(c)(1) (present version). Congressional 
intent was to prohibit the use of apportionment as an instrument of 
policymaking. 120 Cong. Rec. 7658 (1974) (Senator Muskie); id., 20472-
20473 (Senators Ervin and McClellan).

        ``Policy'' impoundments were to be reported to Congress by the 
President as permanent rescissions and, perhaps, as temporary 
deferrals.\634\ Rescissions are merely recommendations or proposals of 
the President and must be authorized by a bill or joint resolution, or, 
after 45 days from the presidential message, the funds must be made 
available for obligation.\635\ Temporary deferrals of budget authority 
for less than a full fiscal year, as provided in the 1974 law, were to 
be effective unless either the House of Representatives or the Senate 
passed a resolution of disapproval.\636\ With the decision in INS v. 
Chadha,\637\ voiding as unconstitutional the one-House legislative veto, 
it was evident that the veto provision in the deferral section of the 
Impoundment Control Act was no longer viable. An Administration effort 
to utilize the section, minus the veto device, was thwarted by court 
action, in which, applying established severability analysis, the court 
held that Congress would not have enacted the deferral provision in the 
absence of power to police its exercise through the veto.\638\ Thus, the 
entire deferral section was inoperative. Congress, in 1987, enacted a 
more restricted authority,

[[Page 559]]
limited to deferrals only for those purposes set out in the Anti-
Deficiency Act.\639\

        \634\Sec. Sec. 1011(1), 1012, 1013, 88 Stat. 333-334, 2 U.S.C. 
Sec. Sec. 628(1), 683, 684.
        \635\2 U.S.C. Sec. 683.
        \636\Sec. 1013, 88 Stat. 334. Because the Act was a compromise 
between the House of Representatives and the Senate, numerous questions 
were left unresolved; one important one was whether the President could 
use the deferral avenue as a means of effectuating policy impoundments 
or whether rescission proposals were the sole means. The subsequent 
events described in the text mooted that argument.
        \637\462 U.S. 919 (1983).
        \638\City of New Haven v. United States, 809 F.2d 900 (D.C.Cir. 
        \639\P. L. 100-119, title II, Sec. 206(a), 101 Stat. 785, 2 
U.S.C. Sec. 684.

        With passage of the Act, the constitutional issues faded into 
the background; Presidents regularly reported rescission proposals, and 
Congress responded by enacted its own rescissions, usually topping the 
Presidents'. The entire field was, of course, confounded by the 
application of the other part of the 1974 law, the Budget Act, which 
restructured how budgets were received and acted on in Congress, and by 
the Balanced Budget and Emergency Deficit Control Act of 1985.\640\ This 
latter law was designed as a deficit-reduction forcing mechanism, so 
that unless President and Congress cooperates each year to reduce the 
deficit by prescribed amounts, a ``sequestration'' order would reduce 
funds down to a mandated figure.\641\ Dissatisfaction with the amount of 
deficit reduction continues to stimulate discussion of other means, such 
as ``expedited'' rescission and the line-item veto, many of which may 
raise some constitutional issues.

        \640\P. 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. Sec. 901 et seq.
        \641\See Stith, Rewriting the Fiscal Constitution: The Case of 
Gramm-Rudman-Hollings, 76 Calif. L. Rev. 593 (1988).
      Power and Duty of the President in Relation to Subordinate 
        Executive Officers

        Suppose, that the law casts a duty upon a head of department eo 
nomine, does the President thereupon become entitled by virtue of his 
duty to ``take care that the laws be faithfully executed,'' to 
substitute his own judgment for that of the principal officer regarding 
the discharge of such duty? In the debate in the House in 1789 on the 
location of the removal power, Madison argued that it ought to be 
attributed to the President alone because it was ``the intention of the 
Constitution, expressed especially in the faithful execution clause, 
that the first magistrate should be responsible for the executive 
department,'' and this responsibility, he held, carried with it the 
power to ``inspect and control'' the conduct of subordinate executive 
officers. ``Vest,'' said he, ``the power [of removal] in the Senate 
jointly with the President, and you abolish at once the great principle 
of unity and responsibility in the executive department, which was 
intended for the security of liberty and the public good.''\642\

        \642\1 Annals of Cong. 495, 499 (1789).

        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

[[Page 560]]
Treasury, Madison assumed a very different attitude, conceding in effect 
that this office was to be an arm of certain of Congress' own powers and 
should therefore be protected against the removal power.\643\ And in 
Marbury v. Madison,\644\ Chief Justice Marshall traced a parallel 
distinction between the duties of the Secretary of State under the 
original act which had created a ``Department of Foreign Affairs'' and 
those which had been added by the later act changing the designation of 
the department to its present one. The former were, he pointed out, 
entirely in the ``political field,'' and hence for their discharge the 
Secretary was left responsible absolutely to the President. The latter, 
on the other hand, were exclusively of statutory origin and sprang from 
the powers of Congress. For these, therefore, the Secretary was ``an 
officer of the law'' and ``amenable to the law for his conduct.''\645\

        \643\Id., 611-612.
        \644\1 Cr. (5 U.S.) 137 (1803).
        \645\Id., 165-166.

        Administrative Decentralization Versus Jacksonian Centralism.--
An opinion rendered by Attorney General Wirt in 1823 asserted the 
proposition that the President's duty under the ``take care'' clause 
required of him scarcely more than that he should bring a criminally 
negligent official to book for his derelictions, either by removing him 
or by setting in motion against him the processes of impeachment or of 
criminal prosecutions.\646\ The opinion entirely overlooked the 
important question of the location of the power to interpret the law 
which is inevitably involved in any effort to enforce it. The 
diametrically opposed theory that Congress is unable to vest any head of 
an executive department, even within the field of Congress' specifically 
delegated powers, with any legal discretion which the President is not 
entitled to control was first asserted in unambiguous terms in President 
Jackson's Protest Message of April 15, 1834,\647\ defending his removal 
of Duane as Secretary of the Treasury, because of the latter's refusal 
to remove the deposits from the Bank of the United States. Here it is 
asserted ``that the entire executive power is vested in the President;'' 
that the power to remove those officers who are to aid him in the 
execution of the laws is an incident of that power; that the Secretary 
of the Treasury was such an officer; that the custody of the public 
property and money was an executive function exercised through the 
Secretary of the Treasury and his subordinates; that in the performance 
of these duties the Secretary was subject to the supervision and control 
of the President; and finally that the

[[Page 561]]
act establishing the Bank of the United States ``did not, as it could 
not change the relation between the President and Secretary--did not 
release the former from his obligation to see the law faithfully 
executed nor the latter from the President's supervision and 
control.''\648\ In short, the President's removal power, in this case 
unqualified, was the sanction provided by the Constitution for his power 
and duty to control his ``subordinates'' in all their official actions 
of public consequence.

        \646\1 Ops. Atty. Gen. 624 (1823).
        \647\3 J. Richardson, op. cit., n.42, 1288.
        \648\Id., 1304.

        Congressional Power Versus Presidential Duty to the Law.--Four 
years late the case of Kendall v. United States ex rel. Stokes,\649\ was 
decided. The United States owed one Stokes money, and when Postmaster 
General Kendall, at Jackson's instigation, refused to pay it, Congress 
passed a special act ordering payment. Kendall, however, still proved 
noncompliant, whereupon Stokes sought and obtained a mandamus in the 
United States circuit court for the District of Columbia, and on appeal 
this decision was affirmed by the Supreme Court. While Kendall, like 
Marbury v. Madison, involved the question of the responsibility of a 
head of a department for the performance of a ministerial duty, the 
discussion by counsel before the Court and the Court's own opinion 
covered the entire subject of the relation of the President to his 
subordinates in the performance by them of statutory duties. The lower 
court had asserted that the duty of the President under the faithful 
execution clause gave him no other control over the officer than to see 
that he acts honestly, with proper motives, but no power to construe the 
law and see that the executive action conforms to it. Counsel for 
Kendall attacked this position vigorously, relying largely upon 
statements by Hamilton, Marshall, James Wilson, and Story having to do 
with the President's power in the field of foreign relations.

        \649\12 Pet. (37 U.S.) 524 (1838).

        The Court rejected the implication with emphasis. There are, it 
pointed out, ``certain political duties imposed upon many officers in 
the executive department, the discharge of which is under the direction 
of the President. But it would be an alarming doctrine, that Congress 
cannot impose upon any executive officer any duty they may think proper, 
which is not repugnant to any rights secured and protected by the 
Constitution; and in such cases the duty and responsibility grow out of 
and are subject to the control of the law, and not to the direction of 
the President. And this is emphatically the case, where the duty 
enjoined is of a mere ministerial character.''\650\ In short, the Court 
recognized the underlying ques

[[Page 562]]
tion of the case to be whether the President's duty to ``take care that 
the laws be faithfully executed'' made it constitutionally impossible 
for Congress ever to entrust the construction of its statutes to anybody 
but the President, and it answered this in the negative.

        \650\Id., 610.

        Myers Versus Morrison.--How does this issue stand today? The 
answer to this question, so far as there is one, is to be sought in a 
comparison of the Court's decision in the Myers case, on the one hand, 
and its decision in the Morrison case, on the other.\651\ The first 
decision is still valid to support the President's right to remove, and 
hence to control the decisions of, all officials through whom he 
exercises the great political powers which he derives from the 
Constitution and also of many but not all officials--usually heads of 
departments--through whom he exercises powers conferred upon him by 
statute. Morrison, however, recasts Myers to be about the constitutional 
inability of Congress to participate in removal decisions. It permits 
Congress to limit the removal power of the President, and those acting 
for him, by imposition of a ``good cause'' standard, subject to a 
balancing test. That is, the Court now regards the critical issue not as 
what officials do, whether they perform ``purely executive'' functions 
or ``quasi'' legislative or judicial functions, though the duties and 
functions must be considered. Rather, the Courts must ``ensure that 
Congress does not interfere with the President's exercise of the 
`executive power'' and his constitutionally appointed duty to `take care 
that the laws be faithfully executed' under Article II.''\652\ Thus, the 
Court continued, Myers was correct in its holding and in its suggestion 
that there are some executive officials who must be removable by the 
President if he is to perform his duties.\653\ On the other hand, 
Congress may believe that it is necessary to protect the tenure of some 
officials, and if it has good reasons not limited to invasion of 
presidential prerogatives, it will be sustained, provided the removal 
restrictions are not of such a nature as to impede the President's 
ability to perform his constitutional duties.\654\ The officer in 
Morrison, the independent counsel, had investigative and prosecutorial 
functions, purely executive ones, but there were good reasons for 
Congress to secure her tenure and no showing that the restriction 
``unduly trammels'' presidential powers.\655\

        \651\Myers v. United States, 272 U.S. 52 (1926); Morrison v. 
Olson, 487 U.S. 654 (1988).
        \652\Id., 689-690.
        \653\Id., 690-691.
        \654\Id., 691.
        \655\Id., 691-692.

        The ``bright-line'' rule previously observed no longer holds. 
Now, Congress has a great deal more leeway in regulating execu

[[Page 563]]
tive officials, but it must articulate its reasons carefully and observe 
the fuzzy lines set by the Court.

        Power of the President to Guide Enforcement of the Penal Law.--
This matter also came to a head in ``the reign of Andrew Jackson,'' 
preceding, and indeed foreshadowing, the Duane episode by some months. 
``At that epoch,'' Wyman relates in his Principles of Administrative 
Law, ``the first amendment of the doctrine of centralism in its entirety 
was set forth in an obscure opinion upon an unimportant matter--The 
Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels . . . 
were stolen from the Princess by one Polari and were seized by the 
officers of the United States Customs in the hands of the thief. 
Representations were made to the President of the United States by the 
Minister of the Netherlands of the facts in the matter, which were 
followed by a request for return of the jewels. In the meantime the 
District Attorney was prosecuting condemnation proceedings in behalf of 
the United States which he showed no disposition to abandon. The 
President felt himself in a dilemma, whether if it was by statute the 
duty of the District Attorney to prosecute or not, the President could 
interfere and direct whether to proceed or not. The opinion was written 
by Taney, then Attorney General; it is full of pertinent illustrations 
as to the necessity in an administration of full power in the chief 
executive as the concomitant of his full responsibility. It concludes: 
If it should be said that, the District Attorney having the power to 
discontinue the prosecution, there is no necessity for inferring a right 
in the President to direct him to exercise it--I answer that the 
direction of the President is not required to communicate any new 
authority to the District Attorney, but to direct him in the execution 
of a power he is admitted to possess. The most valuable and proper 
measure may often be for the President to order the District Attorney to 
discontinue prosecution. The District Attorney might refuse to obey the 
President's order; and if he did refuse, the prosecution, while he 
remained in office, would still go on; because the President himself 
could give no order to the court or to the clerk to make any particular 
entry. He could only act through his subordinate officer, the District 
Attorney, who is responsible to him and who holds his office at his 
pleasure. And if that officer still continues a prosecution which the 
President is satisfied ought not to continue, the removal of the 
disobedient officer and the substitution of one more worthy in his place 
would enable the President through him faithfully to execute the law. 
And it is for this among other

[[Page 564]]
reasons that the power of removing the District Attorney resides in the 

        \656\B. Wyman, The Principles of the Administrative Law 
Governing the Relations of Public Officers (St. Paul: 1903), 231-232.
      The President as Law Interpreter

        The power accruing to the President from his function of law 
interpretation preparatory to law enforcement is daily illustrated in 
relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, 
the Internal Security Act, and many lesser statutes. Nor is this the 
whole story. Not only do all presidential regulations and orders based 
on statutes that vest power in him or on his own constitutional powers 
have the force of law, provided they do not transgress the Court's 
reading of such statutes or of the Constitution,\657\ but he sometimes 
makes law in a more special sense. In the famous Neagle case,\658\ an 
order of the Attorney General to a United States marshal to protect a 
Justice of the Supreme Court whose life has been threatened by a suitor 
was attributed to the President and held to be ``a law of the United 
States'' in the sense of Sec. 753 of the Revised Statutes, and as such 
to afford basis for a writ of habeas corpus transferring the marshal, 
who had killed the attacker, from state to national custody. Speaking 
for the Court, Justice Miller inquired: ``Is this duty [the duty of the 
President to take care that the laws be faithfully executed] limited to 
the enforcement of acts of Congress or of treaties of the United States 
according to their express terms, or does it include the rights, duties 
and obligations growing out of the Constitution itself, our 
international relations, and all the protection implied by the nature of 
the government under the Constitution?''\659\ Obviously, an affirmative 
answer is assumed to the second branch of this inquiry, an assumption 
which is borne out by numerous precedents. And in United States v. 
Midwest Oil Company,\660\ it was ruled that the President had, by dint 
of repeated assertion of it from an early date, acquired the right to 
withdraw, via the Land Department, public

[[Page 565]]
lands, both mineral and nonmineral, from private acquisition, Congress 
having never repudiated the practice.

        \657\United States v. Eliason, 16 Pet. (41 U.S.) 291, 301-302 
(1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 
116 U.S. 167, 180-181 (1886). For a recent analysis of the approach to 
determining the validity of presidential, or other executive, 
regulations and orders under purported congressional delegations or 
implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301-
316 (1979).
        \658\In re Neagle, 135 U.S. 1 (1890).
        \659\Id., 64. The phrase, ``a law of the United States,'' came 
from the Act of March 2, 1833 (4 Stat. 632). However, in the Act of June 
25, 1948, 62 Stat. 965, 28 U.S.C. Sec. 2241(c)(2), the phrase is 
replaced by the term, ``an act of Congress,'' thereby eliminating the 
basis of the holding in Neagle.
        \660\236 U.S. 459 (1915). See also Mason v. United States, 260 
U.S. 545 (1923).
      Military Power in Law Enforcement: The Posse Comitatus

        ``Whenever the President considers that unlawful obstructions, 
combinations, or assemblages, or rebellion against the authority of the 
United States, make it impracticable to enforce the laws of the United 
States in any State or Territory by the ordinary course of judicial 
proceedings, he may call into Federal service such of the militia of any 
State, and use such of the armed forces, as he considers necessary to 
enforce those laws or to suppress the rebellion.

        ``The President, by using the militia or the armed forces, or 
both . . . shall take such measures as he considers necessary to 
suppress, in a State, any insurrection, domestic violence, unlawful 
combination, or conspiracy, if it--(1) so hinders the execution of the 
laws of that State, and of the United States within the State, that any 
part or class of its people is deprived of a right, privilege, immunity, 
or protection named in the Constitution and secured by law . 
. . .''\661\

        \661\10 U.S.C. Sec. Sec. 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 . . . .''

        These quoted provisions of the United States Code consolidate a 
course of legislation which began at the time of the Whiskey Rebellion 
of 1792.\662\ In Martin v. Mott,\663\ which arose out of the War of 
1812, it was held that the authority to decide whether the exigency had 
arisen belonged exclusively to the President.\664\ Even before that 
time, Jefferson had, in 1808, in the course of his efforts to enforce 
the Embargo Acts, issued a proclamation ordering ``all officers having 
authority, civil or military, who shall be found in the vicinity'' of an 
unruly combination, to aid and assist ``by all means in their power, by 
force of arms or otherwise'' the suppression of

[[Page 566]]
such combination.\665\ Forty-six years later, Attorney General Cushing 
advised President Pierce that in enforcing the Fugitive Slave Act of 
1850, marshals of the United States had authority when opposed by 
unlawful combinations to summon to their aid not only bystanders and 
citizens generally, but armed forces within their precincts, both state 
militia and United States officers, soldiers, sailors, and marines,\666\ 
a doctrine that Pierce himself improved upon two years later by 
asserting, with reference to the civil war then raging in Kansas, that 
it lay within his obligation to take care that the laws be faithfully 
executed to place the forces of the United States in Kansas at the 
disposal of the marshal there, to be used as a portion of the posse 
comitatus. Lincoln's call of April 15, 1861, for 75,000 volunteers was, 
on the other hand, a fresh invocation, though of course on a vastly 
magnified scale, of Jefferson's conception of a posse comitatus subject 
to presidential call.\667\ The provisions above extracted from the 
United States Code ratified this conception as regards the state 
militias and the national forces.

        \662\1 Stat. 264 (1792); 1 Stat. 424 (1794); 2 Stat. 443 (1807); 
12 Stat. 281 (1861); now covered by 10 U.S.C. Sec. Sec. 332-334.
        \663\12 Wheat. (25 U.S.) 19 (1827).
        \664\Id., 31-32.
        \665\Wilson, Federal Aid in Domestic Disturbances, S. Doc. No. 
209, 57th Congress, 2d Sess. (1907), 51.
        \666\6 Ops. Atty. Gen. 446 (1854). By the Posse Comitatus Act of 
1878, 20 Stat. 152, 18 U.S.C. Sec. 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. Sec. Sec. 332, 334] the military forces, under 
the direction of the President, could be used to assist a marshal. 16 
Ops. Atty. Gen. 162.'' B. Rich, The Presidents and Civil Disorder  
(Washington: 1941), 196 n. 21.
        \667\12 Stat. (app.) 1258.
      Suspension of Habeas Corpus by the President

        See Article I, Sec. 9.

      Preventive Martial Law

        The question of executive power in the presence of civil 
disorder is dealt with in modern terms in Moyer v. Peabody,\668\ to 
which the Debs case\669\ may be regarded as an addendum. Moyer, a labor 
leader, brought suit against Peabody for having ordered his arrest 
during a labor dispute which occurred while Peabody was governor of 
Colorado. Speaking for a unanimous Court, one Justice being absent, 
Justice Holmes said: ``Of course the plaintiff's position is that he has 
been deprived of his liberty without due process of law. But it is 
familiar that what is due process of law depends

[[Page 567]]
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.

        \668\212 U.S. 78 (1909).
        \669\In re Debs, 158 U.S. 564 (1895).

        ``. . . 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 

        \670\212 U.S., 84-85. See also Sterling v. Constantin, 287 U.S. 
378 (1932), which endorses Moyer v. Peabody, while emphasizing the fact 
that it applies only to a condition of disorder.

        The Debs Case.--The Debs case of 1895 arose out of a railway 
strike which had caused the President to dispatch troops to Chicago the 
previous year. Coincidentally with this move, the United States district 
attorney stationed there, acting upon orders from Washington, obtained 
an injunction from the United States circuit court forbidding the strike 
because of its interference with the mails and with interstate commerce. 
The question before the Supreme Court was whether this injunction, for 
violation of which Debs had been jailed for contempt of court, had been 
granted with jurisdiction. Conceding, in effect, that there was no 
statutory warrant for the injunction, the Court nevertheless validated 
it on the ground that the Government was entitled thus to protect its 
property in the mails, and on a much broader ground which is stated in 
the following passage of Justice Brewer's opinion for the Court: ``Every 
government, entrusted, by the very terms of its being, with powers and 
duties to be exercised and discharged for the general

[[Page 568]]
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 

        \671\158 U.S., 584, 586. Some years earlier, in United States v. 
San Jacinto Tin Co., 125 U.S. 273, 279 (1888), the Court sustained the 
right of the Attorney General and his assistants to institute suits 
simply by virtue of their general official powers. ``If,'' the Court 
said, ``the United States in any particular case has a just cause for 
calling upon the judiciary of the country, in any of its courts, for 
relief . . . the question of appealing to them must primarily be decided 
by the Attorney General . . . and if restrictions are to be placed upon 
the exercise of this authority it is for Congress to enact them.'' Cf. 
Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792), in which the Court rejected 
Attorney General Randolph's contention that he had the right ex officio 
to move for a writ of mandamus ordering the United States circuit court 
for Pennsylvania to put the Invalid Pension Act into effect.

        Present Status of the Debs Case.--Insofar as the use of 
injunctive relief in labor disputes is concerned, enactment of the 
Norris-LaGuardia Act\672\ placed substantial restrictions on the power 
of federal courts to issue injunctions in such situations. Though, in 
United States v. UMW,\673\ the Court held that the Norris-LaGuardia Act 
did not apply where the Government brought suit as operator of mines, 
language in the opinion appeared to go a good way toward repudiating the 
present viability of Debs, though more in terms of congressional 
limitations than of revised judicial opinion.\674\ It should be noted 
that in 1947 Congress authorized the President to seek injunctive relief 
in ``national emergency'' labor disputes, which would seem to imply 
absence of authority to act in situations not meeting the statutory 

        \672\47 Stat. 170 (1932), 29 U.S.C. Sec. Sec. 101-115.
        \673\330 U.S. 258 (1947). In reaching the result, Chief Justice 
Vinson invoked the ``rule that statutes which in general terms divest 
preexisting rights or privileges will not be applied to the sovereign 
without express words to that effect.'' Id., 272.
        \674\Thus, the Chief Justice noted that ``we agree'' that the 
debates on Norris-LaGuardia ``indicate that Congress, in passing the 
Act, did not intend to permit the United States to continue to intervene 
by injunction in purely private labor disputes.'' Of course, he 
continued, ``whether Congress so intended or not is a question different 
from the one before us now.'' Id., 278.
        \675\61 Stat. 136, 155 (1947), 29 U.S.C. Sec. Sec. 176-180. Cf. 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), with regard 
to the exclusivity of proceeding.


[[Page 569]]

        With regard to the power of the President to seek injunctive 
relief in other situations without statutory authority, there is no 
clear precedent. In New York Times Co. v. United States,\676\ the 
Government sought to enjoin two newspapers from publishing classified 
material given to them by a dissident former governmental employee. 
Though the Supreme Court rejected the Government's claim, five of the 
six majority Justices relied on First Amendment grounds, apparently 
assuming basic power to bring the action in the first place, and three 
dissenters were willing to uphold the constitutionality of the 
Government's action and its basic power on the premise that the 
President was authorized to protect the secrecy of governmental 
documents. Only one Justice denied expressly that power was lacking 
altogether to sue.\677\

        \676\403 U.S. 713 (1971).
        \677\On Justice Marshall's view on the lack of authorization, 
see id., 740-748 (concurring opinion); for the dissenters on this issue, 
see id., 752, 755-759 (Justice Harlan, with whom Chief Justice Burger 
and Justice Blackmun joined); and see id., 727, 729-730 (Justice 
Stewart, joined by Justice White, concurring).
      The President's Duty in Cases of Domestic Violence in the States

        See Article IV, Sec. 4, pp. 892-895, and Supra, pp. 487-488.

      The President as Executor of the Law of Nations

        Illustrative of the President's duty to discharge the 
responsibilities of the United States in international law with a view 
to avoiding difficulties with other governments was the action of 
President Wilson in closing the Marconi Wireless Station at Siasconset, 
Massachusetts, on the outbreak of the European War in 1914, the company 
having refused assurance that it would comply with naval censorship 
regulations. Justifying this drastic invasion of private rights, 
Attorney General Gregory said: ``The President of the United States is 
at the head of one of the three great coordinate departments of the 
Government. He is Commander in Chief of the Army and the Navy. . . . If 
the President is of the opinion that the relations of this country with 
foreign nations are, or are likely to be endangered by action deemed by 
him inconsistent with a due neutrality, it is his right and duty to 
protect such relations; and in doing so, in the absence of any statutory 
restrictions, he may act through such executive office or department as 
appears best adapted to effectuate the desired end. . . . I do not 
hesitate, in view of the extraordinary conditions existing, to advise 
that the President, through the Secretary of the Navy or any appropriate 
department, close down, or take charge of and operate, the plant . . . 
should he

[[Page 570]]
deem it necessary in securing obedience to his proclamation of 

        \678\30 Ops. Atty. Gen. 291 (1914).


        In 1854, one Lieutenant Hollins, in command of a United States 
warship, bombarded the town of Greytown, Nicaragua because of the 
refusal of local authorities to pay reparations for an attack by a mob 
on the United States consul.\679\ Upon his return to the United States, 
Hollins was sued in a federal court by Durand for the value of certain 
property which was alleged to have been destroyed in the bombardment. 
His defense was based upon the orders of the President and Secretary of 
the Navy and was sustained by Justice Nelson, on circuit.\680\ ``As the 
Executive head of the nation, the President is made the only legitimate 
organ of the General Government, to open and carry on correspondence or 
negotiations with foreign nations, in matters concerning the interests 
of the country or of its citizens. It is to him, also, the citizens 
abroad must look for protection of person and of property, and for the 
faithful execution of the laws existing and intended for their 
protection. For this purpose, the whole Executive power of the country 
is placed in his hands, under the Constitution, and the laws passed in 
pursuance thereof; and different Departments of government have been 
organized, through which this power may be most conveniently executed, 
whether by negotiation or by force--a Department of State and a 
Department of the Navy.

        \679\7 J. Moore, Digest of International Law (Washington: 1906), 
        \680\Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 

        ``Now, as it respects the interposition of the Executive abroad, 
for the protection of the lives or property of the citizen, the duty 
must, of necessity, rest in the discretion of the President. Acts of 
lawless violence, or of threatened violence to the citizen or his 
property, cannot be anticipated and provided for; and the protection, to 
be effectual or of any avail, may, not infrequently, require the most 
prompt and decided action. Under our system of Government, the citizen 
abroad is as much entitled to protection as the citizen at home. The 
great object and duty of Government is the protection of the lives, 
liberty, and property of the people composing it, whether abroad or at 
home; and any Government failing in the accomplishment of the object, or 
the performance of the duty, is not worth preserving.''\681\

        \681\Id., 112.

[[Page 571]]

        This incident and this case were but two items in the 19th 
century advance of the concept that the President had the duty and the 
responsibility to protect American lives and property abroad through the 
use of armed forces if deemed necessary.\682\ The duty could be said to 
grow out of the inherent powers of the Chief Executive\683\ or perhaps 
out of his obligation to ``take Care that the Laws be faithfully 
executed.''\684\ Although there were efforts made at times to limit this 
presidential power narrowly to the protection of persons and property 
rather than to the promotion of broader national interests,\685\ no such 
distinction was observed in practice and so grew the concepts which have 
become the source of serious national controversy in the 1960s and 
1970s, the power of the President to use troops abroad to observe 
national commitments and protect the national interest without seeking 
prior approval from Congress.

        \682\See United States Solicitor of the Department of State, 
Right to Protect Citizens in Foreign Countries by Landing Forces  
(Washington: 3d rev. ed. 1934); M. Offutt, The Protection of Citizens 
Abroad by the Armed Forces of the United States (Baltimore: 1928).
        \683\Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 
        \684\M. Offutt, op. cit., n.682, 5.
        \685\E. Corwin, op. cit., n.44, 198-201.

        Congress and the President versus Foreign Expropriation.--
Congress has asserted itself in one area of protection of United States 
property abroad, making provision against uncompensated expropriation of 
property belonging to United States citizens and corporations. The 
problem of expropriation of foreign property and the compensation to be 
paid therefor remains an unsettled area of international law, of 
increasing importance because of the changes and unsettled conditions 
following World War II.\686\ It has been the position of the Executive 
Branch that just compensation is owed all United States property owners 
dispossessed in foreign countries and the many pre-World War II disputes 
were carried on between the President and the Department of State and 
the nation involved. But commencing with the Marshall Plan in 1948, 
Congress has enacted programs of guaranties to American investors in 
specified foreign countries.\687\ More relevant to discussion here is 
that Congress has attached to United States foreign assistance programs 
various amendments requiring the termination of assistance and imposing 
other economic inducements where uncompensated expropriations have been 
instituted.\688\ And when the

[[Page 572]]
Supreme Court in 1964 applied the ``act of state'' doctrine so as not to 
examine the validity of a taking of property by a foreign government 
recognized by the United States but to defer to the decision of the 
foreign government,\689\ Congress reacted by attaching another amendment 
to the foreign assistance act reversing the Court's application of the 
doctrine, except in certain circumstances, a reversal which was applied 
on remand of the case.\690\

        \686\Cf. Metzger, Property in International Law, 50 Va. L. Rev. 
594 (1964); Vaughn, Finding the Law of Expropriation: Traditional v. 
Quantitative Research, 2 Texas Intl. L. Forum 189 (1966).
        \687\62 Stat. 143 (1948), as amended, 22 U.S.C. Sec. 2191 et 
seq. See also 22 U.S.C. Sec. 1621 et seq.
        \688\76 Stat. 260 (1962), 22 U.S.C. Sec. 2370(e)(1).
        \689\Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
        \690\78 Stat. 1013 (1964), as amended, 22 U.S.C. 
Sec. 2370(e)(2), applied on remand in Banco Nacional de Cuba v. Farr, 
243 F. Supp. 957 (S.D.N.Y. 1965), affd. 383 F. 2d 166 (2d Cir., 1967), 
cert. den., 390 U.S. 956 (1968).


        To avert a nationwide strike of steel workers which he believed 
would jeopardize the national defense, President Truman, on April 8, 
1952, issued an executive order directing the Secretary of Commerce to 
seize and operate most of the steel industry of the country.\691\ The 
order cited no specific statutory authorization but invoked generally 
the powers vested in the President by the Constitution and laws of the 
United States. The Secretary issued the appropriate orders to steel 
executives. The President promptly reported his action to Congress, 
conceding Congress' power to supersede his order, but Congress did not 
do so, either then or a few days later when the President sent up a 
special message.\692\ On suit by the steel companies, a federal district 
court enjoined the seizure,\693\ and the Supreme Court brought the case 
up prior to decision by the court of appeals.\694\ Six-to-three, the 
Court affirmed the district court order, each member of the majority, 
however, contributing an individual opinion as well as joining in some 
degree the opinion of the Court by Justice Black.\695\ The holding and 
the multiple opinions represent a setback for the adherents of ``inher

[[Page 573]]
ent'' executive powers,\696\ but they raise difficult conceptual and 
practical problems with regard to presidential powers.

        \691\E.O. 10340, 17 Fed. Reg. 3139 (1952).
        \692\H. Doc. No. 422, 82d Congress, 2d sess. (1952), 98 Cong. 
Rec. 3912 (1952); H. Doc. No. 496, 82d Congress, 2d sess. (1952), 98 
Cong. Rec. 6929 (1952).
        \693\103 F. Supp. 569 (D.D.C. 1952).
        \694\The court of appeals had stayed the district court's 
injunction pending appeal. 197 F.2d 582 (D.C.Cir., 1952). The Supreme 
Court decision bringing the action up is at 343 U.S. 937 (1952). 
Justices Frankfurter and Burton dissented.
        \695\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 
In the majority with Justice Black were Justices Frankfurter, Douglas, 
Jackson, Burton, and Clark. Dissenting were Chief Justice Vinson and 
Justices Reed and Minton. For critical consideration of the case, see 
Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 
Colum. L. Rev. 53 (1953); Roche, Executive Power and Domestic Emergency: 
The Quest for Prerogative, 5 West. Pol. Q. 592 (1952). For a 
comprehensive account, see M. Marcus, Truman and the Steel Seizure Case: 
The Limits of Presidential Power (New York: 1977).
        \696\Indeed, the breadth of the Government's arguments in the 
district court may well have contributed to the defeat, despite the much 
more measured contentions set out in the Supreme Court. See A. Westin, 
The Anatomy of a Constitutional Law Case (New York: 1958), 56-65 
(argument in district court).

        The Doctrine of the Opinion of the Court.--The chief points 
urged in the Black opinion are the following: There was no statute that 
expressly or impliedly authorized the President to take possession of 
the property involved. On the contrary, in its consideration of the 
Taft-Hartley Act in 1947, Congress refused to authorize governmental 
seizures of property as a method of preventing work stoppages and 
settling labor disputes. Authority to issue such an order in the 
circumstances of the case was not deducible from the aggregate of the 
President's executive powers under Article II of the Constitution; nor 
was the order maintainable as an exercise of the President's powers as 
Commander-in-Chief of the Armed Forces. The power sought to be exercised 
was the lawmaking power, which the Constitution vests in the Congress 
alone. Even if it were true that other Presidents have taken possession 
of private business enterprises without congressional authority in order 
to settle labor disputes, Congress was not thereby divested of its 
exclusive constitutional authority to make the laws necessary and proper 
to carry out all powers vested by the Constitution ``in the Government 
of the United States, or any Department or Officer thereof.''\697\

        \697\Id., 343 U.S., 585-589.

        The Doctrine Considered.--The pivotal proposition of the opinion 
of the Court is that, inasmuch as Congress could have directed the 
seizure of the steel mills, the President had no power to do so without 
prior congressional authorization. To this reasoning, not only the 
dissenters but Justice Clark would not concur and in fact stated baldly 
that the reasoning was contradicted by precedent, both judicial and 
presidential and congressional practice. One of the earliest 
pronouncements on presidential power in this area was that of Chief 
Justice Marshall in Little v. Barreme.\698\ There, a United States 
vessel under orders from the President had seized a United States 
merchant ship bound from a French port allegedly carrying contraband 
material; Congress had, however, provided for seizure only of such 
vessels bound to French ports.\699\ Said the Chief Justice: ``It is by 
no means clear that the president of the United States whose high duty 
it is to `take care that the laws be faithfully executed,' and who is 
commander in chief of the armies

[[Page 574]]
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 

        \698\2 Cr. (6 U.S.) 170 (1804).
        \699\1 Stat. 613 (1799).
        \700\Little v. Barreme, 2 Cr. (6 U.S.) 170, 177-178 (1804).

        Other examples are at hand. In 1799, President Adams, in order 
to execute the extradition provisions of the Jay Treaty, issued a 
warrant for the arrest of one Robbins and the action was challenged in 
Congress on the ground that no statutory authority existed by which the 
President could act; John Marshall defended the action in the House of 
Representatives, the practice continued, and it was not until 1848 that 
Congress enacted a statute governing this subject.\701\ Again, in 1793, 
President Washington issued a neutrality proclamation; the following 
year, Congress enacted the first neutrality statute and since then 
proclamations of neutrality have been based on acts of Congress.\702\ 
Repeatedly, acts of the President have been in areas in which Congress 
could act as well.\703\

        \701\10 Annals of Cong. 596, 613-614 (1800). The argument was 
endorsed in Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893). 
The presence of a treaty, of which this provision was self-executing, is 
sufficient to distinguish this example from the steel seizure situation.
        \702\Cf. E. Corwin, The President's Control of Foreign Relations 
(New York: 1916), ch. 1.
        \703\Corwin, The Steel Seizure Case: A Judicial Brick Without 
Straw, 53 Colum. L. Rev. 53, 58-59 (1953).

        Justice Frankfurter's concurring opinion\704\ listed statutory 
authorizations for seizures of industrial property, 18 in all of which 
all but the first were enacted between 1916 and 1951, and summaries of 
seizures of industrial plants and facilities by Presidents without 
definite statutory warrant, eight of which occurred during World War I, 
justified in the presidential orders as being done pursuant to ``the 
Constitution and laws'' generally, and eleven of which occurred in World 
War II.\705\ The first such seizure in this period had been justified by 
then Attorney General Jackson as being based upon an ``aggregate'' of 
presidential powers stemming from his duty to see the laws faithfully 
executed, his commander-in-

[[Page 575]]
chiefship, and his general executive powers.\706\ Chief Justice Vinson's 
dissent dwelt liberally upon this opinion,\707\ which reliance drew a 
disclaimer from Justice Jackson, concurring.\708\

        \704\Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 
        \705\Id., 611-613, 620.
        \706\89 Cong. Rec. 3992 (1943).
        \707\Id., 343 U.S., 695-696 (dissenting opinion).
        \708\Thus, Justice Jackson noted of the earlier seizure, that 
``[i]ts superficial similarities with the present case, upon analysis, 
yield to distinctions so decisive that it cannot be regarded as even a 
precedent, much less an authority for the present seizure.'' Id., 648-
649 (concurring opinion). His opinion opens with the sentence: ``That 
comprehensive and undefined presidential powers hold both practical 
advantages and grave dangers for the country will impress anyone who has 
served as legal adviser to a President in time of transition and public 
anxiety.'' Id., 634.

        The dissent was also fortunate in that chief counsel for the 
steel companies was the eminent John W. Davis, who, as Solicitor General 
of the United States, had filed a brief in defense of Presidential 
action in 1914, which had taken precisely the view which the dissent now 
presented on this issue.\709\ ``Ours,'' the brief read, ``is a self-
sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 
371, 395; In re Debs, 158 U.S. 564, 578.) `Its means are adequate to its 
ends' (McCulloch v. Maryland, 4 Wheat., 316 424), and it is rational to 
assume that its active forces will be found equal in most things to the 
emergencies that confront it. While perfect flexibility is not to be 
expected in a Government of divided powers, and while division of power 
is one of the principal features of the Constitution, it is the plain 
duty of those who are called upon to draw the dividing lines to 
ascertain the essential, recognize the practical, and avoid a slavish 
formalism which can only serve to ossify the Government and reduce its 
efficiency without any compensating good. The function of making laws is 
peculiar to Congress, and the Executive can not exercise that function 
to any degree. But this is not to say that all of the subjects 
concerning which laws might be made are perforce removed from the 
possibility of Executive influence. The Executive may act upon things 
and upon men in many relations which have not, though they might have, 
been actually regulated by Congress. In other words, just as there are 
fields which are peculiar to Congress and fields which are peculiar to 
the Executive, so there are fields which are common to both, in the 
sense that the Executive may move within them until they shall have been 
occupied by legislative action. These are not the fields of legislative 
prerogative, but fields within which the lawmaking powers may enter and 
dominate whenever it chooses. This situation results from the fact that 
the President is the active agent, not of Congress, but of the Nation. 
As such he performs the duties which the Constitution lays upon him imme

[[Page 576]]
diately, and as such, also, he executes the laws and regulations adopted 
by Congress. He is the agent of the people of the United States, 
deriving all his powers from them and responsible directly to them. In 
no sense is he the agent of Congress. He obeys and executes the laws of 
Congress, but because Congress is enthroned in authority over him, not 
because the Constitution directs him to do so.

        \709\Brief for the United States, United States v. Midwest Oil 
Co., 236 U.S. 459 (1915), 11, 75-77.

        ``Therefore it follows that in ways short of making laws or 
disobeying them, the Executive may be under a grave constitutional duty 
to act for the national protection in situations not covered by the acts 
of Congress, and in which, even, it may not be said that his action is 
the direct expression of any particular one of the independent powers 
which are granted to him specifically by the Constitution. Instances 
wherein the President has felt and fulfilled such a duty have not been 
rare in our history, though, being for the public benefit and approved 
by all, his acts have seldom been challenged in the courts.''\710\

        \710\Quoted in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 
579, 667, 689-691 (1952) (dissenting opinion).

        Power Denied by Congress.--Justice Black's opinion of the Court 
notes that Congress had refused to give the President seizure authority 
and had authorized other actions, which had not been taken.\711\ This 
statement led him only to conclude that since the power claimed did not 
stem from Congress, it had to be found in the Constitution. But four of 
the concurring Justices made considerably more of the fact that Congress 
had considered seizure and had refused to authorize it. Justice 
Frankfurter stated: ``We must . . . put to one side consideration of 
what powers the President would have had if there had been no 
legislation whatever bearing on the authority asserted by the seizure, 
or if the seizure had been only for a short, explicitly temporary 
period, to be terminated automatically unless Congressional approval 
were given.''\712\ He then reviewed the proceedings of Congress that 
attended the enactment of the Taft-Hartley Act and concluded that 
``Congress has expressed its will to withhold this power [of seizure] 
from the President as though it had said so in so many words.''\713\

        \711\Id., 585-587.
        \712\Id., 597.
        \713\Id., 602.

        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,

[[Page 577]]
his authority is at its maximum, for it includes all that he possess in 
his own right plus all that Congress can delegate. . . . 2. When the 
President acts in absence of either a congressional grant or denial of 
authority, he can only rely upon his own independent powers, but there 
is a zone of twilight in which he and Congress may have concurrent 
authority, or in which its distribution is uncertain. . . . 3. When the 
President takes measures incompatible with the expressed or implied will 
of Congress, his power is at its lowest ebb, for then he can rely only 
upon his own constitutional powers minus any constitutional powers of 
Congress over the matter. Courts can sustain exclusive presidential 
control in such a case only by disabling the Congress from acting upon 
the subject.''\714\ The seizure in question was placed in the third 
category ``because Congress has not left seizure of private property an 
open field but has covered it by three statutory policies inconsistent 
with this seizure.'' Therefore, ``we can sustain the President only by 
holding that seizure of such strike-bound industries is within his 
domain and beyond control by Congress.''\715\ That holding was not 

        \714\Id., 635-638.
        \715\Id., 639, 640.

        Justice Burton, referring to the Taft-Hartley Act, said that 
``the most significant feature of that Act is its omission of authority 
to seize,'' citing debate on the measure to show that the omission was a 
conscious decision.\716\ Justice Clark placed his reliance on Little v. 
Barreme,\717\ inasmuch as Congress had laid down specific procedures for 
the President to follow, which he had declined to follow.\718\

        \716\Id., 657.
        \717\2 Cr. (6 U.S.) 170 (1804).
        \718\Id., 343 U.S., 662, 663.

        Despite the opinion of the Court, therefore, it seems clear that 
four of the six Justices in the majority were more moved by the fact 
that the President had acted in a manner considered and rejected by 
Congress in a field in which Congress was empowered to establish the 
rules, rules the President is to see faithfully executed, than with the 
fact that the President's action was a form of ``lawmaking'' in a field 
committed to the province of Congress. The opinion of the Court, 
therefore, and its doctrinal implications must be considered with care, 
inasmuch as it is doubtful that the opinion does lay down a 
constitutional rule. Whatever the implications of the opinions of the 
individual Justices for the doctrine of ``inherent'' presidential 
powers--and they are significant--the implications for the

[[Page 578]]
area here under consideration are cloudy and have remained so from the 
time of the decision.\719\

        \719\In Dames & Moore v. Regan, 453 U.S. 654, 668-669 (1981), 
the Court recurred to the Youngstown analysis for resolution of the 
presented questions, but one must observe that it did so saying that 
``the parties and the lower courts . . . have all agreed that much 
relevant analysis is contained in'' Youngstown. See also id., 661-662, 
quoting Justice Jackson's Youngstown concurrence, ``which both parties 
agree brings together as much combination of analysis and common sense 
as there is in this area''.


        By the decision of the Court in Mississippi v. Johnson,\720\ in 
1867, the President was placed beyond the reach of judicial direction, 
either affirmative or restraining, in the exercise of his powers, 
whether constitutional or statutory, political or otherwise, save 
perhaps for what must be a small class of powers that are purely 
ministerial.\721\ An application for an injunction to forbid President 
Johnson to enforce the Reconstruction Acts, on the ground of their 
unconstitutionality, was answered by Attorney General Stanberg, who 
argued, inter alia, the absolute immunity of the President from judicial 
process.\722\ The Court refused to permit the filing, using language 
construable as meaning that the President was not reachable by judicial 
process but which more fully paraded the horrible consequences were the 
Court to act. First noting the limited meaning of the term 
``ministerial,'' the Court observed that ``[v]ery different is the duty 
of the President in the exercise of the power to see that the laws are 
faithfully executed, and among these laws the acts named in the bill. 
. . . The duty thus imposed on the President is in no just sense 
ministerial. It is purely executive and political.

        \720\4 Wall. (71 U.S.) 475 (1867).
        \721\The Court declined to express an opinion ``whether, in any 
case, the President of the United States may be required, by the process 
of this court, to perform a purely ministerial act under a positive law, 
or may be held amenable, in any case, otherwise than by impeachment for 
crime.'' Id., 498. See Franklin v. Massachusetts, 112 S.Ct. 2767, 2788-
2790 (1992) (Justice Scalia concurring). In National Treasury Employees 
Union v. Nixon, 492 F.2d 587 (D.C.Cir. 1974), the court held that a writ 
of mandamus could issue to compel the President to perform a ministerial 
act, although it said that if any other officer were available to whom 
the writ could run it should be applied to him.
        \722\Mississippi v. Johnson, 4 Wall. (71 U.S.) 475, 484-485 
(1867) (argument of counsel).

        ``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

[[Page 579]]
constitutional legislation, but to restrain such action under 
legislation alleged to be unconstitutional. But we are unable to 
perceive that this circumstance takes the case out of the general 
principles which forbid judicial interference with the exercise of 
Executive discretion.

        . . .

        ``The Congress is the legislative department of the government; 
the President is the executive department. Neither can be restrained in 
its action by the judicial department; though the acts of both, when 
performed, are, in proper cases, subject to its cognizance.

        ``The impropriety of such interference will be clearly seen upon 
consideration of its possible consequences.

        ``Suppose the bill filed and the injunction prayed for allowed. 
If the President refuse obedience, it is needless to observe that the 
court is without power to enforce its process. If, on the other hand, 
the President complies with the order of the court and refuses to 
execute the acts of Congress, is it not clear that a collision may occur 
between the executive and legislative departments of the government? May 
not the House of Representatives impeach the President for such refusal? 
And in that case could this court interfere, in behalf of the President, 
thus endangered by compliance with its mandate, and restrain by 
injunction the Senate of the United States from sitting as a court of 
impeachment? Would the strange spectacle be offered to the public world 
of an attempt by this court to arrest proceedings in that court?''\723\

        \723\Id., 499, 500-501. One must be aware that the case was 
decided in the context of congressional predominance following the Civil 
War. The Court's restraint was pronounced when it denied an effort to 
file a bill of injunction to enjoin enforcement of the same acts 
directed to cabinet officers. Georgia v. Stanton, 6 Wall. (73 U.S.) 50 
(1867). Before and since, however, the device to obtain review of the 
President's actions has been to bring suit against the subordinate 
officer charged with carrying out the President's wishes. Kendall v. 
United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838); Panama 
Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. 
v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process 
against the President. In Franklin v. Massachusetts, 112 S.Ct. 2767 
(1992), resolving a long-running dispute, the Court held that the 
President is not subject to the Administrative Procedure Act and his 
actions, therefore, are not reviewable in suits under the Act. Inasmuch 
as some agency action, the acts of the Secretary of Commerce in this 
case, is preliminary to presidential action, the agency action is not 
``final'' for purposes of APA review. Constitutional claims would still 
be brought, however.

        Rare has been the opportunity for the Court to elucidate its 
opinion in Mississippi v. Johnson, and, in the Watergate tapes 
case,\724\ it held the President amenable to subpoena to produce 
evidence for use in a criminal case without dealing, except obliquely,

[[Page 580]]
with its prior opinion. The President's counsel had argued the President 
was immune to judicial process, claiming ``that the independence of the 
Executive Branch within its own sphere . . . insulates a President from 
a judicial subpoena in an ongoing criminal prosecution, and thereby 
protects confidential Presidential communications.''\725\ However, the 
Court held, ``neither the doctrine of separation of powers, nor the need 
for confidentiality of high-level communications, without more, can 
sustain an absolute, unqualified Presidential privilege of immunity from 
judicial process under all circumstances.''\726\ The primary 
constitutional duty of the courts ``to do justice in criminal 
prosecutions'' was a critical counterbalance to the claim of 
presidential immunity and to accept the President's argument would 
disturb the separation-of-powers function of achieving ``a workable 
government'' as well as ``gravely impair the role of the courts under 
Art. III.''\727\

        \724\United States v. Nixon, 418 U.S. 683 (1974).
        \725\Id., 706.
        \727\Id., 706-707. The issue was considered more fully by the 
lower courts. In re Grand Jury Subpoena to Richard M. Nixon, 360 F. 
Supp. 1, 6-10 (D.D.C. 1973) (Judge Sirica), affd. sub nom., Nixon v. 
Sirica, 487 F.2d 700, 708-712 (D.C.Cir. 1973) (en banc) (refusing to 
find President immune from process). Present throughout was the 
conflicting assessment of the result of the subpoena of President 
Jefferson in the Burr trial. United States v. Burr, 25 Fed. Cas. 187 
(No. 14,694) (C.C.D.Va. 1807). For the history, see Freund, Foreword: On 
Presidential Privilege, The Supreme Court, 1973 Term, 88 Harv. L. Rev. 
13, 23-30 (1974).

        Present throughout the Watergate crisis, and unresolved by it, 
was the question of the amenability of the President to criminal 
prosecution prior to conviction upon impeachment.\728\ It was argued 
that the impeachment clause necessarily required indictment and trial in 
a criminal proceeding to follow a successful impeachment and that a 
President in any event was uniquely immune from indictment, and these 
arguments were advanced as one ground to deny enforcement of the 
subpoenas running to the President.\729\ Assertion of the same argument 
by Vice President Agnew was controverted by the Government, through the 
Solicitor General, but, as to the President, it was argued that for a 
number of constitutional

[[Page 581]]
and practical reasons he was not subject to ordinary criminal 

        \728\The impeachment clause, Article I, Sec. 3, cl. 7, provides 
that the party convicted upon impeachment shall nonetheless be liable to 
criminal proceedings. Morris in the Convention, 2 M. Farrand, The 
Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 
500, and Hamilton in The Federalist, Nos. 65, 69 (J. Cooke ed., 1961), 
442, 463, asserted that criminal trial would follow a successful 
        \729\Brief for the Respondent, United States v. Nixon, 418 U.S. 
683 (1974), 95-122; Nixon v. Sirica, 487 F.2d 700, 756-758 (D.C.Cir., 
1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the 
President's petition to review the propriety of the grand jury's naming 
him as an unindicted coconspirator, but it dismissed that petition 
without reaching the question. United States v. Nixon, supra, 687 n. 2.
        \730\Memorandum for the United States, Application of Spiro T. 
Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).

        Finally, most recently, the Court has definitively resolved one 
of the intertwined issues of presidential accountability. The President 
is absolutely immune in actions for civil damages for all acts within 
the ``outer perimeter'' of his official duties.\731\ The Court's close 
decision was premised on the President's ``unique position in the 
constitutional scheme,'' that is, it was derived from the Court's 
inquiry of a ``kind of `public policy' analysis'' of the ``policies and 
principles that may be considered implicit in the nature of the 
President's office in a system structured to achieve effective 
government under a constitutionally mandated separation of 
powers.''\732\ While the Constitution expressly afforded Members of 
Congress immunity in matters arising from ``speech or debate,'' and 
while it was silent with respect to presidential immunity, the Court 
nonetheless considered such immunity ``a functionally mandated incident 
of the President's unique office, rooted in the constitutional tradition 
of the separation of powers and supported by our history.''\733\ 
Although the Court relied in part upon its previous practice of finding 
immunity for officers, such as judges, as to whom the Constitution is 
silent, although a long common-law history exists, and in part upon 
historical evidence, which it admitted was fragmentary and 
ambiguous,\734\ the Court's principal focus was upon the fact that the 
President was distinguishable from all other executive officials. He is 
charged with a long list of ``supervisory and policy responsibilities of 
utmost discretion and sensitivity,''\735\ and diversion of his energies 
by concerns with private lawsuits would ``raise unique risks to the 
effective functioning of government.''\736\ Moreover, the presidential 
privilege is rooted in the separation-of-powers doctrine, counseling 
courts to tread carefully before intruding. Some interests are important 
enough to require judicial action; ``merely private suit[s] for damages 
based on a President's official acts'' do not serve this ``broad public 
interest'' necessitating the courts to act.\737\ Finally, qualified 
immunity would not adequately protect the President, because judicial 
inquiry into a functional

[[Page 582]]
analysis of his actions would bring with it the evil immunity was to 
prevent; absolute immunity was required.\738\

        \731\Nixon v. Fitzgerald, 457 U.S. 731 (1982).
        \732\Id., 748.
        \733\Id., 749.
        \734\Id., 750-752 n. 31.
        \735\Id., 750.
        \736\Id., 751.
        \737\Id., 754.
        \738\Id., 755-757. Justices White, Brennan, Marshall, and 
Blackmun dissented. The Court reserved decision whether Congress could 
expressly create a damages action against the President and abrogate the 
immunity, id., 748-749 n. 27, thus appearing to disclaim that the 
decision is mandated by the Constitution; Chief Justice Burger disagreed 
with the implication of this footnote, id., 763-764 n. 7 (concurring 
opinion), and the dissenters noted their agreement on this point with 
the Chief Justice. Id., 770 & n. 4.

        The President's Subordinates.--While the courts may be unable to 
compel the President to act or to prevent him from acting, his acts, 
when performed, are in proper cases subject to judicial review and 
disallowance. Typically, the subordinates through whom he acts may be 
sued, in a form of legal fiction, to enjoin the commission of acts which 
might lead to irreparable damage\739\ or to compel by writ of mandamus 
the performance of a duty definitely required by law,\740\ such suits 
being usually brought in the United States District Court for the 
District of Columbia.\741\ In suits under the common law, a subordinate 
executive officer may be held personally liable in damages for any act 
done in excess of authority,\742\ although immunity exists for anything, 
even malicious wrongdoing, done in the course of his duties.\743\

        \739\E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 
(1952) (suit to enjoin Secretary of Commerce to return steel mills 
seized on President's order); Dames & Moore v. Regan, 453 U.S. 654 
(1981) (suit against Secretary of Treasury to nullify presidential 
orders on Iranian assets). See also Noble v. Union River Logging 
Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 
        \740\E.g., Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803) (suit 
against Secretary of State to compel delivery of commissions of office); 
Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838) 
(suit against Postmaster General to compel payment of money owed under 
act of Congress); Decatur v. Paulding, 14 Pet. (39 U.S.) 497 (1840) 
(suit to compel Secretary of Navy to pay a pension).
        \741\This was originally on the theory that the Supreme Court of 
the District of Columbia had inherited, via the common law of Maryland, 
the jurisdiction of the King's Bench ``over inferior jurisdictions and 
officers.'' Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 
524, 614, 620-621 (1838). Congress has now authorized federal district 
courts outside the District of Columbia also to entertain such suits. 76 
Stat. 744 (1962), 28 U.S.C. Sec. 1361.
        \742\E.g., Little v. Barreme, 2 Cr. (6 U.S.) 170 (1804); Bates 
v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); 
Virginia Coupon Cases, 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 
10 (1896).
        \743\Spalding 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).

        Different rules prevail when such an official is sued for a 
``constitutional tort'' for wrongs allegedly in violation of our basic 
charter,\744\ although the Court has hinted that in some ``sensitive''

[[Page 583]]
areas officials acting in the ``outer perimeter'' of their duties may be 
accorded an absolute immunity from liability.\745\ Jurisdiction to reach 
such officers for acts for which they can be held responsible must be 
under the general ``federal question'' jurisdictional statute, which, as 
recently amended, requires no jurisdictional amount.\746\

        \744\An implied cause of action against officers accused of 
constitutional violations was recognized in Bivens v. Six Unknown Named 
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz 
v. Economou, 438 U.S. 478 (1978), 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. Sec. 1983. In Harlow v. Fitzgerald, 457 
U.S. 800 (1982), the Court denied presidential aides derivative absolute 
presidential immunity, but it modified the rules of qualified immunity, 
making it more difficult to hold such aides, other federal officials, 
and indeed state and local officials, liable for constitutional torts. 
In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended 
qualified immunity to the Attorney General for authorizing a warrantless 
wiretap in a case involving domestic national security. Although the 
Court later held such warrantless wiretaps violated the Fourth 
Amendment, at the time of the Attorney General's authorization this 
interpretation was not ``clearly established,'' and the Harlow immunity 
protected officials exercising discretion on such open questions. See 
also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly 
opaque opinion, the Court extended similar qualified immunity to FBI 
agents who conducted a warrantless search).
        \745\Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
        \746\See 28 U.S.C. Sec. 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. Sec. 1442(a).


                               ARTICLE II

                          EXECUTIVE DEPARTMENT

  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.


        Few provisions of the Constitution were adopted from English 
practice to the degree the section on impeachment was. In Eng

[[Page 584]]
land, impeachment was a device to remove from office one who abused his 
office or misbehaved but who was protected by the Crown.\748\ It was a 
device that figured in the plans proposed to the Convention from the 
first, and the arguments went to such questions as what body was to try 
impeachments and what grounds were to be stated as warranting 
impeachment.\749\ The attention of the Framers was for the most part 
fixed on the President and his removal, and the results of this narrow 
frame of reference are reflected in the questions unresolved by the 
language of the Constitution.

        \747\Impeachment is the subject of several other provisions of 
the Constitution. Article I, Sec. 2, cl. 5, gives to the House of 
Representatives ``the sole power of impeachment.'' Article I, Sec. 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, Sec. 3, cl. 7, limits the judgment after impeachment 
to removal from office and disqualification from future federal office 
holding, but it allows criminal trial and conviction following 
impeachment. Article II, Sec. 2, cl. 1, deprives the President of the 
power to grant pardons or reprieves in cases of impeachment. Article 
III, Sec. 2, cl. 3, excepts impeachment cases from the jury trial 
        The word ``impeachment'' may be used to mean several different 
things. Any member of the House may ``impeach'' an officer of the United 
States by presenting a petition or memorial, which is generally referred 
to a committee for investigation and report. The House votes to 
``impeach,'' the meaning used in Sec. 4, when it adopts articles of 
impeachment. The Senate then conducts a trial on these articles and if 
the accused is convicted, he has been ``impeached.'' See 3 A. Hinds' 
Precedents of the House of Representatives of the United States 
(Washington: 1907), 2469-2485, for the range of forms.
        \748\1 W. Holdsworth, History of English Law (London: 7th ed. 
1956), 379-385; Clarke, The Origin of Impeachment, in Oxford Essays in 
Medieval History, Presented to Herbert Salter (Oxford: 1934), 164.
        \749\Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653-
667 (1916).
      Persons Subject to Impeachment

        During the debate in the First Congress on the ``removal'' 
controversy, it was contended by some members that impeachment was the 
exclusive way to remove any officer of the Government from his 
post,\750\ but Madison and others contended that this position was 
destructive of sound governmental practice,\751\ and the view did not 
prevail. Impeachment, said Madison, was to be used to reach a bad 
officer sheltered by the President and to remove him ``even against the 
will of the President; so that the declaration in the Constitution was 
intended as a supplementary security for the good behavior of the public 
officers.''\752\ The language of Sec. 4 does not leave any doubt that 
any officer in the executive branch is subject to the power; it does not 
appear that military officers are subject to it\753\ nor that members of 
Congress can be impeached.\754\

        \750\1 Annals of Cong. 457, 473, 536 (1789).
        \751\Id., 375, 480, 496-497, 562.
        \752\Id., 372.
        \753\3 W. Willoughby, op. cit., n.294, 1448.
        \754\This point was established by a vote of the Senate holding 
a plea to this effect good in the impeachment trial of Senator William 
Blount in 1797. 3 A. Hinds' Precedents of the House of Representatives 
of the United States  (Washington: 1907), 2294-2318; F. Wharton, State 
Trials of the United States During the Administrations of Washington and 
Adams (Philadelphia: 1849), 200-321.

        Judges.--Article III, Sec. 1, specifically provides judges with 
``good behavior'' tenure, but the Constitution nowhere expressly vests 
the power to remove upon bad behavior; it has been assumed that judges 
are made subject to the impeachment power through

[[Page 585]]
being labeled ``civil officers.''\755\ The records in the Convention 
make this a plausible though not necessary interpretation.\756\ And, in 
fact, twelve of the fifteen impeachments reaching trial in the Senate 
have been directed at federal judges.\757\ So settled apparently is the 
interpretation that the major arguments, scholarly and

[[Page 586]]
political, have concerned the question whether judges, as well as 
others, are subject to impeachment for conduct which does not constitute 
an indictable offense and the question whether impeachment is the 
exclusive removal device with regard to judges.\758\

        \755\See National Comm. on Judicial Discipline & Removal, Report 
of the National Comm. on Judicial Discipline & Removal (1993), 9-11. The 
Commission was charged by Congress, P. L. 101-650, 104 Stat. 5124, with 
investigating and studying problems and issues relating to discipline 
and removal of federal judges, to evaluate the advisability of 
developing alternatives to impeachment, and to report to the three 
Government Branches. The report and the research papers produced for it 
contains a wealth of information on the subject.
        \756\For practically the entire Convention, the plans presented 
and adopted provided that the Supreme Court was to try impeachments. 1 
M. Farrand, op. cit., n.4, 22, 244, 223-224, 231; 2 id., 186. On August 
27, it was successfully moved that the provision in the draft of the 
Committee on Detail giving the Supreme Court jurisdictions of trials of 
impeachment be postponed, id., 430, 431, which was one of the issues 
committed to the Committee of Eleven. Id., 481. That Committee reported 
the provision giving the Senate power to try all impeachments, id., 497, 
which the Convention thereafter approved. Id., 551. It may be assumed 
that so long as trial was in the Supreme Court, the Framers did not 
intend that the Justices, at least, were to be subject to the process.
        The Committee of Five on August 20 was directed to report ``a 
mode for trying the supreme Judges in cases of impeachment,'' id., 337, 
and it returned a provision making Supreme Court Justices triable by the 
Senate on impeachment by the House. Id., 367. Consideration of this 
report was postponed. On August 27, it was proposed that all federal 
judges should be removable by the executive upon the application of both 
houses of Congress, but the motion was rejected. Id., 428-429. The 
matter was not resolved by the report of the Committee on Style, which 
left in the ``good behavior'' tenure but contained nothing about 
removal. Id., 575. Therefore, unless judges were included in the term 
``civil officers,'' which had been added without comment on September 8 
to the impeachment clause, id., 552, they were not made removable. But 
see infra. n.758.
        \757\The House of Representatives has approved articles of 
impeachment for thirteen judges. Two of the judges resigned before the 
trials in the Senate. After Senate trials, seven judges were convicted 
and removed. Those judges who were tried were: John Pickering, District 
Judge, 1803-1804, convicted, 3 A. Hinds' Precedents of the House of 
Representatives of the United States  (Washington: 1907), 2319-2341; 
Justice Samuel Chase, 1804-1805, acquitted, id., 2342-2363; James H. 
Peck, District Judge, 1830, acquitted, id., 2364-2384; West H. 
Humphreys, District Judge, 1862, convicted, id., 2385-2397; Charles 
Swayne, District Judge, 1904-1905, acquitted, id., 2469-2485; Robert W. 
Archbald, Judge of Commerce Court, 1912-1913, convicted, 6 C. Cannon's 
Precedents of the House of Representatives of the United States 
(Washington: 1936), 498-512; Harold Louderback, District Judge, 1932, 
acquitted, id., 513-524; Halsted L. Ritter, 1936, District Judge, 
convicted, Proceedings of the United States Senate in the Trial of 
Impeachment of Halsted L. Ritter, S. Doc. No. 200, 74th Congress, 2d 
sess. (1936); Harry Claiborne, District Judge, 1986, convicted, 
Proceedings of the United States Senate in the Impeachment Trial of 
Harry E. Claiborne, S. Doc. 99-48, 99th Cong., 2d sess. (1986); Alcee 
Hastings, District Judge, 1989, convicted, Proceedings of the United 
States Senate in the Impeachment Trial of Alcee L. Hastings, S. Doc. 
101-18, 101st Cong., 1st sess. (1989); Walter Nixon, District Judge, 
1989, convicted, Proceedings of the United States Senate in the 
Impeachment Trial of Walter L. Nixon, Jr., S. Doc. 101-22, 101st Cong., 
1st sess. (1989). For discussions of these and of the four acquittals, 
see A. Boyan (ed.), Constitutional Aspects of Watergate: Documents and 
Materials (Dobbs Ferry, N.Y.: 1976) (per listings).
        \758\Briefly, it has been argued that the impeachment clause of 
Article II is a limitation on the power of Congress to remove judges and 
that Article III is a limitation on the executive power of removal, but 
that it is open to Congress to define ``good behavior'' and establish a 
mechanism by which judges may be judicially removed. Shartel, Federal 
Judges--Appointment, Supervision, and Removal--Some Possibilities Under 
the Constitution,'' 28 Mich. L. Rev. 485, 723, 870 (1930). Proposals to 
this effect were considered in Congress in the 1930s and 1940s and 
revived in the late 1960s, stimulating much controversy in scholarly 
circles. E.g., Kramer & Barron, The Constitutionality of Removal and 
Mandatory Retirement Procedures for the Federal Judiciary: The Meaning 
of ``During Good Behavior'', 35 G.W.L. Rev. 455 (1967); Ziskind, 
Judicial Tenure in the American Constitution: English and American 
Precedents, 1969 Sup. Ct. Rev. 135; Berger, Impeachment of Judges and 
`Good Behavior' Tenure, 79 Yale L. J. 1475 (1970) Congress did in the 
Judicial Conduct and Disability Act of 1980, P. L. 96-458, 94 Stat. 
2035, 28 U.S.C. Sec. 1 note, 331, 332, 372, 604, provide for judicial 
council of the circuit disciplinary powers over federal judges, but it 
specifically denied any removal power. The National Commission, op. 
cit., n.755, 17-26, found impeachment to be the exclusive means of 
removal and recommended against adoption of an alternative. The issue 
has been obliquely before the Court as a result of a judicial conference 
action disciplining a district judge, but it was not reached, Chandler 
v. Judicial Council, 382 U.S. 1003 (1966); id., 398 U.S. 74 (1970), 
except by Justices Black and Douglas in dissent, who argued that 
impeachment was the exclusive power.
      Impeachable Offenses

        The Convention came to its choice of words describing the 
grounds for impeachment after much deliberation, but the phrasing 
derived directly from the English practice. The framers early adopted, 
on June 2, a provision that the Executive should be removable by 
impeachment and conviction ``of mal-practice or neglect of duty.''\759\ 
The Committee of Detail reported as grounds ``Treason (or) Bribery or 
Corruption.''\760\ And the Committee of Eleven reduced the phrase to 
``Treason, or bribery.''\761\ On September 8, Mason objected to this 
limitation, observing that the term did not encompass all the conduct 
which should be grounds for removal; he therefore proposed to add ``or 
maladministration'' following ``bribery.'' Upon Madison's objection that 
``[s]o vague a term will be equivalent to a tenure during pleasure of 
the Senate,'' Mason suggested ``other high crimes and misdemeanors,'' 
which was adopted without further recorded debate.\762\ The phrase in 
the context of impeachments has an ancient English history, first 
turning up in the impeachment of the Earl of Suffolk in 1388.\763\

        \759\1 M. Farrand, op. cit., n.4, 88, 90, 230.
        \760\2 id., 172, 186.
        \761\Id., 499.
        \762\Id., 550.
        \763\1 T. Howell, State Trials and Proceedings for High Treason 
and Other Crimes and Misdemeanors from the Earliest Period to the 
Present Times (London: 1809), 90, 91; A. Simpson, Treatise on Federal 
Impeachments (Philadelphia: 1916), 86.


[[Page 587]]

        Treason is defined in the Constitution;\764\ bribery is not, but 
it had a clear common-law meaning and is now well covered by 
statute.\765\ High crimes and misdemeanors, however, is an undefined and 
indefinite phrase, which, in England, had comprehended conduct not 
constituting indictable offenses.\766\ In an unrelated action, the 
Convention had seemed to understand the term ``high misdemeanor'' to be 
quite limited in meaning,\767\ but debate prior to adoption of the 
phrase\768\ and comments thereafter in the ratifying conventions\769\ 
were to the effect that the President at least, and all the debate was 
in terms of the President, should be removable by impeachment for 
commissions or omissions in office which were not criminally cognizable. 
And in the First Congress' ``removal'' debate, Madison maintained that 
the wanton removal from office of meritorious officers would be an act 
of maladministration which would render the President subject to 
impeachment.\770\ Other comments, especially in the ratifying 
conventions, tend toward a limitation of the term to criminal, perhaps 
gross criminal, behavior.\771\ While conclusions may be drawn from the 
conflicting statement, it must always be recognized that a respectable 
case may be made for either view.

        \764\Article III, 3.
        \765\The use of a technical term known in the common law would 
require resort to the common law for its meaning, United States v. 
Palmer, 3 Wheat. (16 U.S.) 610, 630 (1818) (per Chief Justice Marshall); 
United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 
1813) (per Justice Washington), leaving aside the issue of the 
cognizability of common law crimes in federal courts. See Act of April 
30, 1790, Sec. 21, 1 Stat. 117.
        \766\Berger, Impeachment for ``High Crimes and Misdemeanors,'' 
44 S. Calif. L. Rev. 395, 400-415 (1971).
        \767\The extradition provision reported by the Committee on 
Detail had provided for the delivering up of persons charged with 
``Treason, Felony or high Misdemeanors.'' 2 M. Farrand, op. cit., n.4, 
174. But the phrase ``high Misdemeanors'' was replaced with ``other 
crimes,'' ``in order to comprehend all proper cases: it being doubtful 
whether `high misdemeanor' had not a technical meaning too limited.'' 
Id., 443.
        \768\See id., 64-69, 550-551.
        \769\E.g., 3 J. Elliot, Debates in the Several State Conventions 
on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528 
(Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 
(Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke 
ed., 1961), 439-445 (Hamilton).
        \770\1 Annals of Cong. 372-373 (1789).
        \771\4 J. Elliot, op. cit., n.769, 126 (Iredell); 2 id., 478 

        Practice over the years, however, insofar as the Senate deems 
itself bound by the actions of previous Senates, would appear to limit 
the grounds of conviction to indictable criminal offenses for all 
officers, with the possible exception of judges.

        The Chase Impeachment.--The issue was early joined as a 
consequence of the Jefferson Administration's efforts to rid itself of

[[Page 588]]
some of the Federalist judges who were propagandizing the country 
through grand jury charges and other means. The theory of extreme 
latitude was enunciated by Senator Giles of Virginia during the 
impeachment trial of Justice Chase. ``The power of impeachment was given 
without limitation to the House of Representatives; and the power of 
trying impeachments was given equally without limitation to the Senate. 
. . . A trial and removal of a judge upon impeachment need not imply any 
criminality or corruption in him . . . [but] nothing more than a 
declaration of Congress to this effect: You hold dangerous opinions, and 
if you are suffered to carry them into effect you will work the 
destruction of the nation. We want your offices, for the purpose of 
giving them to men who will fill them better.''\772\ Chase's counsel 
responded that to be impeachable, conduct must constitute an indictable 
offense.\773\ Though Chase's acquittal owed more to the political 
divisions in the Senate than to the merits of the arguments, it did go 
far to affix the latter reading to the phrase ``high Crimes and 
Misdemeanors'' until the turbulent period following the Civil War.\774\

        \772\1 J. Q. Adams, Memoirs (Philadelphia: 1874), 322. See also 
3 A. Hinds' Precedents of the House of Representatives of the United 
States (Washington: 1907), 739, 753.
        \773\Id., 762.
        \774\The full record is S. Smith & T. Lloyd (eds.), Trial of 
Samuel Chase, An Associate Justice of the Supreme Court of the United 
States . . . (Washington: 1805). On the political background and the 
meaning of the trial and acquittal, see Lillich, The Chase Impeachment, 
4 Amer. J. Legal Hist. 49 (1960).

        The Johnson Impeachment.--President Johnson was impeached by the 
House on the ground that he had violated the ``Tenure of Office'' 
Act\775\ by dismissing a Cabinet chief. The theory of the proponents of 
impeachment was succinctly put by Representative Butler, one of the 
managers of the impeachment in the Senate trial. ``An impeachable high 
crime or misdemeanor is one in its nature or consequences subversive of 
some fundamental or essential principle of government or highly 
prejudicial to the public interest, and this may consist of a violation 
of the Constitution, of law, of an official oath, or of duty, by an act 
committed or omitted, or, without violating a positive law, by the abuse 
of discretionary powers from improper motives or for an improper 
purpose.''\776\ Former Justice Benjamin Curtis controverted this 
argument, saying: ``My first position is, that when the Constitution 
speaks of `treason, bribery, and other high crimes and misdemeanors,' it 
refers to, and includes only, high criminal offences against the United 
States, made so by some law of the United States existing when the acts

[[Page 589]]
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.''\777\ The President's acquittal by a single vote was no 
doubt not the result of a choice between the two theories, but the 
result may be said to have placed a gloss on the impeachment language 
approximating the theory of the defense.

        \775\Act of March 2, 1867, 14 Stat. 430.
        \776\1 Trial of Andrew Johnson, President of the United States 
on Impeachment (Washington: 1868), 88, 147.
        \777\Id., 409.

        Later Judicial Impeachments.--With regard to federal judges, 
however, several successful impeachments in this Century appear to 
establish that the constitutional requirement of ``good behavior'' and 
``high crimes and misdemeanors'' may conjoin to allow the removal of 
judges who have engaged in seriously questionable conduct, although no 
specific criminal statute may have been violated. Thus, both Judge 
Archbald and Judge Ritter were convicted on articles of impeachment that 
charged questionable conduct probably not amounting to indictable 
offenses.\778\ It is possible that Members of Congress may employ 
different standards with regard to judges who have life tenure than they 
do with regard to other officers of the Government who either serve for 
a term of years or who serve at the pleasure of others who serve for a 
term of years, but such a differentiation places a substantial burden 
upon the language of the Constitution.

        \778\ten Broek, Partisan Politics and Federal Judgeship 
Impeachments Since 1903, 23 Minn. L. Rev. 185 (1939).

        With regard to the three most recent judicial impeachments, 
Judges Claiborne and Nixon had previously been convicted of criminal 
offenses, while Judge Hastings had been acquitted of criminal charges 
after trial. The impeachment articles charged both the conduct for which 
he had been indicted and trial conduct. Clearly, he was charged and 
convicted with criminal offenses, it being a separate question what 
effect the court acquittal should have.\779\

        \779\Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as 
the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. Rev. 
1209, 1229-1233 (1991).

        The Nixon Impeachment.--For the first time in over a hundred 
years and for only the second time in the Nation's history, Congress 
moved to impeach the President of the United States, a move forestalled 
only by the resignation of President Nixon on August 9, 1974. In the 
course of the proceedings, there recurred strenuous argument with regard 
to the nature of an impeachable offense, whether only criminally-
indictable actions qualify for that status or whether the definition is 
broader, and, of course, no resolution was reached.\780\

        \780\Analyses of the issue from different points of view are 
contained in Impeachment Inquiry Staff, House Judiciary Committee, 
Constitutional Grounds for Presidential Impeachments, 93d Congress, 2d 
sess. (1974) (Comm. Print); J. St. Clair, et al., Legal Staff of the 
President, Analysis of the Constitutional Standard for Presidential 
Impeachment (Washington: 1974); Office of Legal Counsel, Department of 
Justice, Legal Aspects of Impeachment: An Overview, and Appendix I 
(Washington: 1974). And see R. Berger, Impeachment: The Constitutional 
Problems (Cambridge: 1973), which preceded the instant controversy. The 
House Judiciary Committee recommended three articles of impeachment, for 
conduct at least one of which, refusal to honor the Committee's 
subpoenas, was not an indictable offense, and a second that mixed 
indictable and nonindictable offenses. Impeachment of Richard M. Nixon, 
President of the United States, H. Rept. No. 93-1305, 93d Cong., 2d 
sess. (1974). Mr. Nixon's resignation of course precluded further action 
on the issue, although the articles were submitted to and ``accepted'' 
by the House of Representatives. 120 Cong. Rec. 29219-29362 (1974).


[[Page 590]]

        A second issue arose that apparently had not been considered 
before: whether persons subject to impeachment could be indicted and 
tried prior to impeachment and conviction or whether indictment could 
only follow the removal from office. In fact, the argument was really 
directed only to the status of the President, inasmuch as it was argued 
that he embodied the Executive Branch itself, while lesser executive 
officials and judges were not of that calibre.\781\ That issue similarly 
remained unsettled, the Supreme Court declining to provide some guidance 
in the course of deciding a case on executive privilege.\782\

        \781\The question first arose during the grand jury 
investigation of former Vice President Agnew, during which the United 
States, through the Solicitor General, argued that the Vice President 
and all civil officers were not immune from the judicial process and 
that removal need not precede indictment, but as to the President it was 
argued that for a number of constitutional and practical reasons the 
President was not subject to the ordinary criminal process. Memorandum 
for the United States, Application of Spiro T. Agnew, Civil No. 73-965 
(D.Md., filed October 5, 1973). Courts have specifically held that a 
federal judge is indictable and may be convicted prior to removal from 
office. United States v. Claiborne, 727 F.2d 842, 847-848 (9th Cir.), 
cert. den., 469 U.S. 829 (1984); United States v. Hastings, 681 F.2d 
706, 710-711 (11th Cir.), cert. den., 459 U.S. 1203 (1983); United 
States, v. Isaacs, 493 F.2d 1124, 1142 (7th Cir.), cert. den. sub nom., 
Kerner v. United States, 417 U.S. 976 (1974).
        \782\The grand jury had named the President as an unindicted 
coconspirator in the case of United States v. Mitchell, et al., No. 74-
110 (D.D.C.), apparently in the belief that he was not actually 
indictable while in office. The Supreme Court agreed to hear the 
President's claim that the grand jury acted outside its authority, but 
finding that resolution of the issue was unnecessary to decision of the 
executive privilege claim it dismissed the petition for certiorari of 
the President as improvidently granted. United States v. Nixon, 418 U.S. 
683, 687 n. 2 (1974).

        Judicial Review of Impeachments.--It was long assumed that no 
judicial review of the impeachment process was possible, that 
impeachment presents a true ``political question'' case. That assumption 
was not contested until very recently, when Judges Nixon and Hastings 
challenged their Senate convictions.\783\ But

[[Page 591]]
federal courts, setting the stage for Supreme Court consideration, held 
the challenges to be nonjusticiable, that the Constitution's conferral 
on the Senate of the ``sole'' power to try impeachments demonstrated a 
textually demonstrable constitutional commitment of trial procedures to 
the Senate to decide without court review.\784\

        \783\Both sought to challenge the use under Rule XI of a trial 
committee to hear the evidence and report to the full Senate, which 
would then carry out the trial. The rule was adopted in the aftermath of 
an embarrassingly sparse attendance at the trial of Judge Louderback in 
1935. National Comm. Report, op. cit., n.755, 50-53, 54-57; Grimes, op. 
cit., n.779, 1233-1237.
        \784\Nixon v. United States, 744 F.Supp. 9 (D.D.C. 1990), affd. 
938 F.2d 239 (D.C.Cir. 1991), cert. granted, 112 S.Ct. 1158 (1992). 
However, in Hastings v. United States, 802 F.Supp. 490 (D.D.C. 1992), 
the court did reach the merits and held that at least in the instance of 
Judge Hastings, who had been acquitted in court of the criminal charges 
for the conduct relied on by the Senate, he was entitled to a trial 
before the full Senate without the interposition of the trial committee.