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,[309] October 25, 1926 the Supreme Court had

contrived to side-step every occasion for a decisive pronouncement

regarding the removal power, its extent, and location. The point

immediately at issue in the Myers case was the effectiveness of an order

of the Postmaster General, acting by direction of the President, to

remove from office a first class postmaster, in 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."[310] 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's 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 erect on

this basis a highly selective account of doctrine and practice regarding

the removal power down to the Civil War which was held to yield the

following results: "That article II grants to the President the

executive power of the Government, i.e., the general administrative

control of those executing the laws, including the power of appointment

and removal of executive officers--a conclusion confirmed by his

obligation to take care that the laws be faithfully executed; that

article II excludes the exercise of legislative power by Congress to

provide for appointments and removals, except only as granted therein to

Congress in the matter of inferior offices; that Congress is only given

power to provide for appointments and removals of inferior officers

after it has vested, and on condition that it does vest, their

appointment in other authority than the President with the Senate's

consent; that the provisions of the second section of article II, which

blend action by the legislative branch, or by part of it, in the work of

the executive, are limitations to be strictly construed and not to be

extended by implication; that the President's power of removal is

further established as an incident to his specifically enumerated

function of appointment by and with the advice of the Senate, but that

such incident does not by implication extend to removals the Senate's

power of checking appointments; and finally that to hold otherwise would

make it impossible for the President, in case of political or other

differences with the Senate or Congress, to take care that the laws be

faithfully executed."[311]

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.[312] Rather it was the concern which 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."[313] Thus spoke the former President Taft, and the

result of his prepossession was a rule which, as was immediately pointed

out, exposed the so-called "independent agencies," the Interstate

Commerce Commission, the Federal Trade Commission, and the like, to

Presidential domination.

"The Nature of the Office" Concept

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 not purely of an executive

nature. It seems to me that they partake of a judiciary quality as well

as 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."[314] In Humphrey _v._ United States,[315] decided in 1935,

the Court seized upon "the nature of the office" concept and applied it

as a much needed corrective to the Myers holding.

The Humphrey Case

The material element of this case was that Humphrey, a member of the

Federal Trade Commission, was on October 7, 1933, notified by President

Roosevelt that he was "removed" from office, the reason being their

divergent views of public policy. In due course Humphrey sued for

salary. Distinguishing the Myers case, Justice Sutherland, speaking for

the unanimous Court, said: "A postmaster is an executive officer

restricted to the performance of executive functions. He is charged with

no duty at all related to either the legislative or judicial power. The

actual decision in the _Myers_ Case finds support in the theory that

such an office is merely one of the units in the executive department

and, hence, inherently subject to the exclusive and illimitable power of

removal by the Chief Executive, whose subordinate and aid he is. * * *

It goes no farther;--much less does it include an officer who occupies

no place in the executive department and who exercise no part of the

executive power vested by the Constitution in the President.

"The Federal Trade Commission is an administrative body created by

Congress to carry into effect legislative policies embodied in the

statute * * * Such a body cannot in any proper sense be characterized as

an arm or eye of the executive. Its duties are performed without

executive leave and, in the contemplation of the statute, must be free

from executive control. * * * We think it plain under the Constitution

that illimitable power of removal is not possessed by the President in

respect of officers of the character of those just named, [the

Interstate Commerce Commission, the Federal Trade Commission, the Court

of Claims]. The authority of Congress, in creating quasi-legislative or

quasi-judicial agencies, to require them to act in discharge of their

duties independently of executive control cannot well be doubted; and

that authority includes, as an appropriate incident, power to fix the

period during which they shall continue in office, and to forbid their

removal except for cause in the meantime. For it is quite evident that

one who holds his office only during the pleasure of another, cannot be

depended upon to maintain an attitude of independence against the

latter's will. * * *

"The result of what we now have said is this: Whether the power of the

President to remove an officer shall prevail, over the authority of

Congress to condition the power by fixing a definite term and precluding

a removal except for cause, will depend upon the character of the

office; the _Myers_ decision, affirming the power of the President alone

to make the removal, is confined to purely executive officers; and as to

officers of the kind here under consideration, we hold that no removal

can be made during the prescribed term for which the officer is

appointed, except for one or more of the causes named in the applicable

statute."[316]

Other Phases of Presidential Removal Power

Congress may "limit and restrict the power of removal as it deems best

for the public interests" in the case of inferior officers.[317] But in

the absence of specific legislative provision to the contrary, the

President may remove at his discretion an inferior officer whose term is

limited by statute,[318] or one appointed with the consent of the

Senate.[319] 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.[320] 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.[321] Although no such cause of removal by the

President is 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 set forth in Humphrey _v._ United States.[322]

THE PRESIDENTIAL AEGIS

Presidents have more than once had occasion to stand in a protective

relation to their subordinates, assuming their defense in litigation

brought against them[323] or pressing litigation in their behalf,[324]

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,[325] challenging the constitutional validity of

legislation which he deemed detrimental to their interests.[326] There

is one matter, moreover, as to which he is able to spread his own

official immunity to them. The courts may not require the divulging of

confidential communications from or to the President, that is,

communications which they choose to regard as confidential.[327] Whether

a Congressional Committee of inquiry would be similarly powerless is an

interesting question which has not been adjudicated.[328] Thus far such

issues between the two departments have been adjusted politically.

Section 3. He shall from time to time give to the Congress

Information of 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 * * *

Legislative Role of the President

The above 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.[329] 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;[330] but still

earlier ones, Washington, Jefferson, and Jackson among them, took a very

different line, albeit less boldly and persistently than their later

imitators.[331] 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.[332] The President has

frequently summoned both Houses into "extra" or "special sessions" for

legislative purposes, and the Senate alone for the consideration of

nominations and treaties. His power to adjourn the Houses has never been

exercised.

The 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"[333] 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.[334] The power to "receive" ambassadors, etc., includes,

moreover, the right to refuse to receive them, to request their recall,

to dismiss them, and to determine their eligibility under our laws.[335]

Furthermore, this power makes the President the sole mouthpiece of the

nation in its dealings with other nations.

A 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."[336] 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 therefore returned the consul's commission

and declared that the President would issue no exequatur to a consul

except upon a commission correctly addressed."[337]

"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,"[338] which, "more honored in the breach than the

observance," still survives on the statute books.[339] The year

following John Marshall, then a Member of the House of Representatives,

defended President John Adams for delivering a fugitive from justice to

Great Britain under the 27th article of the Jay Treaty, instead of

leaving the business to the courts. He said: "The President is the sole

organ of the nation in its external relations, and its sole

representative with foreign nations. Of consequence, the demand of a

foreign nation can only be made on him. He possesses the whole Executive

power. He holds and directs the force of the nation. Of consequence, any

act to be performed by the force of the nation is to be performed

through him."[340] Ninety-nine years later a Senate Foreign Relations

Committee took occasion to reiterate Marshall's doctrine with

elaboration.[341]

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."[342]

THE PRESIDENT'S DIPLOMATIC ROLE

Hamilton, although he had expressed substantially the same view in The

Federalist regarding the power of reception,[343] adopted a very

different conception of it in defense of Washington's proclamation.

Writing over 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 an associate

in the war with France, and would have laid the legislature under an

obligation, if required, and there was otherwise no valid excuse, of

exercising its power of declaring war. This serves as an example of the

right of the executive, in certain cases, to determine the condition of

the nation, though it may, in its consequences, affect the exercise of

the power of the legislature to declare war. Nevertheless, the executive

cannot thereby control the exercise of that power. The legislature is

still free to perform its duties, according to its own sense of them;

though the executive, in the exercise of its constitutional powers, may

establish an antecedent state of things, which ought to weigh in the

legislative decision. The division of the executive power in the

Constitution, creates a _concurrent_ authority in the cases to which it

relates."[344]

JEFFERSON'S REAL POSITION

Nor did Jefferson himself officially support Madison's point of view, as

the following extract from his "minutes of a Conversation," which took

place July 10, 1793, between himself and Citizen Genet, show: "He asked

if they [Congress] were not the sovereign. I told him no, they were

sovereign in making laws only, the executive was sovereign in executing

them, and the judiciary in construing them where they related to their

department. 'But,' said he, 'at least, Congress are bound to see that

the treaties are observed.' I told him no; there were very few cases

indeed arising out of treaties, which they could take notice of; that

the President is to see that treaties are observed. 'If he decides

against the treaty, to whom is a nation to appeal?' I told him the

Constitution had made the President the last appeal. He made me a bow,

and said, that indeed he would not make me his compliments on such a

Constitution, expressed the utmost astonishment at it, and seemed never

before to have had such an idea."[345]

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 have 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."[346]

Hamilton, with the case of Genet before him, had taken the contrary

position, which history has ratified. In consequence of his power to

receive and dispatch diplomatic agents, but more especially the former,

the President possesses the power to recognize new States, communities

claiming the status of belligerency, and changes of government in

established states; also, by the same token, the power to decline

recognition, and thereby decline diplomatic relations with such new

States or governments. The affirmative precedents down to 1906 are

succinctly summarized by John Bassett Moore in his famous Digest, as

follows: "In the preceding review of the recognition, respectively, of

the new states, new governments, and belligerency, there has been made

in each case a precise statement of facts, showing how and by whom the

recognition was accorded. In every case, as it appears, of a new

government and of belligerency, the question of recognition was

determined solely by the Executive. In the case of the Spanish-American

republics, of Texas, of Hayti, and of Liberia, the President, before

recognizing the new state, invoked the judgment and cooperation of

Congress; and in each of these cases provision was made for the

appointment of a minister, which, when made in due form, constitutes, as

has been seen, according to the rules of international law, a formal

recognition. In numerous other cases, the recognition was given by the

Executive solely on his own responsibility."[347]

The Case of Cuba

The question of Congress's 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 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."[348] 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.[349] The recognition of the Union of

Soviet Socialist Republics in 1933 was an exclusively Presidential act.

THE POWER OF NONRECOGNITION

The potentialities of nonrecognition were conspicuously illustrated by

President Woodrow Wilson when he refused, early in 1913, to recognize

Provisional President Huerta as the _de facto_ government of Mexico,

thereby contributing materially to Huerta's downfall the year following.

At the same time Wilson announced a general policy of nonrecognition in

the case of any government founded on acts of violence; and while he

observed this rule with considerable discretion, he consistently refused

to recognize the Union of Soviet Socialist Republics, and his successors

prior to President Franklin D. Roosevelt did the same. The refusal of

the Hoover Administration to recognize the independence of the Japanese

puppet state of Manchukuo early in 1932 was based on kindred grounds.

Nonrecognition of the Chinese Communist government by the Truman

administration has proved to be a decisive element of the current (1952)

foreign policy of the United States.

PRESIDENT AND CONGRESS

The relations of President and Congress in the diplomatic field have,

first and, last, presented a varied picture of alternate cooperation and

tension,[350] from which emerge two outstanding facts: first, the

overwhelming importance of Presidential initiative in this area of

power; secondly, the ever increasing dependence of foreign policy on

Congressional cooperation and support. First one and then the other

aspect of the relationship is uppermost. Thus the United Nations

Participation Act of December 20, 1945 appeared to contemplate

cooperation between the President and Congress in the carrying out of

the duties of the United States to back up decisions of the Security

Council involving the use of armed force.[351] When, nevertheless, the

first occasion arose such action, namely, to repel the invasion in June,

1950 of South Korea by North Korean forces, no such agreement had been

negotiated, and the intervention of the United States was authorized by

the President without referring the question to Congress.[352]

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."[353] 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[354] 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.[355]

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,[356] 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, involved with which question was the

further one whether the region between the Perdido and Mississippi

Rivers belonged in 1804 to Spain or the United States. Chief Justice

Marshall held that the Court was bound by the action of the political

departments, the President and Congress, in claiming the land for the

United States. He said: "If those departments which are intrusted with

the foreign intercourse of the nation, which assert and maintain its

interests against foreign powers, have unequivocally asserted its right

of dominion over a country of which it is in possession, and which it

claims under a treaty; 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."[357] The doctrine thus clearly

stated is further exemplified, with particular reference to Presidential

action, by Williams _v._ The Suffolk Insurance Company.[358] In this

case the underwriters of a vessel which had been confiscated by the

Argentine Government for catching seals off the Falkland Islands

contrary to that government's orders sought to escape liability by

showing that the Argentinian government was the sovereign over these

islands and that, accordingly, the vessel had been condemned for wilful

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. It said: "Can there be

any doubt, that when the executive branch of the government, which is

charged with our foreign relations, shall, in its correspondence with a

foreign nation, assume a fact in regard to the sovereignty of any island

or country, it is conclusive on the judicial department? And in this

view, it is not material to inquire, nor is it the province of the court

to determine, whether the executive be right or wrong. It is enough to

know, that in the exercise of his constitutional functions, he had

decided the question. Having done this, under the responsibilities which

belong to him, it is obligatory on the people and government of the

Union. If this were not the rule, cases might often arise, in which, on

most important questions of foreign jurisdiction, there would be an

irreconcilable difference between the executive and judicial

departments. By one of these departments, a foreign island or country

might be considered as at peace with the United States; whilst the

other would consider it in a state of war. No well-regulated government

has ever sanctioned a principle so unwise, and so destructive of

national character."[359] Thus the right to determine the boundaries of

the country is a political function;[360] as is also the right to

determine what country is sovereign of a particular region;[361] to

determine whether a community is entitled under International Law to be

considered a belligerent or an independent state;[362] to determine

whether the other party has duly ratified a treaty;[363] to determine

who is the _de jure_ or _de facto_ ruler of a country;[364] to determine

whether a particular person is a duly accredited diplomatic agent to the

United States;[365] to determine how long a military occupation shall

continue in fulfillment of the terms of a treaty;[366] to determine

whether a treaty is in effect or not, although doubtless an extinguished

treaty could be constitutionally renewed by tacit consent.[367]

Recent Statements of the Doctrine

The assumption underlying the refusal of courts to intervene in such

cases is well stated in the recent case of Chicago & S. Airlines _v._

Waterman Steamship Corp.[368] Here the Court refused to review orders of

the Civil Aeronautics Board granting or denying applications by citizen

carriers to engage in overseas and foreign air transportation which by

the terms of the Civil Aeronautics Act[369] are subject to approval by

the President and therefore impliedly beyond those provisions of the act

authorizing judicial review of board orders.[370] 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 to

be published to the world. It would be intolerable that courts, without

the relevant information, should review and perhaps nullify actions of

the Executive taken on information properly held secret. Nor can courts

sit _in camera_ in order to be taken into executive confidences. But

even if courts could require full disclosure, the very nature of

executive decisions as to foreign policy is political, not judicial.

Such decisions are wholly confided by our Constitution on the political

departments of the government, Executive and Legislative. They are

delicate, complex, and involve large elements of prophecy. They are and

should be undertaken only by those directly responsible to the people

whose welfare they advance or imperil. They are decisions of a kind for

which the Judiciary has neither aptitude, facilities nor responsibility

and which has long been held to belong in the domain of political power

not subject to judicial intrusion or inquiry."[371]

To the same effect are the Court's holding and opinion in Ludecke _v._

Watkins,[372] 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 subjects 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."[373]

The President as Law Enforcer

TYPES OF EXECUTIVE POWER

The Constitution does not say that the President shall execute the laws,

but that "he shall take care that the laws be faithfully executed,"

i.e., by others, who are commonly, but not always with strict accuracy,

termed his subordinates. What powers are implied from this duty? In this

connection five categories of executive power should be distinguished:

first, there is that executive power which the Constitution confers

directly upon the President by the opening clause of article II and, in

more specific terms, by succeeding clauses of the same article;

secondly, there is the sum total of the powers which acts of Congress at

any particular time confer upon the President; thirdly, there is the sum

total of discretionary powers which acts of Congress at any particular

time confer upon heads of departments and other executive

("administrative") agencies of the National Government; fourthly, there

is the power which stems from the duty to enforce the criminal statutes

of the United States; finally, there are so-called "ministerial duties"

which admit of no discretion as to the occasion or the manner of their

discharge. Three principal questions arise: first, how does the

President exercise the powers which the Constitution or the statutes

confer upon him; second, in what relation does he stand by virtue of the

"take care" clause to the powers of other executive, or administrative

agencies; third, in what relation does he stand to the enforcement of

the criminal laws of the United States?

HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED

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 offences 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."[374] 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."[375] Here, says the Attorney

General, "the President's name of office is _designatio personae_." He

is also of opinion that expenditures from the "secret service" fund in

order to be valid, must be vouched for by the President personally.[376]

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.[377] This case has,

however, been virtually overruled, and at any rate such cases are

exceptional.[378]

The general rule, as stated by the Court, is that when any duty is cast

by law upon the President, it may be exercised by him through the head

of the appropriate department, whose acts, if performed within the law,

thus become the President's acts.[379] In Williams _v._ United

States[380] was 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.[381]

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.[382] 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.[383]

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."[384] But this was said with

respect to the office of Secretary of State; and when shortly afterward

the question arose as to the power of Congress to regulate the tenure of

the Comptroller of the Treasury, Madison assumed a very different

attitude, conceding in effect that this officer was to be an arm of

certain of Congress's own powers, and should therefore be protected

against the removal power.[385] (_See_ p. 458). And in Marbury _v._

Madison,[386] 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."[387]

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 prosecution.[388] The opinion entirely overlooked the

important question of the location of the power to interpret the law

which is inevitably involved in any effort to enforce it. The

diametrically opposed theory that Congress is unable to vest any head of

an executive department, even within the field of Congress's

specifically delegated powers, with any legal discretion which the

President is not entitled to control was first asserted in unambiguous

terms in President Jackson's Protest Message of April 15, 1834,[389]

defending his removal of Duane as Secretary of the Treasury, on account

of the latter's refusal to remove the deposits from the Bank of the

United States. Here it is asserted "that the entire executive power is

vested in the President"; that the power to remove those officers who

are to aid him in the execution of the laws is an incident of that

power; that the Secretary of the Treasury was such an officer; that the

custody of the public property and money was an executive function

exercised through the Secretary of the Treasury and his subordinates:

that in the performance of these duties the Secretary was subject to the

supervision and control of the President: and finally that the act

establishing the Bank of the United States "did not, as it could not

change the relation between the President and Secretary--did not release

the former from his obligation to see the law faithfully executed nor

the latter from the President's supervision and control."[390] In short,

the President's removal power, in this case unqualified, was the

sanction provided by the Constitution for his power and duty to control

his "subordinates" in all their official actions of public consequence.

CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW

Five years later the case of Kendall _v._ United States[391] arose. 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 _v._

United States, like Marbury _v._ Madison, involved the question of the

responsibility of a head of department for the performance of a

_ministerial_ duty, the discussion by counsel before the Court and the

Court's own opinion covered the entire subject of the relation of the

President to his subordinates in the performance by them of statutory

duties. The lower court had asserted that the duty of the President

under the faithful execution clause gave him no other control over the

officer than to see that he acts honestly, with proper motives, but no

power to construe the law, and see that the executive action conforms to

it. Counsel for Kendall attacked this position vigorously, relying

largely upon statements by Hamilton, Marshall, James Wilson, and Story

having to do with the President's power in the field of foreign

relations. The Court rejected the implication with emphasis. There are,

it pointed out, "certain political duties imposed upon many officers in

the executive department, the discharge of which is under the direction

of the President. But it would be an alarming doctrine, that Congress

cannot impose upon any executive officer any duty they may think proper,

which is not repugnant to any rights secured and protected by the

Constitution; and in such cases the duty and responsibility grow out of

and are subject to the control of the law, and not to the direction of

the President. And this is emphatically the case, where the duty

enjoined is of a mere ministerial character."[392] In short, the Court

recognized the underlying question of the case to be whether the

President's duty to "take care that the laws be faithfully executed"

made it constitutionally impossible for Congress ever to entrust the

construction of its statutes to anybody but the President; and it

answered this in the negative.

MYERS CASE VERSUS HUMPHREY CASE

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 decisions

in the Myers and Humphrey cases respectively.[393] The former 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; also all

officials--usually heads of departments--through whom he exercises

powers conferred upon him by statute. The Humphrey decision assures to

Congress the right to protect the tenure, and hence the freedom of

decision of all officials upon whom, in the exercise of its delegated

powers, it confers duties of a "quasi-legislative" or a "quasi-judicial"

nature. The former may be described as duties for the satisfactory

discharge of which Congress justifiably feels that a specialized and

informed judgment is requisite. The latter are duties the discharge of

which closely touches private rights and which ought therefore be

accompanied or preceded by a "quasi-judicial" inquiry capable of

affording the claimants of such rights the opportunity to be heard. In

neither case is the President entitled to force his reading of the law

upon the officer, but only to take care that the latter exercise his

powers according to his own best lights.

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 announcement 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 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 continue a prosecution which the

President is satisfied ought not to continue, the removal of the

disobedient officer and the substitution of one more worthy in his place

would enable the President through him faithfully to execute the law.

And it is for this among other reasons that the power of removing the

District Attorney resides in the President."[394]

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 which 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,[395] but he sometimes

makes law in a more special sense. In the famous Neagle case[396] an

order of the Attorney General to a United States marshal to protect a

Justice of the Supreme Court whose life had been threatened by a suitor

was attributed to the President and held to be "a law of the United

States" in the sense of section 753 of the Revised Statutes, and as such

to afford basis for a writ of _habeas corpus_ transferring the said

marshal, who had "got his man," 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?"[397] 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[398] it was ruled that the President had, by dint of

repeated assertion of it from an early date, acquired the right to

withdraw, via the Land Department, public lands, both mineral and

nonmineral, from private acquisition, Congress having never repudiated

the practice.

MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or

assemblages of persons, or rebellion against the authority of the

Government of the United States, it shall become impracticable, in the

judgment of the President, to enforce, by the ordinary course of

judicial proceedings, the laws of the United States within any State or

Territory, it shall be lawful for the President to call forth the

militia of any or all the States, and to employ such parts of the land

and naval forces of the United States as he may deem necessary to

enforce the faithful execution of the laws of the United States, or to

suppress such rebellion, in whatever State or Territory thereof the

laws of the United States may be forcibly opposed, or the execution

thereof forcibly obstructed."[399] This provision of the United States

Code consolidates a course of legislation which began at the time of the

Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose

out of the War of 1812, it was held that the authority to decide whether

the exigency has arisen belongs exclusively to the President.[402] 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 and otherwise" the suppression of such

combination.[403] 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,[404] a

doctrine which 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.[405] The provision above extracted from

the United States Code ratifies this conception as regards the State

militias and the national forces.

SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT

_See_ Article I, Section 9, clause 2, pp. 312-315.

PREVENTIVE MARTIAL LAW

The question of executive power in the presence of civil disorder is

dealt with in modern terms in Moyer _v._ Peabody,[406] decided in 1909,

to which the Debs Case,[407] decided in 1895, may be regarded as an

addendum. Moyer, a labor leader, brought suit against Peabody, for

having ordered his arrest during a labor dispute which occurred while

Peabody was governor of Colorado. Speaking for a unanimous Court, one

Justice being absent, Justice Holmes said: "Of course the plaintiff's

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

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

circumstances. It varies with the subject matter and the necessities of

the situation. * * * The facts that we are to assume are that a state of

insurrection existed and that the Governor, without sufficient reason

but in good faith, in the course of putting the insurrection down held

the plaintiff until he thought that he safely could release him. * * *

In such a situation we must assume that he had a right under the state

constitution and laws to call out troops, as was held by the Supreme

Court of the State. * * * That means that he shall make the ordinary use

of the soldiers to that end; that he may kill persons who resist and, of

course, that he may use the milder measure of seizing the bodies of

those whom he considers to stand in the way of restoring peace. Such

arrests are not necessarily for punishment, but are by way of precaution

to prevent the exercise of hostile power. So long as such arrests are

made in good faith and in the honest belief that they are needed in

order to head the insurrection off, the Governor is the final judge and

cannot be subjected to an action after he is out of office on the ground

that he had not reasonable ground for his belief. * * * When it comes to

a decision by the head of the State upon a matter involving its life,

the ordinary rights of individuals must yield to what he deems the

necessities of the moment. Public danger warrants the substitution of

executive process for judicial process."[408]

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. Coincidently

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 on account 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 has been jailed for contempt of court, had been granted with

jurisdiction. Conceding, in effect, that there was no statutory warrant

for the injunction, the Court nevertheless validated it on the ground

that the Government was entitled thus to protect its property in the

mails, and on a much broader ground which is stated in the following

passage of Justice Brewer's opinion for the Court: "Every government,

entrusted, by the very terms of its being, with powers and duties to be

exercised and discharged for the general welfare, has a right to apply

to its own courts for any proper assistance in the exercise of the one

and the discharge of the other. * * * While it is not the province of

the Government to interfere in any mere matter of private controversy

between individuals, or to use its granted powers to enforce the rights

of one against another, yet, whenever the wrongs complained of are such

as affect the public at large, and are in respect of matters which by

the Constitution are entrusted to the care of the Nation and concerning

which the Nation owes the duty to all the citizens of securing to them

their common rights, then the mere fact that the Government has no

pecuniary interest in the controversy is not sufficient to exclude it

from the courts, or prevent it from taking measures therein to fully

discharge those constitutional duties."[409]

STATUS OF THE DEBS CASE TODAY

The restrictions imposed by the Norris-LaGuardia Act[410] on the

issuance of injunctions by the federal courts in cases "involving or

growing out of any labor dispute" later cast a shadow of doubt over the

Debs case, which was deepened, if anything, by the Court's decision in

1947, in United States _v._ United Mine Workers.[411] But such doubts

have been since dispelled by the Taft-Hartley Act, which provides that

whenever in his opinion a threatened or actual strike or lockout

affecting the whole or a substantial part of an industry engaged in

interstate commerce will, "if permitted to occur or continue, imperil

the national health or safety," the President may appoint a board of

inquiry and, upon its so finding, "may direct the Attorney General to

petition any district court of the United States having jurisdiction of

the parties to enjoin such strike or lockout or the continuing thereof

* * *," and the Court shall have jurisdiction to do so, provided it

shares the President's view of the situation.[412] Administration and

labor critics of the act did not challenge the constitutionality of this

provision. They questioned its necessity in view of the President's

"inherent powers" in the face of emergency.[413]

THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES

_See_ Art. IV, sec. 4, p. 705.

THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS

Illustrative of the President's duty to discharge the responsibilities

of the United States at International Law with a view to avoiding

difficulties with other governments, was the action of President Wilson

in closing the Marconi Wireless Station at Siasconset, Massachusetts on

the outbreak of the European War in 1914, the company having refused

assurance that it would comply with naval censorship regulations.

Justifying this drastic invasion of private rights, Attorney General

Gregory said: "The President of the United States is at the head of one

of the three great coordinate departments of the Government. He is

Commander in Chief of the Army and the Navy. * * * If the President is

of the opinion that the relations of this country with foreign nations

are, or are likely to be, endangered by action deemed by him

inconsistent with a due neutrality, it is his right and duty to protect

such relations; and in doing so, in the absence of any statutory

restrictions, he may act through such executive office or department as

appears best adapted to effectuate the desired end. * * * I do not

hesitate, in view of the extraordinary conditions existing, to advise

that the President, through the Secretary of the Navy or any appropriate

department, close down, or take charge of and operate, the plant * * *,

should he deem it necessary in securing obedience to his proclamation of

neutrality."[414]

PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD

The right of the President to use force in vindication of American

rights of person and property abroad was demonstrated in 1854 by the

bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S.

Cyane, in default of reparation from the local authorities for an attack

by a mob on the United States consul at that place. Upon his return to

the United States Hollins was sued in a federal court by one 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, then on circuit, in the following words: "As the Executive head

of the nation, the President is made the only legitimate organ of the

General Government, to open and carry on correspondence or negotiations

with foreign nations, in matters concerning the interests of the country

or of its citizens. It is to him, also, the citizens abroad must look

for protection of person and of property, and for the faithful execution

of the laws existing and intended for their protection. For this

purpose, the whole Executive power of the country is placed in his

hands, under the Constitution, and the laws passed in pursuance thereof;

and different Departments of government have been organized, through

which this power may be most conveniently executed, whether by

negotiation or by force--a Department of State and a Department of the

Navy.

"Now, as it respects the interposition of the Executive abroad, for the

protection of the lives or property of the citizen, the duty must, of

necessity, rest in the discretion of the President. Acts of lawless

violence, or of threatened violence to the citizen or his property,

cannot be anticipated and provided for; and the protection, to be

effectual or of any avail, may, not unfrequently, require the most

prompt and decided action. Under our system of Government, the citizen

abroad is as much entitled to protection as the citizen at home. The

great object and duty of Government is the protection of the lives,

liberty, and property of the people composing it, whether abroad or at

home; and any Government failing in the accomplishment of the object, or

the performance of the duty, is not worth preserving."[415]

PRESIDENTIAL WORLD POLICING

In his little volume on World Policing and the Constitution[416] Mr.

James Grafton Rogers lists 149 episodes similar to the Greytown affair,

stretching between the undeclared war with France in 1798 and Pearl

Harbor. While inviting some pruning, the list demonstrates beyond

peradventure the existence in the President, as Chief Executive and

Commander in Chief, of power to judge whether a situation requires the

use of available forces to protect American rights of person and

property outside the United States and to take action in harmony with

his decision. Such employment of the forces have, it is true, been

usually justifiable acts of self defense rather than acts of war, but

the countries where they occurred were entitled to treat them as acts of

war nevertheless, although they have generally been too feeble to assert

their prerogative in this respect, and have sometimes actually chosen to

turn the other cheek. Thus when in 1900 President McKinley, without

consulting Congress, contributed a sizable contingent to the joint

forces that went to the relief of the foreign legations in Peking, the

Chinese Imperial Government agreed that this action had not constituted

war.[417]

The Atlantic Pact

Article V of the Atlantic Pact builds on such precedents. The novel

feature is its enlarged conception of defensible American interests

abroad. In the words of the published abstract of the Report of the

Committee on Foreign Relations on the Pact, "Article 5 records what is a

fact, namely, that an armed attack within the meaning of the treaty

would in the present-day world constitute an attack upon the entire

community comprising the parties to the treaty, including the United

States. Accordingly, the President and the Congress, each within their

sphere of assigned constitutional responsibilities, would be expected to

take all action necessary and appropriate to protect the United States

against the consequences and dangers of an armed attack committed

against any party to the treaty."[418] But from the very nature of

things, the discharge of this obligation against overt force will

ordinarily rest with the President in the first instance, just as has

the discharge in the past of the like obligation in the protection of

American rights abroad. Furthermore, in the discharge of this obligation

the President will ordinarily be required to use force and perform acts

of war. Such is the verdict of history, a verdict which was foreseen

more or less definitely by the framers themselves.[419]

PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE

Facts[420]

To avert a nation-wide strike of steel workers which he believed would

jeopardize the national defense, President Truman, on April 8th, 1952,

issued Executive Order 10340[421] directing the Secretary of Commerce to

seize and operate most of the steel mills of the country. 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. Secretary Sawyer forthwith issued an order seizing the

mills and directing their presidents to operate them as operating

managers for the United States in accordance with his regulations and

directions. The President promptly reported these events to Congress,

conceding Congress's power to supersede his Order; but Congress failed

to do anything about the matter either then or a fortnight later, when

the President again brought up the subject in a special message.[422] It

had in fact provided other methods of dealing with such situations, in

the elaboration of which it had declined repeatedly to authorize

governmental seizures of property to settle labor disputes. The steel

companies sued the Secretary in a federal district court, praying for a

declaratory judgment and injunctive relief. The district court issued a

preliminary injunction, which the court of appeals stayed.[423] On

certiorari to the court of appeals, the district court's order was

affirmed by the Supreme Court by a vote of six justices to three.

Justice Black delivered the opinion of the Court in which Justices

Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice

Clark expressly limited his concurrence to the judgment of the Court.

All these Justices presented what are termed "concurring" opinions. The

Chief Justice, speaking for himself and Justices Reed and Minton,

presented a dissenting opinion.

The Doctrine of the Opinion of the Court

The chief points urged in the Black opinion are the following: There was

no statute which 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."[424]

The Factual Record

The pivotal proposition of the opinion is, in brief, that inasmuch as

Congress could have ordered the seizure of the steel mills, the

President had no power to do so without prior congressional

authorization. To support this position no proof is offered in the way

of past opinion, and the following extract from Justice Clark's opinion

presents a formidable challenge to it: "One of this Court's first

pronouncements upon the powers of the President under the Constitution

was made by Mr. Chief Justice John Marshall some one hundred and fifty

years ago. In Little _v._ Barreme,[425] he used this characteristically

clear language in discussing the power of the President to instruct the

seizure of the _Flying Fish_, a vessel bound from a French port: 'It is

by no means clear that the president of the United States whose high

duty it is to "take care that the laws be faithfully executed," and who

is commander in chief of the armies and navies of the United States,

might not, without any special authority for that purpose, in the then

existing state of things, have empowered the officers commanding the

armed vessels of the United States, to seize and send into port for

adjudication, American vessels which were forfeited by being engaged in

this illicit commerce. But when it is observed that [an act of Congress]

gives a special authority to seize on the high seas, and limits that

authority to the seizure of vessels bound or sailing to a French port,

the legislature seems to have prescribed that the manner in which this

law shall be carried into execution, was to exclude a seizure of any

vessel not bound to a French port.' Accordingly, a unanimous Court held

that the President's instructions had been issued without authority and

that they could not 'legalize an act which without those instructions

would have been a plain trespass.' I know of no subsequent holding of

this Court to the contrary."[426]

Another field which the President and Congress have each occupied at

different times is extradition. In 1799 President Adams, in order to

execute the extradition provisions of the Jay Treaty, issued a warrant

for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites

in his opinion: "This action was challenged in Congress on the ground

that no specific statute prescribed the method to be used in executing

the treaty. John Marshall, then a member of the House of

Representatives, in the course of his successful defense of the

President's action, said: 'Congress, unquestionably, may prescribe the

mode, and Congress may devolve on others the whole execution of the

contract; but, till this be done, it seems the duty of the Executive

department to execute the contract by any means it possesses.'"[427] In

1848 Congress enacted a statute governing this subject which confers

upon the courts, both State and Federal, the duty of handling

extradition cases.[428]

The first Neutrality Proclamation was issued by President Washington in

1793 without congressional authorization.[429] The following year

Congress enacted the first neutrality statute,[430] and since then

proclamations of neutrality have been based on an act of Congress

governing the matter. The President may, in the absence of legislation

by Congress, control the landing of foreign cables in the United States

and the passage of foreign troops through American territory, and has

done so repeatedly.[431] Likewise, until Congress acts, he may govern

conquered territory[432] and, "in the absence of attempts by Congress to

limit his power," may set up military commissions in territory occupied

by the armed forces of the United States.[433] He may determine, in a

way to bind the courts, whether a treaty is still in force as law of the

land, although again the final power in the field rests with

Congress.[434] One of the President's most ordinary powers and duties is

that of ordering the prosecution of supposed offenders against the laws

of the United States. Yet Congress may do the same thing.[435] On

September 22, 1862, President Lincoln issued a proclamation suspending

the privilege of the writ of habeas corpus throughout the Union in

certain classes of cases. By an act passed March 3, 1863, Congress

ratified this action of the President and at the same time brought the

whole subject of military arrests in the United States under legal

control.[436] Conversely, when President Wilson failed in March 1917 to

obtain Congress's consent to his arming American merchant vessels with

defensive arms, he went ahead and did it anyway, "fortified not only by

the known sentiments of the majority in Congress but also by the advice

of his Secretary of State and Attorney General."[437]

On the specific matter of property seizures, Justice Frankfurter's

concurring opinion in the Youngstown Case is accompanied by appendices

containing a synoptic analysis of legislation authorizing seizures of

industrial property and also a summary of seizures of industrial plants

and facilities by Presidents without definite statutory warrant.

Eighteen such statutes are listed, all but the first of which were

enacted between 1916 and 1951. Of presidential seizures unsupported by

reference to specific statutory authorization, he lists eight as

occurring during World War I. To justify these it was deemed sufficient

to refer to "the Constitution and laws" generally. For the World War II

period he lists eleven seizures in justification of which no statutory

authority was cited. The first of these was the seizure of the North

American Aviation, Inc., of Englewood, California. In support of this

action Attorney General Jackson, as Chief Justice Vinson points out in

his dissenting opinion, "vigorously proclaimed that the President had

the moral duty to keep this nation's defense effort a 'going

concern.'"[438] Said the then Attorney General, "The Presidential

proclamation rests upon the aggregate of the Presidential powers derived

from the Constitution itself and from statutes enacted by the Congress.

The Constitution lays upon the President the duty 'to take care that the

laws be faithfully executed.' Among the laws which he is required to

find means to execute are those which direct him to equip an enlarged

army, to provide for a strengthened navy, to protect Government

property, to protect those who are engaged in carrying out the business

of the Government, and to carry out the provisions of the Lend-Lease

Act. For the faithful execution of such laws the President has back of

him not only each general law-enforcement power conferred by the various

acts of Congress but the aggregate of all such laws plus that wide

discretion as to method vested in him by the Constitution for the

purpose of executing the laws."[439] In the War Labor Disputes Act of

June 25, 1943,[440] such seizures were put on a statutory basis. As the

Chief Justice points out, the purpose of this measure, as stated by its

sponsor, was not to augment presidential power but to "let the country

know that the Congress is squarely behind the President."[441]

In United States _v._ Pewee Coal Company, Inc.[442] the Court had before

it the claim of a coal mine operator whose property was seized by the

President without statutory authorization, "to avert a nation-wide

strike of miners." The company brought an action in the Court of Claims

to recover under the Fifth Amendment for the total operating losses

sustained during the period in which this property was operated by the

United States. The Court awarded judgment for $2,241.46 and the Supreme

Court sustained this judgment, a result which implied the validity of

the seizure.[443] Said Justice Reed, in his concurring opinion of the

case: "The relatively new technique of temporary taking by eminent

domain is a most useful administrative device: many properties, such as

laundries, or coal mines, or railroads, may be subjected to public

operation only for a short time to meet war or emergency needs, and can

then be returned to their owners." The implications of United States

_v._ Pewee Coal Company, Inc.,[444] clearly sustained the Government in

Youngstown, assuming that Congress had not acted in the latter case. And

one instance of seizure by executive order Justice Frankfurter fails to

mention. This was the seizure by President Wilson in the late summer of

1914, following the outbreak of war in Europe, of the Marconi Wireless

Station at Siasconset when the Company refused assurance that it would

comply with naval censorship regulations. Attorney General Gregory's

justification of this action at the time was quoted on an earlier

page.[445]

The doctrine dictated by the above considerations as regards the

exercise of executive power in the field of legislative power was well

stated by Mr. John W. Davis, principal counsel on the present occasion

for the steel companies, in a brief which he filed nearly forty years

ago as Solicitor General, in defense of the action of the President in

withdrawing certain lands from public entry although his doing so was at

the time contrary to express statute. "Ours," the brief reads, "is a

self-sufficient Government within its sphere. (Ex parte Siebold, 100

U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate

to its ends' (McCulloch _v._ Maryland, 4 Wheat. 316, 424), and it is

rational to assume that its active forces will be found equal in most

things to the emergencies that confront it. While perfect flexibility is

not to be expected in a Government of divided powers, and while division

of power is one of the principal features of the Constitution, it is the

plain duty of those who are called upon to draw the dividing lines to

ascertain the essential, recognize the practical, and avoid a slavish

formalism which can only serve to ossify the Government and reduce its

efficiency without any compensating good. The function of making laws is

peculiar to Congress, and the Executive can not exercise that function

to any degree. But this is not to say that all of the _subjects_

concerning which laws might be made are perforce removed from the

possibility of Executive influence. The Executive may act upon things

and upon men in many relations which have not, though they might have,

been actually regulated by Congress. In other words, just as there are

fields which are peculiar to Congress and fields which are peculiar to

the Executive, so there are fields which are common to both, in the

sense that the Executive may move within them until they shall have

been occupied by legislative action. These are not the fields of

legislative prerogative, but fields within which the lawmaking power may

enter and dominate whenever it chooses. This situation results from the

fact that the President is the active agent, not of Congress, but of the

Nation. As such he performs the duties which the Constitution lays upon

him immediately, and as such, also, he executes the laws and regulations

adopted by Congress. He is the agent of the people of the United States,

deriving all his powers from them and responsible directly to them. In

no sense is he the agent of Congress. He obeys and executes the laws of

Congress, not because Congress is enthroned in authority over him, but

because the Constitution directs him to do so. Therefore it follows that

in ways short of making laws or disobeying them, the Executive may be

under a grave constitutional duty to act for the national protection in

situations not covered by the acts of Congress, and in which, even, it

may not be said that 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."[446]

Concurring Opinions

Justice Frankfurter begins the material part of his opinion with the

statement: "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."[447] He then

enters upon a review of the proceedings of Congress which attended the

enactment of the Taft-Hartley Act, and concludes 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."[448]

Justice Douglas's contribution consists in the argument that: "The

branch of government that has the power to pay compensation for a

seizure is the only one able to authorize a seizure or make lawful one

that the President has effected. That seems to me to be the necessary

result of the condemnation provision in the Fifth Amendment."[449] This

contention overlooks such cases as Mitchell _v._ Harmony;[450] United

States _v._ Russell;[451] Portsmouth Harbor Land and Hotel Co. _v._

United States;[452] and United States _v._ Pewee Coal Co.;[453] in all

of which a right of compensation was recognized to exist in consequence

of damage to property which resulted from acts stemming ultimately from

constitutional powers of the President. In United States _v._ Pink,[454]

Justice Douglas quotes with approval the following words from the

Federalist,[455] "all constitutional acts of power, whether in the

executive or in the judicial branch, have as much validity and

obligation as if they proceeded from the legislature." If this is so as

to treaty obligations, then all the more must it be true of obligations

which are based directly on the Constitution.[456]

Justice Jackson's opinion contains little that is of direct pertinence

to the constitutional issue. Important, however, is his contention,

which, seems to align him with Justice Frankfurter, that Congress had

"not left seizure of private property an open field but has covered it

by three statutory policies inconsistent with this seizure"; from which

he concludes that "* * * we can sustain the President only by holding

that seizure of such strike-bound industries is within his domain and

beyond control by Congress."[457] The opinion concludes: "In view of the

ease, expedition and safety with which Congress can grant and has

granted large emergency powers, certainly ample to embrace this crisis,

I am quite unimpressed with the argument that we should affirm

possession of them without statute. Such power either has no beginning

or it has no end. If it exists, it need submit to no legal restraint. I

am not alarmed that it would plunge us straightway into dictatorship,

but it is at least a step in that wrong direction. * * * But I have no

illusion that any decision by this Court can keep power in the hands of

Congress if it is not wise and timely in meeting its problems. A crisis

that challenges the President equally, or perhaps primarily, challenges

Congress. If not good law, there was worldly wisdom in the maxim

attributed to Napoleon that 'The tools belong to the man who can use

them.' 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."[458]

Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most

significant feature of that Act is its omission of authority to seize,"

citing debate on the measure.[459] "In the case before us, Congress

authorized a procedure which the President declined to follow."[460]

Justice Clark bases his position directly upon Chief Justice Marshall's

opinion in Little _v._ Barreme.[461] He says: "I conclude that where

Congress has laid down specific procedures to deal with the type of

crisis confronting the President, he must follow these procedures in

meeting the crisis; * * * I cannot sustain the seizure in question

because here, as in Little _v._ Barreme, Congress had prescribed methods

to be followed by the President in meeting the emergency at hand."[462]

His reference is to the Taft-Hartley Act. At the same time he endorses

the view, "taught me not only by the decision of Chief Justice Marshall

in Little _v._ Barreme, but also by a score of other pronouncements of

distinguished members of this bench," that "the Constitution does grant

to the President extensive authority in times of grave and imperative

national emergency."[463]

Dissenting Opinion

Chief Justice Vinson launched his opinion of dissent, for himself and

Justices Reed and Minton, with a survey of the elements of the emergency

which confronted the President: the Korean war; the obligations of the

United States under the United Nations Charter and the Atlantic Pact;

the appropriations acts by which Congress has voted vast sums to be

expended in our defense and that of our Allies in Europe; the fact that

steel is a basic constituent of war materiel. He reproaches the Court

for giving no consideration to these things, although no one had

ventured to challenge the President's finding of an emergency on the

basis of them.[464] He asks whether the steel seizure, considering the

emergency involved, fits into the picture of presidential emergency

action in the past and musters impressive evidence to show that it does.

And "plaintiffs admit," he asserts, more questionably, "that the

emergency procedures of Taft-Hartley are not mandatory."[465] He

concludes as follows: "The diversity of views expressed in the six

opinions of the majority, the lack of reference to authoritative

precedent, the repeated reliance upon prior dissenting opinions, the

complete disregard of the uncontroverted facts showing the gravity of

the emergency and the temporary nature of the taking all serve to

demonstrate how far afield one must go to affirm the order of the

District Court. The broad executive power granted by Article II to an

officer on duty 365 days a year cannot, it is said, be invoked to avert

disaster. Instead, the President, must confine himself to sending a

message to Congress recommending action. Under this messenger-boy

concept of the Office, the President cannot even act to preserve

legislative programs from destruction so that Congress will have

something left to act upon. There is no judicial finding that the

executive action was unwarranted because there was in fact no basis for

the President's finding of the existence of an emergency for, under this

view, the gravity of the emergency and the immediacy of the threatened

disaster are considered irrelevant as a matter of law."[466]

Evaluation; Presidential Emergency Power

The doctrine of "the opinion of the Court" is that, if Congress can do

it under, say, the necessary and proper clause, then the President,

lacking authority from Congress, cannot do it on the justification that

an emergency requires it. Although four Justices are recorded as

concurring in the opinion, their accompanying opinions whittle their

concurrence in some instances to the vanishing point. Justice Douglas's

supplementary argument on the basis of Amendment V logically confines

the doctrine of the opinion to executive seizures of property. Justices

Frankfurter and Burton and, less clearly, Justice Jackson insist in

effect that Congress had exercised its power in the premises of the case

in opposition to seizure. Justice Clark, on the basis of Chief Justice

Marshall's opinion in Little _v._ Barreme, holds unambiguously that,

Congress having entered the field, its evident intention to rule out

seizures supplied the law of the case. That the President does possess a

residual of resultant power above, or in consequence of, his granted

powers to deal with emergencies in the absence of restrictive

legislation is explicitly asserted by Justice Clark, and impliedly held,

with certain qualifications, by Justice Frankfurter and, again less

clearly, by Justice Jackson; and is the essence of the position of the

three dissenting Justices. Finally, the entire Court would in all

probability agree to the proposition that any action of the President

touching the internal economy of the country for which the justification

of emergency is pleaded is always subject to revision and disallowance

by the legislative power. It would seem to follow that whenever the

President so acts on his own initiative he should at once report his

action to Congress, and thenceforth bring the full powers of his office

to the support of the desires of the Houses once these are clearly

indicated.

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in State of Mississippi _v._ Johnson,[467]

in 1867, the President was put beyond the reach of judicial direction in

the exercise of any of his powers, whether constitutional or statutory,

political or otherwise. 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 Stanbery as

follows: "It is not upon any peculiar immunity that the individual has

who happens to be President; upon any idea that he cannot do wrong; upon

any idea that there is any particular sanctity belonging to him as an

individual, as is the case with one who has royal blood in his veins;

but it is on account of the office that he holds that I say the

President of the United States is above the process of any court or the

jurisdiction of any court to bring him to account as President. There is

only one court or _quasi_ court that he can be called upon to answer to

for any dereliction of duty, for doing anything that is contrary to law

or failing to do anything which is according to law, and that is not

this tribunal but one that sits in another chamber of this

Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "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 [not?] the strange spectacle be offered to the public

world of an attempt by this court to arrest proceedings in that

court?"[469] The Court further indicated that the same principle would

apply to an application for a mandamus ordering the President to

exercise any of his powers.

THE PRESIDENT'S SUBORDINATES AND THE COURTS

But while the courts are unable to compel the President to act or to

keep him from acting, yet his acts, when performed are in proper cases

subject to judicial review and disallowance.[470] Moreover, the

subordinates through whom he acts may always be prohibited by writ of

injunction from doing a threatened illegal act which might lead to

irreparable damage,[471] or be compelled by writ of mandamus to perform

a duty definitely required by law,[472] such suits being usually brought

in the United States District Court for the District of Columbia.[473]

Also, by common law principles, a subordinate executive officer is

personally liable under the ordinary law for any act done in excess of

authority.[474] Indeed, by a recent holding, district courts of the

United States are bound to entertain suits for damages arising out of

alleged violation of plaintiff's constitutional rights, even though as

the law now stands the Court is powerless to award damages.[475] But

Congress may, in certain cases, exonerate the officer by a so-called act

of indemnity,[476] while as the law stands at present, any officer of

the United States who is charged with a crime under the laws of a State

for an act done under the authority of the United States is entitled to

have his case transferred to the national courts.[477]

Section 4. The President, Vice President and all civil Officers

of the United States, shall be removed from Office on Impeachment for,

and Conviction of, Treason, Bribery, or other high Crimes and

Misdemeanors.

Impeachment

"CIVIL OFFICER"

A Member of Congress is not a civil officer within the meaning of this

section; nor is a private citizen subject to impeachment;[478] but

resignation of an officer does not give immunity from impeachment for

acts committed while in office.[479]

"HIGH CRIMES AND MISDEMEANORS"

Most of the States have drafted their constitutional provisions on this

subject in similar language. As there is no enumeration of offenses

comprised under the last two categories, no little difficulty has been

experienced in defining offenses in such a way that they fall within the

meaning of the constitutional provisions. But impeachable offenses were

not defined in England, and it was not the intention that the

Constitution should attempt an enumeration of crimes or offenses for

which an impeachment would lie. Treason and bribery have always been

offenses whose nature was clearly understood. Other high crimes and

misdemeanors which might be made causes for the impeachment of civil

officers were those which embraced any misbehavior while in office.

Madison, whose objection led to the insertion of the more definite

phrase high crimes and misdemeanors, was the strongest advocate of a

broad construction of the impeachment power. He argued that incapacity,

negligence, or perfidy of the Chief Magistrate should be ground for

impeachment.[480] Again, in discussing the President's power of removal,

he maintained that the wanton removal from office of meritorious

officers would be an act of maladministration, and would render the

President liable to impeachment.[481] Hamilton thought the proceeding

could "never be tied down by such strict rules, either in the

delineation of the offense by the prosecutors, or in the construction of

it by the judges, as in common cases serve to limit the discretion of

the courts in favor of personal security."[482]

THE CHASE IMPEACHMENT

The above relatively flexible conception of "high crimes and

misdemeanors" was, however, early replaced by a much more rigid one in

consequence of Jefferson's efforts to diminish the importance of the

Supreme Court, the first step in which enterprise was the impeachment in

1805 of Justice Samuel Chase. The theory of Chase's enemies was given

its extremest expression by Jefferson's henchman, Senator Giles of

Virginia, as follows: "Impeachment is nothing more than an enquiry, by

the two Houses of Congress, whether the office of any public man might

not be better filled by another. * * * 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] was 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."[483] To this

theory Chase's counsel opposed the proposition that "high crimes and

misdemeanors" meant offenses indictable at common law; and Chase's

acquittal went far to affix this reading to the phrase till after the

War between the States.

THE JOHNSON IMPEACHMENT

But with the impeachment of President Johnson in 1867 for "high crimes

and misdemeanors," the controversy was revived. Representative Bingham,

leader of the House Managers of the impeachment, defined an impeachable

offense as follows: "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."[484] Former Justice

Benjamin R. Curtis stated the position of the defense in these words:

"My first position is, that when the Constitution speaks of 'treason,

bribery, and other high crimes and misdemeanors,' it refers to, and

includes only, high criminal offences against the United States, made so

by some law of the United States existing when the acts complained of

were done, and I say that this is plainly to be inferred from each and

every provision of the Constitution on the subject of impeachment."[485]

LATER IMPEACHMENTS

With Johnson's acquittal, the narrow view of "high crimes and

misdemeanors" appeared again to win out. Two successful impeachments of

lower federal judges in recent years have, however, restored something

like the broader conception of the term which Madison and Hamilton had

endorsed. In 1913 Judge Archbald of the Commerce Court was removed from

office by the impeachment process, and disqualified to hold and enjoy

any office of honor, profit or trust under the Constitution, for

soliciting for himself and friends valuable favors from railroad

companies some of which were at the time litigants in his court,

although it was conceded that in so doing he had not committed an

indictable offense;[486] and in 1936 Judge Ritter of the Florida

district court was similarly removed for conduct in relation to a

receivership case which evoked serious doubts as to his integrity,

although on the specific charges against him he was acquitted.[487] It

is probable that in both these instances the final result was influenced

by the consideration that judges of the United States hold office during

"good behavior" and that the impeachment process is the only method

indicated by the Constitution for determining whether a judge's behavior

has been "good." In other words, as to judges of the United States at

least lack of "good behavior" and "high crimes and misdemeanors" are

overlapping if not precisely coincidental concepts.[488]

Notes

[1] As is pointed out by Hamilton in The Federalist No. 69.

[2] Charles C. Thach, The Creation of the Presidency, 1775-1789

(Baltimore, 1922), 36-37.

[3] Ibid. 109.

[4] Max Farrand, Records, II, 185.

[5] Ibid. II, 572 (September 10), 597.

[6] Annals of Congress 383 ff.

[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation

of this debate, _see_ James Hart, The American Presidency in Action,

152-214 (New York, 1948).

[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New

York, 1851). Hamilton was here simply interpreting the executive power

clause in light of the views of Blackstone, Locke, and Montesquieu as to

the location of power in the conduct of foreign relations. _See_ Edward

S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a

parallel argument to Hamilton's respecting "the judicial power of the

United States," article 1, section 1, clause 1, _see_ Justice Brewer's

opinion in Kansas _v._ Colorado, 206 U.S. 46, 82 (1907).

[9] Myers _v._ United States, 272 U.S. 52 (1926).

[10] Ibid. 118.

[11] 299 U.S. 304 (1936).

[12] Ibid. 315-316, 318. _See also_ Ibid. 319 citing U.S. Senate

Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15,

1816).

[13] Ibid. 327, citing Panama Refining Co. _v._ Ryan, 293 U.S. 388,

421-422 (1935).

[14] In Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952) the doctrine is

advanced that the President has no power in the field of Congress'

legislative powers except such as are delegated him by Congress. This

doctrine is considered below in the light of previous practice and

adjudication. _See_ pp. 489-499.

[15] _See_ e.g., Abel Upshur, A Brief Inquiry Into the True Nature and

Character of Our Federal Government (1840), 116-117.

[16] The Federalist No. 67, 503.

[17] James Hart, The American Presidency in Action (New York, 1918),

28-43.

[18] 2 Dall. 400 (1790).

[19] Messages and Papers of the Presidents, I, 56.

[20] Corwin, The President, Office and Powers (3d ed.), 377-378,

434-435, 446, 465, 484. "The executive [branch of the government],

possessing the rights of self-government from nature, cannot be

controlled in the exercise of them but by a law, passed in the forms of

the Constitution." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed.

209 (New York, 1892-1899). "In times of peace the people look most to

their representatives; but in war, to the Executive solely." Letter to

Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272.

[21] Corwin 20-21, and citations.

[22] Ibid. 21-22, and citations.

[23] Ibid. 22-24.

[24] Ibid. 386. _See also_ ibid. 281.

[25] Ford, The Rise and Growth of American Politics (New York, 1914),

293.

[26] As to the meaning of "the fourth day of March", _see_ Charles

Warren, Political Practice and the Constitution, 89 Univ. of Pa. L. Rev.

(June, 1941) 1003-1025.

[27] On the anti-third term tradition, _see_ Corwin, The President,

Office and Powers (3d ed.), 43-49, 388-392.

[28] McPherson _v._ Blacker, 146 U.S. 1, 27 (1892).

[29] Ibid. 28-29.

[30] Max Farrand, II, 97.

[31] In re Green, 134 U.S. 377, 379-380 (1890).

[32] United States _v._ Hartwell, 6 Wall. 385, 393 (1868).

[33] Hawke _v._ Smith, 253 U.S. 221 (1920).

[34] Burroughs _v._ United States, 290 U.S. 534, 545 (1934).

[35] Ex parte Yarbrough, 110 U.S. 651 (1884).

[36] Burroughs _v._ United States, 290 U.S. 534 (1934).

[37] Ibid. 546. During the recent war, Congress laid claim in the act of

September 16, 1942, to the power "in time of war" to secure to every

member of the armed forces the right to vote for Members of Congress and

Presidential Electors notwithstanding any provisions of State law

relating to the registration of qualified voters or any poll tax

requirement under State law. The constitutional validity of this act was

open to serious question and by the act of April 1, 1944 was abandoned.

The latter act established a War Ballot Commission which was directed to

prepare an adequate number of official war ballots, whereby the service

men would be enabled in certain contingencies to vote for Members of

Congress and Presidential Electors; but the validity of such ballots was

left to be determined by State election officials under State laws. 50

(App.) U.S.C.A. Sec. 301-302, 331, 341.

[38] 343 U.S. 214 (1952).

[39] _See_ pp. 942-944.

[40] 1 Stat. 239.

[41] 3 U.S.C. Sec. 23.

[42] 3 U.S.C. Sec. 21.

[43] Public Law 199, 80th Cong., 1st sess. By section 202 (a) of Public

Law 253 of the 80th Cong., 1st sess., approved July 26, 1947, that is,

eight days after Public Law 199, the "Secretary of War" and the

"Secretary of the Navy" were stricken from the line of succession and

the "Secretary of Defense" whose office Public Law 253 created, was

inserted instead.

[44] _Cf._ 13 Op. 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 of the United States, would be unconstitutional if the act

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

[45] The Federalist No. 69, 513, 515.

[46] Story's Commentaries, II, Sec. 1492.

[47] Fleming _v._ Page, 9 How. 603, 615, 618 (1850).

[48] Ex parte Milligan, 4 Wall. 2, 139 (1866).

[49] 1 Stat. 424 (1795); 2 Stat. 443 (1807). _See also_ Martin _v._

Mott, 12 Wheat. 19, 32-33 (1827), asserting the finality of the

President's judgment of the existence of a state of facts requiring his

exercise of the powers conferred by the act of 1795.

[50] Messages and Papers of the Presidents, VII, 3221.

[51] 2 Bl. 635 (1863).

[52] Messages and Papers of the Presidents, VII, 3215, 3216, 3481.

[53] 2 Bl. at 668-670.

[54] 12 Stat. 326 (1861).

[55] James G. Randall, Constitutional Problems under Lincoln, 118-139

(New York, 1926).

[56] _See_ the Government's brief in United States _v._ Montgomery Ward

and Co., 150 F. 2d 369 (1945).

[57] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 327

(1936).

[58] _See_ White House Digest of Provisions of Law Which Would Become

Operative upon Proclamation of a National Emergency by the President.

The Digest is dated December 11, 1950. It was released to the press on

December 16th.

[59] 56 Stat. 23.

[60] Cong. Rec. 77th Cong., 2d sess., vol. 88, pt. 5, p. 7044 (September

7, 1942).

[61] 50 U.S.C.A. War, App. 1651. For Emergency War Agencies that were

functioning at any particular time, consult the _United States

Government Manual_ of the approximate date. The executive order creating

an agency is cited by number. For a Chronological List of Wartime

Agencies (including government corporations) and some account of their

creation down to the close of 1942, _see_ chapter on War Powers and

Their Administration by Dean Arthur T. Vanderbilt in 1942 Annual Survey

of American Law (New York University School of Law, 1945), pp. 106-231.

At the close of the war there were 29 agencies grouped under OEM, of

which OCD, WMC, and OC were the first to fold up. At the same date there

were 101 separate government corporations, engaged variously in

production, transportation, power-generation, banking and lending,

housing, insurance, merchandising, and other lines of business and

enjoying the independence of autonomous republics, being subject to

neither Congressional nor presidential scrutiny, nor to audit by the

General Accounting Office.

[62] 143 F. 2d. 145 (1944).

[63] _See_ Corwin, The President, Office and Powers (3d ed.) 296, 492.

[64] Exec. Order 9066, 7 Fed. Reg. 1407.

[65] 56 Stat. 173.

[66] Hirabayashi _v._ United States, 320 U.S. 81, 91-92 (1943).

[67] Korematsu _v._ United States, 323 U.S. 214 (1944).

[68] New York Times, June 10, 1941.

[69] 7 Fed. Reg. 237.

[70] 57 Stat. 163.

[71] "During the course of the year [1945] the President directed the

seizure of many of the nation's industries in the course of labor

disputes. The total number of facilities taken over is significant: two

railroad systems, one public utility, nine industrial companies, the

transportation systems of two cities, the motor carriers in one city, a

towing company and a butadiene plant. In addition thereto the President

on April 10 seized 218 bituminous coal mines belonging to 162 companies

and on May 7, 33 more bituminous mines of 24 additional companies. The

anthracite coal industry fared no better; on May 3 and May 7 all the

mines of 365 companies and operators were taken away from the owners,

and on October 6 the President ordered the seizure of 54 plants and pipe

lines of 29 petroleum producing companies in addition to four taken over

prior thereto.

"During the year disputes between railroad companies and the

Brotherhoods resulted in the establishment of twelve Railroad Emergency

Boards to investigate disputes and to report to the President. The

President also established on October 9 a Railway Express Emergency

Board to investigate the dispute between the Railway Express and a

union.

"To implement the directives of the National War Labor Board, the Office

of Economic Stabilization directed the cancellation of all priority

applications, allocation applications and outstanding priorities and

allocations in the cases of three clothing companies and one

transportation system which refused to comply with orders of the

National War Labor Board." Arthur T. Vanderbilt, War Powers and their

Administration, 1945, Annual Survey of American Law (New York University

School of Law), pp. 271-273.

[72] 8 Fed. Reg. 11463.

[73] 56 Stat. 23.

[74] 322 U.S. 398 (1944).

[75] Ibid. 405-406.

[76] _See_ Corwin, The President, Office and Powers (3d ed.) 302-303.

[77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22.

Albert Venn Dicey, Introduction to the Study of the Law of the

Constitution (7th ed.), 283-287.

[78] Dicey, Introduction to the Study of the Law of the Constitution,

Chap. VIII, 262-271.

[79] 7 How. 1 (1849). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33

(1827).

[80] 2 Bl. 635 (1863).

[81] 4 Wall. 2 (1866).

[82] Ibid. 127.

[83] Ibid. 139-140. In Ex parte Vallandigham 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. 1 Wall. 243 (1864).

[84] 31 Stat. 141, 153.

[85] Duncan _v._ Kahanamoku, 327 U.S. 304 (1946).

[86] Ibid. 324.

[87] Ibid. 336.

[88] Ibid. 343.

[89] Ex parte Quirin, 317 U.S. 1 (1942).

[90] 317 U.S. 1, 29-30, 35 (1942).

[91] Ibid. 1, 41-42.

[92] Ibid. 28-29.

[93] 1 Stat. 577 (1798).

[94] 327 U.S. 1 (1946).

[95] Ibid. 81.

[96] _See_ Leo Gross, The Criminality of Aggressive War, 41 American

Political Science Review (April, 1947), 205-235.

[97] Fleming _v._ Page, 9 How. 603, 615 (1850).

[98] Madsen _v._ Kinsella, 343 U.S. 341, 348 (1952). _See also_ Johnson

_v._ Eisentrager, 339 U.S. 703, 789 (1950).

[99] Totten _v._ United States, 92 U.S. 105 (1876).

[100] Hamilton _v._ Dillin, 21 Wall. 73 (1875); Haver _v._ Yaker, 9

Wall. 32 (1869).

[101] Mitchell _v._ Harmony, 13 How. 115 (1852); United States _v._

Russell, 13 Wall. 623 (1871); Totten _v._ United States, note 3 above;

[Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty.

Gen. 251-253 (1942).

[102] _Cf._ the Protocol of August 12, 1898, which largely foreshadowed

the Peace of Paris; and President Wilson's Fourteen Points, which were

incorporated in the Armistice of November 11, 1918.

[103] Fleming _v._ Page, 9 How. 603, 615 (1850).

[104] 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).

[105] Swaim _v._ United States, 165 U.S. 553 (1897); and cases there

reviewed. _See also_ Givens _v._ Zerbst, 255 U.S. 11 (1921).

[106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; _cf._ 1 ibid. 233,

234, where the contrary view is stated by Attorney General Wirt.

[107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

[108] General Orders, No. 100, Official Records, War of Rebellion, ser.

III, vol. III; April 24, 1863.

[109] _See_ e.g., Mimmack _v._ United States, 97 U.S. 426, 437 (1878);

United States _v._ Corson, 114 U.S. 619 (1885).

[110] 10 U.S.C. Sec. 1590.

[111] Mullan _v._ United States, 140 U.S. 240 (1891); Wallace _v._

United States, 257 U.S. 541 (1922).

[112] Surrogate's Court, Dutchess 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 service of

the United States. New York Times, July 26, 1950, p. 27, col. 1.

[113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542

(_passim_).

[114] Heads of Executive Departments except the Postmaster General have

no fixed legal terms. For the history of legislation on the subject.

_See_ 36 Op. Atty. Gen. 12-16 (April 18, 1929); _also_ Everett S. Brown,

The Tenure of Cabinet Officers, 42 American Political Science Review

529-532 (June, 1948).

[115] _See_ Corwin, The President, Office and Powers (3d ed.), New York

University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373,

378-381, 516-519. The only question of a constitutional nature that has

arisen concerning the Cabinet meeting is as to its right to meet, on the

call of the Secretary of State, in the President's absence. Ibid. 402.

[116] United States _v._ Wilson, 7 Pet. 150, 160-161 (1833).

[117] 236 U.S. 79, 86 (1915).

[118] Ibid. 90-91.

[119] Armstrong _v._ United States, 13 Wall. 154, 156 (1872). In Brown

_v._ Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a

necessary corollary of the above propositions that, if the witness has

already received a pardon, he cannot longer set up his privilege, since

he stands with respect to such offence as if it had never been

committed." Ibid. 599, citing British cases.

[120] Biddle _v._ Perovich, 274 U.S. 480, 486 (1927).

[121] _Cf._ W.H. Humbert, The Pardoning Power of the President, American

Council on Public Affairs (Washington, 1941) 73.

[122] 274 U.S. at 486.

[123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. _v._

Bosworth, 133 U.S. 92 (1890).

[124] Ex parte Wells, 18 How. 307 (1856). For the contrary view _see_

some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820);

2 ibid. 275 (1829); 5 ibid. 687 (1795); _cf._ 4 ibid. 453; United States

_v._ Wilson, 7 Pet. 150, 161 (1833).

[125] 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).

[126] _See_ Messages and Papers of the Presidents, I, 181, 303; II, 543;

VII, 3414, 3508; VIII, 3853; XIV, 6690.

[127] United States _v._ Klein, 13 Wall. 128, 147 (1872). _See also_

United States _v._ Padelford, 9 Wall. 531 (1870).

[128] Ex parte Garland, 4 Wall. 333, 380 (1867).

[129] F.W. Maitland, Constitutional History of England (Cambridge,

1903), 302-306; 1 Op. Atty. Gen. 342 (1820).

[130] 267 U.S. 87 (1925).

[131] Ibid. 110-111.

[132] Ibid. 121, 122.

[133] 4 Wall. 333, 381 (1867).

[134] Ibid. 380.

[135] Ibid. 396-397.

[136] 233 U.S. 51 (1914).

[137] Ibid. 59.

[138] 142 U.S. 450 (1892).

[139] Knote _v._ United States, 95 U.S. 149, 153-154 (1877).

[140] United States _v._ Klein, 13 Wall. 128, 143, 148 (1872).

[141] The Laura, 114 U.S. 411 (1885).

[142] Brown _v._ Walker, 161 U.S. 591 (1896).

[143] Farrand, II, 183.

[144] Ibid. 538-539.

[145] The Federalist No. 64.

[146] Farrand, III, 424.

[147] Washington sought to use the Senate as a council, but the effort

proved futile, principally because the Senate balked. For the details

_see_ Corwin, The President, Office and Powers (3d ed.), 253-257.

[148] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 319

(1936).

[149] Corwin, The President, Office and Powers (3d ed.), 467-468.

[150] "Obviously the treaty must contain the whole contract between the

parties, and the power of the Senate is limited to a ratification of

such terms as have already been agreed upon between the President,

acting for the United States, and the commissioners of the other

contracting power. The Senate has no right to ratify the treaty and

introduce new terms into it, which shall be obligatory upon the other

power, although it may refuse its ratification, or make such

ratifications conditional upon the adoption of amendments to the

treaty." Fourteen Diamond Rings _v._ United States, 183 U.S. 176, 183

(1901).

[151] _Cf._ Article I, section 5, clause 1; _also_ Missouri Pacific R.

Co. _v._ Kansas, 248 U.S. 276, 283-284 (1919).

[152] _See_ Samuel Crandall, Treaties, Their Making and Enforcement (2d

ed., Washington, 1916), Sec. 53, for instances.

[153] Foster _v._ Neilson, 2 Pet. 253, 314 (1829). "Though several

writers on the subject of government place that [the treaty-making]

power in the class of executive authorities, yet this is evidently an

arbitrary disposition; for if we attend carefully to its operation, it

will be found to partake more of the legislative than of the executive

character, though it does not seem strictly to fall within the

definition of either. The essence of the legislative authority is to

enact laws, or, in other words, to prescribe rules for the regulation of

the society; while the execution of the laws, and the employment of the

common strength, either for this purpose, or for the common defence,

seem to comprise all the functions of the executive magistrate. The

power of making treaties is, plainly, neither the one nor the other. It

relates neither to the execution of the subsisting laws, nor to the

enaction of new ones; and still less to an exertion of the common

strength. Its objects are _contracts_ with foreign nations, which have

the force of law, but derive it from the obligations of good faith. They

are not rules prescribed by the sovereign to the subject, but agreements

between sovereign and sovereign. The power in question seems therefore

to form a distinct department, and to belong, properly, neither to the

legislative nor to the executive." Hamilton in The Federalist No. 75.

[154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions

operative as "law of the land" ("self-executing"), _see_ Crandall,

Treaties (2d ed.), 36-42, 49-62 (_passim_), 151, 153-163, 179, 238-239,

286, 321, 338, 345-346. For treaty provisions of an "executory"

character, _see_ ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589.

[155] _See_ Crandall, Chap. III, 24-42.

[156] 3 Dall. 199 (1796).

[157] 3 Cr. 454 (1806).

[158] "In Chirac _v._ Chirac (2 Wheat. 259), it was held by this court

that a treaty with France gave to her citizens the right to purchase and

hold land in the United States, removed the incapacity of alienage and

placed them in precisely the same situation as if they had been citizens

of this country. The State law was hardly adverted to, and seems not to

have been considered a factor of any importance in this view of the

case. The same doctrine was reaffirmed touching this treaty in Carneal

_v._ Banks (10 Wheat. 181) and with respect to the British Treaty of

1794, in Hughes _v._ Edwards (9 Wheat. 489). A treaty stipulation may be

effectual to protect the land of an alien from forfeiture by escheat

under the laws of a State. Orr _v._ Hodgson (4 Wheat. 458). By the

British treaty of 1794, 'all impediment of alienage was absolutely

levelled with the ground despite the laws of the States. It is the

direct constitutional question in its fullest conditions. Yet the

Supreme Court held that the stipulation was within the constitutional

powers of the Union. Fairfax's Devisees _v._ Hunter's Lessee, 7 Cr. 627;

_see_ Ware _v._ Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun,

after laying down certain exceptions and qualifications which do not

affect this case, says: 'Within these limits all questions which may

arise between us and other powers, be the subject-matter what it may,

fall within the treaty-making power and may be adjusted by it.' Treat.

on the Const. and Gov. of the U.S. 204.

"If the national government has not the power to do what is done by such

treaties, it cannot be done at all, for the States are expressly

forbidden to 'enter into any treaty, alliance, or confederation.'

Const., art. I. sect. 10.

"It must always be borne in mind that the Constitution, laws, and

treaties of the United States are as much a part of the law of every

State as its own local laws and Constitution. This is a fundamental

principle in our system of complex national polity." 100 U.S. at

489-490.

[159] 100 U.S. 483 (1880).

[160] _See also_ De Geofroy _v._ Riggs, 133 U.S. 258 (1890); Sullivan

_v._ Kidd, 254 U.S. 433 (1921); Nielsen _v._ Johnson, 279 U.S. 47

(1929). 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 nonresident alien _wife_

of a person killed within the State, the right to sue for wrongful

death, although such right was afforded to native resident _relatives_.

Maiorano _v._ Baltimore & O.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).

[161] Terrace _v._ Thompson, 263 U.S. 197 (1923).

[162] 332 U.S. 633 (1948). _See also_ Takahashi _v._ Fish and Game

Comm., 334 U.S. 410 (1948), in which a California statute prohibiting

the issuance of fishing licenses to persons ineligible to citizenship is

disallowed, both on the basis of Amendment XIV 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.

[163] This occurred in the much advertised case of Sei Fujii _v._ State

of California, 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".

[164] Clark _v._ Allen, 331 U.S. 503 (1947).

[165] 1 Cr. 103, 109 (1801).

[166] Foster _v._ Neilson, 2 Pet. 253, 314 (1829); Strother _v._ Lucas,

12 Pet. 410, 439 (1838); Edye _v._ Robertson (Head Money Cases), 112

U.S. 580, 598, 599 (1884); United States _v._ Rauscher, 119 U.S. 407,

419 (1886); Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940).

[167] The doctrine of political questions is not always strictly adhered

to in cases of treaty interpretation. In the case of the "_Appam_" it

was conspicuously departed from. This was a British merchant vessel

which was captured by a German cruiser early in 1916 and brought by a

German crew into Newport News, Virginia. The German Imperial Government

claimed that under the Treaties of 1799 and 1828 between the United

States and Prussia, the vessel was entitled to remain in American waters

indefinitely. Secretary of State Lansing ruled against the claim, and

the Supreme Court later did the same, but ostensibly on independent

grounds and without reference to the attitude of the Department of

State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a

principle of International Law that, as respects the rights of the

signatory parties, a treaty is binding from the date of signature, a

different rule applies in this country as to a treaty as "law of the

land" and as such a source of human rights. Before a treaty can thus

operate it must have been approved by the Senate. Haver _v._ Yaker, 9

Wall. 32 (1870).

[168] _See_ Crandall, Treaties, Their Making and Enforcement, (2d ed.),

165-171, with citations.

[169] Madison Writings (Hunt ed.), 264.

[170] "We express no opinion as to whether Congress is bound to

appropriate the money * * * It is not necessary to consider it in this

case, as Congress made prompt appropriation of the money stipulated in

the treaty" (the Treaty of Paris of 1899 between Spain and the United

States). De Lima _v._ Bidwell, 182 U.S. 1, 198 (1901). For a list of

earlier appropriations of the same kind, _see_ Crandall, 179-180, n. 35.

[171] Willoughby, On the Constitution, I (2d ed., New York, 1929), 558.

_See also_ H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review

of the subject.

[172] Edye _v._ Robertson (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 Op. 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. No.

13,799 (1855). The case turned on the following question: "If an act of

Congress should levy a duty upon imports, which an existing commercial

treaty declares shall not be levied, so that the treaty is in conflict

with the act, does the former or the latter give the rule of decision in

a judicial tribunal of the United States, in a case to which one rule or

the other must be applied?"

Citing the supremacy clause of the Constitution, Justice Curtis said:

"There is nothing in the language of this clause which enables us to

say, that in the case supposed, the treaty, and not the act of Congress,

is to afford the rule. Ordinarily, treaties are not rules prescribed by

sovereigns for the conduct of their subjects, but contracts, by which

they agree to regulate their own conduct. This provision of our

Constitution has made treaties part of our municipal law. But it has not

assigned to them any particular degree of authority in our municipal

law, nor declared whether laws so enacted shall or shall not be

paramount to laws otherwise enacted. * * * [This] is solely a question

of municipal, as distinguished from public law. The foreign sovereign

between whom and the United States a treaty has been made, has a right

to expect and require its stipulations to be kept with scrupulous good

faith; but through what internal arrangements this shall be done, is,

exclusively, for the consideration of the United States. Whether the

treaty shall itself be the rule of action of the people as well as the

government, whether the power to enforce and apply it shall reside in

one department, or another, neither the treaty itself, nor any

implication drawn from it, gives him any right to inquire. If the people

of the United States were to repeal so much of their constitution as

makes treaties part of their municipal law, no foreign sovereign with

whom a treaty exists could justly complain, for it is not a matter with

which he has any concern. * * * By the eighth section of the first

article of the Constitution, power is conferred on Congress to regulate

commerce with foreign nations, and to lay duties, and to make all laws

necessary and proper for carrying those powers into execution. That the

act now in question is within the legislative power of Congress, unless

that power is controlled by the treaty, is not doubted. It must be

admitted, also, that in general, power to legislate on a particular

subject, includes power to modify and repeal existing laws on that

subject, and either substitute new laws in their place, or leave the

subject without regulation, in those particulars to which the repealed

laws applied. There is therefore nothing in the mere fact that a treaty

is a law, which would prevent Congress from repealing it. Unless it is

for some reason distinguishable from other laws, the rule which it gives

may be displaced by the legislative power, at its pleasure. * * * I

think it is impossible to maintain that, under our Constitution, the

President and Senate exclusively, possess the power to modify or repeal

a law found in a treaty. If this were so, inasmuch as they can change or

abrogate one treaty, only by making another inconsistent with the first,

the government of the United States could not act at all, to that

effect, without the consent of some foreign government; for no new

treaty, affecting, in any manner, one already in existence, can be made

without the concurrence of two parties, one of whom must be a foreign

sovereign. That the Constitution was designed to place our country in

this helpless condition, is a supposition wholly inadmissible. It is not

only inconsistent with the necessities of a nation, but negatived by the

express words of the Constitution. * * *" _See also_ The Cherokee

Tobacco, 11 Wall. 616 (1871); United States _v._ Forty-Three Gallons of

Whiskey, 108 U.S. 491, 496 (1883); Botiller _v._ Dominguez, 130 U.S. 238

(1889); Chae Chan Ping _v._ United States, 130 U.S. 581, 600 (1889);

Whitney _v._ Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting _v._

United States, 149 U.S. 688, 721 (1893); etc. "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._ Reichert _v._ Felps, 6 Wall. 160, 165-166 (1868), where 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 * * *"

[173] United States _v._ Schooner Peggy, 1 Cr. 103 (1801).

[174] Foster _v._ Neilson, 2 Pet. 253 (1829).

[175] United States _v._ Percheman, 7 Pet. 51 (1833).

[176] Willoughby, On the Constitution, I, (2d ed.), 555.

[177] 288 U.S. 102 (1933).

[178] Ibid. 107-122.

[179] 124 U.S. 190 (1888).

[180] It is arguable that the maximum _leget posteriores_ is not the

most eligible rule for determining conflicts between "laws of the United

States * * * made in pursuance thereof" (i.e. of the Constitution) and

"treaties made * * * under the authority of the United States". It may

be that the former, being mentioned immediately after "this

Constitution" and before "treaties," are entitled always to prevail over

the latter, just as both acts of Congress and treaties yield to the

Constitution.

[181] 1 Stat. 578.