make some provision of law operative,28 or to suspend the operation of certain provisions of law.29

2. HIGHLIGHTS OF CERTAIN CONSTITUTIONAL AND LEGAL DEVELOPMENTS AFFECTING THE USE OF THE EXECUTIVE POWER

It has been the practice, on occasion, to cite certain Executive actions as binding legal precedent even though never accepted as such by the courts and at the same time to minimize the adjudications by the courts in delineating the limits of Executive power under the actions as binding legal precedent even though never accepted as such Constitution.3 30 There have been however, a sufficient number of judicial decisions to enable us to see what the courts think of the nature and scope of the executive power, in addition to those already discussed. Further illustrations of the court's determinations are treated below.

The nature and limitations of Executive power have been a matter of controversy from the very beginning of our Nation. It is advisable to quote what appear to be two differing attitudes toward the Presidential power held by former Presidents. It is also useful to bear in mind that both viewpoints have been reconciled in practice in our history by a larger interpretation of the office of President which recognizes that the people have given certain powers to the Federal Government and prescribed a mechanism for functioning according to the basic blueprint of the Constitution. Under this blueprint the authority vested in the President is not untrammeled or unlimited.

President Theodore Roosevelt stated his views of the Presidential office as follows:

* * * I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was 28 The Brig Aurora, 7 Cranch 382; 1813.

29 Field v. Clark, 143 U. S. 649, 693; 1891. The Court stated in part:

66* * *But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the lawmaking department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed.

30 Illustrative of the comments by writers who tend to minimize the role of the courts is the following: "*** The last control over the exercise of Presidential power to be mentioned lies in the practice of judicial review. This form of control will not be discussed at length at this point because from time to time in discussing the instances of practical construction of constitutional powers by holders of the Presidential office, the limits drawn by the courts in reviewing these actions of the President may be appropriately indicated. It is sufficient to say generally that in effect judicial review has been of somewhat minor importance in determining the scope of the Presidential powers. While the courts have sometimes rebuffed Presidential pretensions, they have more often labored hard to rationalize them; most of all, they have sought on one pretext or another to keep out of this dread field. For example, in Mississippi v. Johnson, the Supreme Court confessed its inability to enjoin President Johnson from exceeding his constitutional powers or to order him to perform his constitutional duties ** (Rankin M. Gibson, The President's Inherent Emergency Powers, in the Federal Bar Journal, vol. XII 1951-52, pp. 107, 117-18.) See in this connection mention of Mississippi v. Johnson, infra, wherein the court's opinion is quoted. The court held that it would not enjoin the Executive or the legislative power but that the consequences of the exercise of either power would be reviewed and adjudicated.

forbidden by the Constitution or by the law. Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. * * * 31

In contrast, President William H. Taft expressed his views on the Presidential office in these words:

*** that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.32

These assessments of the Executive power are in a sense later echoes of sentiments expressed in the early days of this Nation's history. One of the outstanding incidents involving a controversy over the nature of the Executive power occurred in connection with President George Washington's so-called Proclamation of Neutrality in 1793. The 1793 controversy over Washington's Proclamation of Neutrality When France declared war against Great Britain (and Holland) in February 1793, her action precipitated a crisis of substantial proportions within the Government of the United States and among the populace of the young Nation. Anti-British feeling ran high, as did pro-French sympathies.

President Washington had two viewpoints represented strongly in his own Cabinet. Secretary of State Thomas Jefferson was antiBritish and pro-French while Alexander Hamilton was pro-British.33 President Washington was firmly determined to keep the United States neutral. So were Jefferson and Hamilton although each strongly favored a different side in the war. A fierce struggle ensued in Washington's Cabinet over whether he should issue a proclamation "*** for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain * *" and whether the proclamation should contain a declaration of neutrality.34

*

Jefferson opposed the issuance of a proclamation of neutrality on two grounds one political and the other constitutional. As a political ground he urged holding back a proclamation as a device for bargaining with the belligerents. On constitutional grounds Jefferson argued that such a declaration was a declaration of no war and in his

31 Quoted in Rankin M. Gibson, op. cit., p. 113. President Franklin D. Roosevelt expressed himself perhaps even more strongly along the same lines: "In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

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

"The responsibilities of the President in wartime to protect the Nation are very grave. This total war, with our fighting fronts all over the world, makes the use of Executive power far more essential than in any previous war.

"I cannot tell what powers may have to be exercised in order to win this war.

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

"When the war is won, the powers under which I act automatically revert to the people-to whom they belong" (Rankin M. Gibson, op. cit., pp. 114-115).

32 Ibid, p. 113.

33 Charles M. Thomas, American Neutrality in 1793, A Study in Cabinet Government, New York, Columbia University Press, 1931, pp. 18-20.

view it was not for the Executive to decide the question of war on the negative or the affirmative side.35 Jefferson was supported in this view by Madison, Monroe, and others. Hamilton was of the opposing view.

* *

*" of "*

**

a con* *

President Washington did issue a proclamation on April 22, 1793. His proclamation enjoined the citizens of the United States to ***** avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition duct friendly and impartial toward the belligerent powers The President's proclamation also stated that he had "*** given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the powers at war, or any of them." 36

The word "neutral" or "neutrality" was not used in the President's proclamation. But everyone recognized it as such a declaration and the Cabinet had another argument over the use of the term "neutrality" in drafting the President's speech to the Congress the next November. Washington closed the debate by stating that he never had any idea he could bind the Congress and that his proclamation could not look beyond the first day of their meeting. Moreover his speech to the Congress spoke of the proclamation merely as a declaration of the existing legal state of things.37

The struggle within the Cabinet and around President Washington found its reflection in a series of articles printed under the name of Pacificus (Hamilton) who supported Washington's actions in issuing the proclamation, and under the name of Helvidius (Madison) who opposed Washington's actions as unconstitutional. In a sense the arguments in these two series of letters, as they were called, have remained the lines of argument down through the years as will be seen in the discussion, infra, of the steel seizure case, the opinion in which was handed down by the Supreme Court in June 1952.

Basically, Hamilton's argument was that the Executive-power clause in article II was a grant of power in itself and authorized President Washington's action. Madison's opposing position was that the Executive-power clause was not a grant of power in itself since ours is not a government involving royal prerogatives. Hamilton also advanced other sources of authority for the President in the Constitution.

The second article of the constitution of the United States, section first, establishes this general proposition, that "the EXECUTIVE POWER shall be vested in a president of the United States of America."

The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive anbassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities, as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The

35 Ibid., p. 36.

36 Ibid, pp. 42-43. 37 Ibid, pp. 47-48.

difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable, that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the the legislative powers of the government, the expressions are, "all legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, "the executive power shall be vested in a president of the United States."

The enumeration ought therefore to be considered, as intended merely to specifiy the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the constitution and with the principles of free government. The general doctrine of our constitution then is, that the executive power of the nation is vested in the president; subject only to the exceptions and qualifications, which are expressed in the instrument.

Two of these have been already noticed: the participation of the Senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned: the right of the legislature "to declare war," and "grant letters of marque and reprisal."

With these exceptions, the executive power of the United States is completely lodged in the president. This mode of construing the constitution, has indeed been recognized by Congress in formal acts, upon full consideration and debate: of which the power of removal from office, is an important instance. It will follow, that if a proclamation of neutrality is merely an executive act, as it is believed has been shown, the step which has been taken by the president is liable to no just exception on the score of authority * * * 38

Madison stated in part his opposing views as follows:

The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant * * * 39

2. If we consult, for a moment, the nature and operation of the two powers to declare war and to make treaties it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws; it does not presuppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity *** in practice a tyranny.

The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws; It does not suppose pre-existing laws to be executed; it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.

These remarks will be strengthened by adding, that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and complete. From this view of the subject it must be evident, that, although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war, and the proper agent for carrying into execution the final determinations of the competent authority, yet it can have

38 Ibid, pp. 555-556

pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.

It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.

Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.40 * * *

*** Whence then can the writer (Hamilton) have borrowed it? There is but one answer to this question.

*

The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators.41

The President and the Supreme Court in the Andrew Jackson Nullification Controversy and Bank Charter Veto

President Andrew Jackson's term of office is sometimes referred to in connection with appraisals of Executive power under the Constitution, particularly as concerns the relationship of the powers of the President to those of the Supreme Court. The impression is often created that President Jackson and Chief Justice John Marshall had a head-on collision in the form of a specific case or cases and that President Jackson defied the Court. This appears to be such a widely held misconception that it is worth while briefly to summarize the facts in order to clarify the record in considering the use of Executive powers. The overlapping and coincidence of two events appear to have combined to obscure President Jackson's attitude toward the Supreme Court and its powers. One was the series of actions by the State of Georgia to assert its sovereignty over the Cherokee Nation within its borders and to deny the right of the Supreme Court to review its actions. The other was the struggle over the renewal of the charter of the Bank of the United States which took place from January to June 1832.

On March 3, 1832, Chief Justice John Marshall rendered the opinion of the Supreme Court holding a Georgia statute unconstitutional on the ground that the jurisdiction of the Federal Government over the Cherokees was exclusive, and that the State had no power to pass laws affecting them or their territory.2 The judgment of the Georgia Superior Court convicting (two missionaries who had defied the State. law) was reversed and a special mandate ordered to issue to that Court, March 5, ordering their release.

It was in connection with the uproar which followed the Court's decision that President Jackson has been quoted as saying: "Well, John Marshall has made his decision, now let him enforce it." The source of this alleged quotation is a book by Horace Greeley in which Greeley quotes an alleged remark by a Member of Congress who is supposed to have heard President Jackson make the comment." There appears to be no substantiation for the quotation so often attributed to Jackson except that it was given an aura of likelihood

40 Ibid., pp. 598-599.

41 Ibid, p. 602.

43.

42 Worcester v. Georgia, 6 Pet. 515. The material above concerning President Jackson and the Supreme Court is summarized from Charles Warren, The Supreme Court in United States History, Boston, Little, Brown & Co., 1935, vol. I, ch. 19.

43 Warren, op. cit., p. 759.