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Annotation 7 - Article II

    Section 2. Powers and Duties of the President

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

  COMMANDER-IN-CHIEF

  Development of the Concept

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

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

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

  The Prize Cases .--The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws. 110 In his famous message to Congress of July 4, 1861, 111 Lincoln advanced the claim that the ''war power'' was his for the purpose of suppressing rebellion, and in the Prize Cases 112 of 1863 a divided Court sustained this theory. The immediate issue was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports. 113 The argument was advanced that a blockade to be valid must be an incident of a ''public war'' validly declared, and that only Congress could, by virtue of its power ''to declare war,'' constitutionally impart to a military situa tion this character and scope. Speaking for the majority of the Court, Justice Grier answered: ''If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers of the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.'

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

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

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

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

  Presidential Theory of the Commander-in-Chiefship in World War II--And Beyond

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

''I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescap able responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

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

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

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

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

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

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

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

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

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

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

  Presidential Government of Labor Regulations .--The most important segment of the home front regulated by what were in effect presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill. 129 Attorney General Jackson justified the seizure as growing out of the ''duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,'' as well as ''to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain.'' 130 Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. ''Whereas,'' the order read in part, ''by reason of the state of war declared to exist by joint resolutions of Congress, . . . the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board. . . .'' 131 In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943, 132 which, however, still left ample basis for presidential activity of a legislative character. 133  

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

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

The court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: ''Without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. . . . But middlemen--wholesalers and retailers--bent on defying the rationing system could raise havoc with it. . . . These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduit. . . . Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. . . . From the point of view of the factory owner from whom the materials were diverted the action would be harsh. . . . But in time of war the national interest cannot wait on individual claims to preference. Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil.'' 137 Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern. 138  

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

Congress thereafter enacted a new Housing and Rent Act to continue the controls begun in 1942 142 and continued the draft. 143 With the outbreak of the Korean War, legislation was enacted establishing general presidential control over the economy again 144 and by executive order the President created agencies to exercise the power. 145 The Court continued to assume the existence of a state of wartime emergency prior to Korea but with misgivings. In Woods v. Cloyd W. Miller Co., 146 the Court held constitutional the new rent control law on the ground that cessation of hostilities did not conclude the Government's powers but that the power continued to remedy the evil arising out of the emergency. Yet for the Court, Justice Douglas noted: ''We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today's decision.'' 147 Justice Jackson, while concurring, noted that he found the war power ''the most dangerous one to free government in the whole catalogue of powers'' and cautioned that its exercise should ''be scrutinized with care.'' 148 And in Ludecke v. Watkins, 149 four Justices were prepared to hold that the presumption in the statute under review of continued war with Germany was fiction and not to be utilized.

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

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

Footnotes

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

[Footnote 106] The Federalist, No. 69 (J. Cooke ed., 1961), 465.

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

[Footnote 108] Fleming v. Page, 50 U.S. (9 How.) 603, 615 , 618 (1850).

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

[Footnote 110] 1 Stat. 424 (1795): 2 Stat. 443 (1807), now 10 U.S.C. Sec. Sec. 331-334. See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 - 33 (1827), asserting the finality of the President's judgment of the existence of a state of facts requiring his exercise of the powers conferred by the act of 1795.

[Footnote 111] 7 J. Richardson, op. cit., n.42, 3221, 3232.

[Footnote 112]   67 U.S. (2 Bl.) 635 (1863).

[Footnote 113] 7 J. Richardson, op. cit., n.42, 3215, 3216, 3481.

[Footnote 114] Id., 2 Bl. (67 U.S.), 668-670.

[Footnote 115] See generally, E. Corwin, Total War and the Constitution (New York: 1946).

[Footnote 116] 12 Stat. 326 (1861).

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

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

[Footnote 119] 56 Stat. 23 (1942).

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

[Footnote 121] For a listing of the agencies and an account of their creation to the close of 1942, see Vanderbilt, War Powers and Their Administration, in 1942 Annual Survey of American Law (New York Univ.), 106.

[Footnote 122] 143 F.2d 145 (D.C.Cir. 1944).

[Footnote 123] Id., 149.

[Footnote 124] E. Corwin, op. cit., n.42, 244, 245, 459.

[Footnote 125] E.O. 9066, 7 Fed. Reg. 1407 (1942).

[Footnote 126] 56 Stat. 173 (1942).

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

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

[Footnote 129] E.O. 8773, 6 Fed. Reg. 2777 (1941).

[Footnote 130] E. Corwin, Total War and the Constitution (New York: 1946), 47-48.

[Footnote 131] 7 Fed. Reg. 237 (1942).

[Footnote 132] 57 Stat. 163 (1943).

[Footnote 133] See Vanderbilt, War Powers and their Administration, 1945 Annual Survey of American Law (N.Y. Univ.), 254, 271-273.

[Footnote 134] E.O. 9370, 8 Fed. Reg. 11463 (1943).

[Footnote 135] 56 Stat. 23 (1942).

[Footnote 136]   322 U.S. 398 (1944).

[Footnote 137] Id., 404-405.

[Footnote 138] E. Corwin, op. cit., n.44, 249-250.

[Footnote 139] Proc. 2714, 12 Fed. Reg. 1 (1947).

[Footnote 140] S.J. Res. 123, 61 Stat. 449 (1947).

[Footnote 141] Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140 n.3 (1948).

[Footnote 142] 61 Stat. 193 (1947).

[Footnote 143] 62 Stat. 604 (1948).

[Footnote 144] Defense Production Act of 1950, 64 Stat. 798.

[Footnote 145] E.O. 10161, 15 Fed. Reg. 6105 (1950).

[Footnote 146]   333 U.S. 138 (1948).

[Footnote 147] Id., 143-144.

[Footnote 148] Id., 146-147.

[Footnote 149]   335 U.S. 160 (1948).

[Footnote 150] See A. Kelly & W. Harbison, The American Constitution--Its Origins and Development (New York: 4th ed. 1970), ch. 31.

[Footnote 151] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

[Footnote 152] Sec. 301(1), 55 Stat. 838, 839-840 (1941).

[Footnote 153] 91 Stat. 1626, 50 U.S.C. Sec. Sec. 1701-1706.

[Footnote 154] Congress authorized the declaration of a national emergency based only on ''any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or the economy of the United States. . . .'' 50 U.S.C. Sec. 1701.

[Footnote 155] P. L. 94-412, 90 Stat. 1255 (1976).


 

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