Of all the issues confronting the members of the Philadelphia Convention, the nature of the presidency ranks among the most important and the resolution of the question one of the most significant steps taken. 1 The immediate source of Article II was the New York constitution in which the governor was elective by the people and thus independent of the legislature, his term was three years and he was indefinitely re-eligible, his decisions except with regard to appointments and vetoes were unencumbered with a council, he was in charge of the militia, he possessed the pardoning power, and he was charged to take care that the laws were faithfully executed. 2 But when the Convention assembled and almost to its closing days, there was no assurance that the executive department would not be headed by plural administrators, would not be unalterably tied to the legislature, and would not be devoid of many of the powers normally associated with an executive.
Debate in the Convention proceeded against a background of many things, but most certainly uppermost in the delegates' minds was the experience of the States and of the national government under the Articles of Confederation. Reacting to the exercise of powers by the royal governors, the framers of the state constitutions had generally created weak executives and strong legislatures, though not in all instances. The Articles of Confederation vested all powers in a unicameral congress. Experience had demonstrated that harm was to be feared as much from an unfettered legislature as from an uncurbed executive and that many advantages of a reasonably strong executive could not be conferred on the legislative body. 3
Nonetheless, the Virginia Plan, which formed the basis of discussion, offered in somewhat vague language a weak executive. Selection was to be by the legislature, and that body was to determine the major part of executive competency. The executive's salary was, however, to be fixed and not subject to change by the legislative branch during the term of the executive, and he was ineligible for re-election so that he need not defer overly to the legislature. A council of revision was provided of which the executive was a part with power to negative national and state legislation. The executive power was said to be the power to ''execute the national laws'' and to ''enjoy the Executive rights vested in Congress by the Confederation.'' The Plan did not provide for a single or plural executive, leaving that issue open. 4
When the executive portion of the Plan was taken up on June 1, James Wilson immediately moved that the executive should consist of a single person. 5 In the course of his remarks, Wilson demonstrated his belief in a strong executive, advocating election by the people, which would free the executive of dependence on the national legislature and on the States, proposing indefinite re-eligibility, and preferring an absolute negative though in concurrence with a council of revision. 6 The vote on Wilson's motion was put over until the questions of method of selection, term, mode of removal, and powers to be conferred had been considered; subsequently, the motion carried, 7 and the possibility of the development of a strong President was made real.
Only slightly less important was the decision finally arrived at not to provide for an executive council, which would participate not only in the executive's exercise of the veto power but also in the exercise of all his executive duties, notably appointments and treaty making. Despite strong support for such a council, the Convention ultimately rejected the proposal and adopted language vesting in the Senate the power to ''advise and consent'' with regard to these matters. 8
Finally, the designation of the executive as the ''President of the United States'' was made in a tentative draft reported by the Committee on Detail 9 and accepted by the Convention without discussion. 10 The same clause had provided that the President's title was to be ''His Excellency,'' 11 and, while this language was also accepted without discussion, 12 it was subsequently omitted by the Committee on Style and Arrangement 13 with no statement of the reason and no comment in the Convention.
The most obvious meaning of the language of Article II, Sec. 1, is to confirm that the executive power is vested in a single person, but almost from the beginning it has been contended that the words mean much more than this simple designation of locus. Indeed, contention with regard to this language reflects the much larger debate about the nature of the Presidency. With Justice Jackson, we ''may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.'' 14 At the least, it is no doubt true that the ''loose and general expressions'' by which the powers and duties of the executive branch are denominated 15 place the President in a position in which he, as Professor Woodrow Wilson noted, ''has the right, in law and conscience, to be as big a man as he can'' and in which ''only his capacity will set the limit.'' 16
Hamilton and Madison .--In Hamilton's defense of President Washington's issuance of a neutrality proclamation upon the outbreak of war between France and Great Britain may be found not only the lines but most of the content of the argument that Article II vests significant powers in the President as possessor of executive powers not enumerated in subsequent sections of Article II. 17 Said Hamilton: ''The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.
''The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The executive power shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free gov ernment. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.'' 18
Madison's reply to Hamilton, in five closely reasoned articles, 19 was almost exclusively directed to Hamilton's development of the contention from the quoted language that the conduct of foreign relations was in its nature an executive function and that the powers vested in Congress which bore on this function, such as the power to declare war, did not diminish the discretion of the President in the exercise of his powers. Madison's principal reliance was on the vesting of the power to declare war in Congress, thus making it a legislative function rather than an executive one, combined with the argument that possession of the exclusive power carried with it the exclusive right to judgment about the obligations to go to war or to stay at peace, negating the power of the President to proclaim the nation's neutrality. Implicit in the argument was the rejection of the view that the first section of Article II bestowed powers not vested in subsequent sections. ''Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or . . . perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.'' 20 The arguments are today pursued with as great fervor, as great learning, and with two hundred years experience, but the constitutional part of the contentiousness still settles upon the reading of the vesting clauses of Articles I, II, and III. 21
The Myers Case .--However much the two arguments are still subject to dispute, Chief Justice Taft, himself a former President, appears in Myers v. United States 22 to have carried a majority of the Court with him in establishing the Hamiltonian conception as official doctrine. That case confirmed one reading of the ''Decision of 1789'' in holding the removal power to be constitutionally vested in the President. 23 But its importance here lies in its interpretation of the first section of Article II. That language was read, with extensive quotation from Hamilton and from Madison on the removal power, as vesting all executive power in the President, the subsequent language was read as merely particularizing some of this power, and consequently the powers vested in Congress were read as exceptions which must be strictly construed in favor of powers retained by the President. 24 Myers remains the fountainhead of the latitudinarian constructionists of presidential power, but its dicta, with regard to the removal power, were first circumscribed in Humphrey's Executor v. United States, 25 and then considerably altered in Morrison v. Olson; 26 with regard to the President's ''inherent'' powers, the Myers dicta were called into considerable question by Youngstown Sheet & Tube Co. v. Sawyer. 27
The Curtiss-Wright Case .--Further Court support of the Hamiltonian view was advanced in United States v. Curtiss-Wright Export Corp., 28 in which Justice Sutherland posited the doctrine that the power of the National Government in foreign relations is not one of enumerated but of inherent powers; 29 this doctrine was then combined with Hamilton's contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were at all relevant in foreign affairs. ''The broad statement that the federal government can exercise no powers except those specifically enumerated in the constitution, and such implied powers--as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as were thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. . . . That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. . . .
''As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. . . .
''It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties if they had never been mentioned in the Constitution, would have been vested in the federal government as necessary concomitants of nationality. . . .
''Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation . . . .'' 30
Scholarly criticism of Justice Sutherland's reasoning has demonstrated that his essential postulate, the passing of sovereignty in external affairs directly from the British Crown to the colonies as a collective unit, is in error. 31 Dicta in later cases controvert the conclusions drawn in Curtiss-Wright about the foreign relations power being inherent rather than subject to the limitations of the delegated powers doctrine. 32 The holding in Kent v. Dulles 33 that delegation to the Executive of discretion in the issuance of passports must be measured by the usual standards applied in domestic delegations appeared to circumscribe, Justice Sutherland's more expansive view, but the subsequent limitation of that decision, though formally reasoned within its analytical framework, coupled with language addressed to the President's authority in foreign affairs, leaves clouded the vitality of that decision. 34 The case nonetheless remains with Myers v. United States the source and support of those contending for broad inherent executive powers. 35
The Youngstown Case .--The only recent case in which the ''inherent'' powers of the President or the issue of what executive powers are vested by the first section of Article II has been exten sively considered 36 is Youngstown Sheet & Tube Co. v. Sawyer, 37 and the multiple opinions there produced make difficult an evaluation of the matter. During the Korean War, President Truman seized the steel industry then in the throes of a strike. No statute authorized the seizure, and the Solicitor General defended the action as an exercise of the President's executive powers which were conveyed by the first section of Article II, by the obligation to enforce the laws, and by the vesting of the function of commander-in-chief. Six-to-three the Court rejected this argument and held the seizure void. But the doctrinal problem is complicated by the fact that Congress had expressly rejected seizure proposals in considering labor legislation and had authorized procedures not followed by the President which did not include seizure. Thus, four of the majority Justices 38 appear to have been decisively influenced by the fact that Congress had denied the power claimed and this in an area in which the Constitution vested the power to decide at least concurrently if not exclusively in Congress. Three and perhaps four Justices 39 appear to have rejected the Government's argument on the merits while three 40 accepted it in large measure. Despite the inconclusiveness of the opinions, it seems clear that the result was a substantial retreat from the proclamation of vast presidential powers made in Myers and Curtiss-Wright. 41
The Practice in the Presidential Office .--However contested the theory of expansive presidential powers, the practice in fact has been one of expansion of those powers, an expansion that a number of ''weak'' Presidents and the temporary ascendancy of Congress in the wake of the Civil War has not stemmed. Perhaps the point of no return in this area was reached in 1801 when the Jefferson-Madison ''strict constructionists'' came to power and, instead of diminishing executive power and federal power in general, acted rather to enlarge both, notably by the latitudinarian construction of implied federal powers to justify the Louisiana Purchase. 42 After a brief lapse into Cabinet government, the executive in the hands of Andrew Jackson stamped upon the presidency the outstanding features of its final character, thereby reviving, in the opinion of Henry Jones Ford, ''the oldest political institution of the race, the elective Kingship.'' 43 While the modern theory of presidential power was conceived primarily by Alexander Hamilton, the modern conception of the presidential office was the contribution primarily of Andrew Jackson. 44
In recent cases, the Supreme Court has pronouncedly protected the Executive Branch, applying separation-of-powers principles to invalidate what it perceived to be congressional usurpation of executive power, but its mode of analysis has lately shifted seemingly to permit Congress a greater degree of discretion. 45 Significant change in the position of the Executive Branch respecting its position on separation of powers may be discerned in two briefs of the Department of Justice's Office of Legal Counsel, which may spell some measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine. Supp.1 The two opinions withdraw from the contention of the Department of Justice, following Buckley v. Valeo, that the execution of the laws is an executive function that may be carried out only by persons appointed pursuant to the appointments clause, thus precluding delegations to state and local officers and to private parties (as in qui tam actions), as well as to glosses on the take care clause and other provisions of the Constitution. Whether these memoranda signal long-term change depends on several factors, importantly on whether they are adhered to by subsequent administrations. In striking down the congressional veto as circumventing Article I's bicameralism and presentment requirements attending exercise of legislative power, the Court also suggested in INS v. Chadha 46 that the particular provision in question, involving veto of the Attorney General's decision to suspend deportation of an alien, in effect allowed Congress impermissible participation in execution of the laws. 47 And in Bowsher v. Synar, 48 the Court held that Congress had invalidly vested executive functions in a legislative branch official. Underlying both decisions was the premise, stated by Chief Justice Burger's opinion of the Court in Chadha, that ''the powers delegated to the three Branches are functionally identifiable,'' distinct, and definable. 49 In a ''standing-to-sue'' case, Justice Scalia for the Court denied that Congress could by statute confer standing on citizens not suffering particularized injuries to sue the Federal Government to compel it to carry out a duty imposed by Congress, arguing that to permit this course would be to allow Congress to divest the President of his obligation under the ''take care'' clause and to delegate the power to the judiciary. 50 On the other hand, the Court in the independent counsel case, while acknowledging that the contested statute did restrict to some degree a constitutionally delegated function, law enforcement, upheld the law upon a flexible analysis that emphasized that neither the legislative nor the judicial branch had aggrandized its power and that the incursion into executive power did not impermissibly interfere with the President's constitutionally assigned functions. 51
At issue in Synar were the responsibilities vested in the Comptroller General by the ''Gramm-Rudman-Hollings'' Deficit Control Act, 52 which set maximum deficit amounts for federal spending for fiscal years 1986 through 1991, and which directed across-the-board cuts in spending when projected deficits would exceed the target deficits. The Comptroller was to prepare a report for each fiscal year containing detailed estimates of projected federal revenues and expenditures, and specifying the reductions, if any, necessary to meet the statutory target. The President was required to implement the reductions specified in the Comptroller's report. The Court viewed these functions of the Comptroller ''as plainly entailing execution of the law in constitutional terms. Interpreting a law . . . to implement the legislative mandate is the very essence of 'execution' of the law,'' especially where ''exercise [of] judgment'' is called for, and where the President is required to implement the interpretation. 53 Because Congress by earlier enactment had retained authority to remove the Comptroller General from office, the Court held, executive powers may not be delegated to him. ''By placing the responsibility for execution of the [Act] in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.'' 54
The Court in Chadha and Synar ignored or rejected assertions that its formalistic approach to separation of powers may bring into question the validity of delegations of legislative authority to the modern administrative state, sometimes called the ''fourth branch.'' As Justice White asserted in dissent in Chadha, ''by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments. . . . There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term.'' 55 Moreover, Justice White noted, ''rules and adjudications by the agencies meet the Court's own definition of legislative action.'' 56 Justice Stevens, concurring in Synar, sounded the same chord in suggesting that the Court's holding should not depend on classification of ''chameleon-like'' powers as executive, legislative, or judicial. 57 The Court answered these assertions on two levels: that the bicameral protection ''is not necessary'' when legislative power has been delegated to another branch confined to implementing statutory standards set by Congress, and that ''the Constitution does not so require.'' 58 In the same context, the Court acknowledged without disapproval that it had described some agency action as resembling lawmaking. 59 Thus Chadha may not be read as requiring that all ''legislative power'' as the Court defined it must be exercised by Congress, and Synar may not be read as requiring that all ''executive power'' as the Court defined it must be exercised by the executive. A more limited reading is that when Congress elects to exercise legislative power itself rather than delegate it, it must follow the prescribed bicameralism and presentment procedures, and when Congress elects to delegate legislative power or assign executive functions to the executive branch, it may not control exercise of those functions by itself exercising removal (or appointment) powers.
A more flexible approach was followed in the independent counsel case. Here, there was no doubt that the statute limited the President's law enforcement powers. Upon a determination by the Attorney General that reasonable grounds exist for investigation or prosecution of certain high ranking government officials, he must notify a special, Article III court which appoints a special counsel. The counsel is assured full power and independent authority to investigate and, if warranted, to prosecute. Such counsel may be removed from office by the Attorney General only for cause as prescribed in the statute. 60 The independent counsel was assuredly more free from executive supervision than other federal prosecutors. Instead of striking down the law, however, the Court undertook a careful assessment of the degree to which executive power was invaded and the degree to which the President retained sufficient powers to carry out his constitutionally assigned duties. Also considered by the Court was the issue whether in enacting the statute Congress had attempted to aggrandize itself or had attempted to enlarge the judicial power at the expense of the executive. 61
In the course of deciding that the President's action in approving the closure of a military base, pursuant to statutory authority, was not subject to judicial review, the Court enunciated a principle that may mean a great deal, constitutionally speaking, or that may not mean much of anything. Supp.2 The lower court had held that, while review of presidential decisions on statutory grounds might be precluded, his decisions were reviewable for constitutionality; in that court's view, whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine. The Supreme Court found this analysis flawed. ''Our cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional violations and claims that an official has acted in excess of his statutory authority.'' Supp.3 Thus, the Court drew a distinction between executive action undertaken without even the purported warrant of statutory authorization and executive action in excess of statutory authority. The former may violate separation of powers, while the latter will not. Supp.4
Doctrinally, the distinction is important and subject to unfortunate application. Supp.5 Whether the brief, unilluminating discussion in Dalton will bear fruit in constitutional jurisprudence, however, is problematic.
Formerly the term of four years during which the President ''shall hold office'' was reckoned from March 4 of the alternate odd years beginning with 1789. This came about from the circumstance that under the act of September 13, 1788, of ''the Old Congress,'' the first Wednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the Constitution. Although as a matter of fact, Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that the presidential term should be reckoned from the fourth day of March next succeeding the date of election. And so things stood until the adoption of the Twentieth Amendment by which the terms of President and Vice-President end at noon on the 20th of January. 62
The prevailing sentiment of the Philadelphia Convention favored the indefinite eligibility of the President. It was Jefferson who raised the objection that indefinite eligibility would in fact be for life and degenerate into an inheritance. Prior to 1940, the idea that no President should hold office for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word ''term.'' The voters' departure from the tradition in electing President Franklin D. Roosevelt to third and fourth terms led to the proposal by Congress on March 24, 1947, of an amendment to the Constitution to embody the tradition in the Constitutional Document. The proposal became a part of the Constitution on February 27, 1951, in consequence of its adoption by the necessary thirty-sixth State, which was Minnesota. 63
[Footnote 1] The background and the action of the Convention is comprehensively examined in C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923). A review of the Constitution's provisions being put into operation is J. Hart, The American Presidency in Action 1789 (New York: 1948).
[Footnote 2] Hamilton observed the similarities and differences between the President and the New York Governor in The Federalist, No. 69 (J. Cooke ed. 1961), 462-470. On the text, see New York Constitution of 1777, Articles XVII-XIX, in 5 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th Congress, 2d sess. (Washington: 1909), 2632-2633.
[Footnote 3] C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), chs. 1-3.
[Footnote 4] The plans offered and the debate is reviewed in C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 4. The text of the Virginia Plan may be found in 1 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 21.
[Footnote 5] Id., 65.
[Footnote 6] Id., 65, 66, 68, 69, 70, 71, 73.
[Footnote 7] Id., 93.
[Footnote 8] The last proposal for a council was voted down on September 7. 2 id., 542.
[Footnote 9] Id., 185.
[Footnote 10] Id., 401.
[Footnote 11] Id., 185.
[Footnote 12] Id., 401.
[Footnote 13] Id., 597.
[Footnote 15] A. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersburg, Va.: 1840), 116.
[Footnote 16] W. Wilson, Constitutional Government in the United States (New York: 1908), 202, 205.
[Footnote 17] 32 Writings of George Washington, J. Fitzpatrick ed. (Washington: 1939), 430. See C. Thomas, American Neutrality in 1793: A Study in Cabinet Government (New York: 1931).
[Footnote 18] 7 Works of Alexander Hamilton, J. C. Hamilton ed. (New York: 1851), 76, 80-81 (emphasis in original).
[Footnote 19] 1 Letters and Other Writings of James Madison (Philadelphia: 1865), 611-654.
[Footnote 20] Id., 621. In the congressional debates on the President's power to remove executive officeholders, cf. C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6, Madison had urged contentions quite similar to Hamilton's, finding in the first section of Article II and in the obligation to execute the laws a vesting of executive powers sufficient to contain the power solely on his behalf to remove subordinates. 1 Annals of Congress 496-497. Madison's language here was to be heavily relied on by Chief Justice Taft on this point in Myers v. United States, 272 U.S. 52, 115 -126 (1926), but compare, Corwin, The President's Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467, 1474-1483, 1485-1486.
[Footnote 21] Compare Calabresi & Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992), with Froomkin, The Imperial Presidency's New Vestments, 88 Nw. U. L. Rev. 1346 (1994), and responses by Calabresi, Rhodes and Froomkin, in id., 1377, 1406, 1420.
[Footnote 23] C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), ch. 6.
[Footnote 24] Myers v. United States, 272 U.S. 52, 163 -164 (1926). Professor Taft had held different views. ''The true view of the executive functions is, as I conceive it, that the president can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary in its exercise. Such specific grant must be either in the federal constitution or in an act of congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest. . . .'' W. Taft, Our Chief Magistrate and His Powers (New York: 1916), 139-140.
[Footnote 29] Id., 315-316, 318.
[Footnote 30] Ibid.
[Footnote 31] Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland's Theory, 55 Yale L. J. 467 (1946); Patterson, In re United States v. Curtiss-Wright Corp., 22 Texas L. Rev. 286, 445 (1944); Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 Yale L. J. 1 (1973), reprinted in C. Lofgren, ''Government from Reflection and Choice''--Constitutional Essays on War, Foreign Relations, and Federalism (1986), 167.
[Footnote 34] Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id., 291, 293-294 & n. 24, 307-308. But see Dames & Moore v. Regan, 453 U.S. 654, 659 -662 (1981), qualified by id., 678. Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director's dismissal of employee, over dissent relying in part on Curtiss-Wright as interpretive force counseling denial of judicial review), with Department of the Navy v. Egan, 484 U.S. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President's inherent power to protect information without any explicit legislative grant). In Loving v. United States, 116 S. Ct. 1737 (1996), the Court recurred to the original setting of Curtiss-Wright, a delegation to the President without standards. Congress, the Court found, had delegated to the President authority to structure the death penalty provisions of military law so as to bring the procedures, relating to aggravating and mitigating factors, into line with constitutional requirements, but Congress had provided no standards to guide the presidential exercise of the authority. Standards were not required, held the Court, because his role as Commander-in-Chief gave him responsibility to superintend the military establishment and Congress and the President had interlinked authorities with respect to the military. Where the entity exercising the delegated authority itself possesses independent authority over the subject matter, the familiar limitations on delegation do not apply. Id. at 1750-51.
[Footnote 35] That the opinion ''remains authoritative doctrine'' is stated in L. Henkin, Foreign Affairs and the Constitution (1972), 25-26. It is utilized as an interpretive precedent in American Law Institute, Restatement (Third) of the Law, The Foreign Relations Law of the United States (1987), see, e.g., Sec. Sec. 1, 204, 339. It will be noted, however, that the Restatement is circumspect about the reach of the opinion in controversies between presidential and congressional powers.
[Footnote 36] The issue is implicit in several of the opinions of the Justices in New York Times Co. v. United States, 403 U.S. 713 (1971). See id., 727, 728-730 (Justice Stewart concurring), 752, 756-759 (Justice Harlan dissenting). Assertions of inherent power to sustain presidential action were made in Dames & Moore v. Regan, 453 U.S. 654 (1981), but the Court studiously avoided these arguments in favor of a somewhat facile statutory analysis. Separation-of-powers analysis informed the Court's decisions in United States v. Nixon, 418 U.S. 683 (1974), Nixon v. Administrator of General Services, 433 U.S. 425 (1977), Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Harlow v. Fitzgerald, 457 U.S. 800 (1982). While perhaps somewhat latitudinarian in some respect of the President's powers, the analysis looks away from inherent powers. But see Haig v. Agee, 453 U.S. 280 (1981), in which the statutory and congressional ratification analyses is informed with a view of a range of presidential foreign affairs discretion combined with judicial deference according the President de facto much of the theoretically- based authority spelled out in Curtiss-Wright.
[Footnote 37] 343 U.S. 579 (1952). See Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953). A case similar to Youngstown was AFL-CIO v. Kahn, 618 F.2d 784 (D.C.Cir.) (en banc), cert. den., 443 U.S. 915 (1979), sustaining a presidential order denying government contracts to companies failing to comply with certain voluntary wage and price guidelines on the basis of statutory interpretation of certain congressional delegations.
[Footnote 38] 343 U.S. 593, 597 -602 (Justice Frankfurter concurring, though he also noted he expressly joined Justice Black's opinion as well), 634, 635-640 (Justice Jackson concurring), 655, 657 (Justice Burton concurring), 660 (Justice Clark concurring).
[Footnote 39] Id., 582 (Justice Black delivering the opinion of the Court), 629 (Justice Douglas concurring, but note his use of the Fifth Amendment just compensation argument), 634 (Justice Jackson concurring), 655 (Justice Burton concurring).
[Footnote 40] Id., 667 (Chief Justice Vinson and Justices Reed and Minton dissenting).
[Footnote 41] Myers v. United States, 272 U.S. 52 (1926); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Note that in Dames & Moore v. Regan, 453 U.S. 654, 659 -662, 668-669 (1981), the Court turned to Youngstown as embodying ''much relevant analysis'' on an issue of presidential power.
[Footnote 42] For the debates on the constitutionality of the Purchase, see E. Brown, The Constitutional History of the Louisiana Purchase, 1803-1812 (Berkeley: 1920). The differences and similarities between the Jeffersonians and the Federalists can be seen by comparing L. White, The Jeffersonians--A Study in Administrative History 1801-1829 (New York: 1951), with L. White, The Federalists--A Study in Administrative HISTORY (New York: 1948). That the responsibilities of office did not turn the Jeffersonians into Hamiltonians may be gleaned from Madison's veto of an internal improvements bill. 2 J. Richardson (comp.), Messages and Papers of the Presidents (Washington: 1897), 569.
[Footnote 43] H. Ford, The Rise and Growth of American Politics (New York: 1898), 293.
[Footnote 44] E. Corwin, The President--Office and Powers 1787-1957 (New York: 4th ed. 1957), ch. 1.
[Footnote 45] Not that there have not been a few cases prior to the present period. See Myers v. United States, 272 U.S. 52 (1926). But a hallmark of previous disputes between President and Congress has been the use of political combat to resolve them, rather than a resort to the courts. The beginning of the present period was Buckley v. Valeo, 424 U.S. 1, 109 -143 (1976).
[Footnote 1 (1996 Supplement)] Memorandum for John Schmidt, Associate Attorney General, from Assistant Attorney General Walter Dellinger, Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, The Constitutional Separation of Powers Between the President and Congress (May 7, 1996). The principles laid down in the memoranda depart significantly from previous positions of the Department of Justice. For conflicting versions of the two approaches, see Constitutional Implications of the Chemical Weapons Convention, Hearings Before the Senate Judiciary Subcommittee on the Constitution, Federalism, and Property Rights, 104th Cong., 2d Sess. (1996), 11-26, 107-10 (Professor John C. Woo), 80-106 (Deputy Assistant Attorney General Richard L. Shiffrin).
[Footnote 47] Although Chief Justice Burger's opinion of the Court described the veto decision as legislative in character, it also seemingly alluded to the executive nature of the decision to countermand the Attorney General's application of delegated power to a particular individual. ''Disagreement with the Attorney General's decision on Chadha's deportation . . . involves determinations of policy that Congress can implement in only one way. . . . Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.'' Id., 954-55. The Court's uncertainty is explicitly spelled out in Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, inc., 501 U.S. 252 (1991).
[Footnote 49] Id., 462 U.S., 951.
[Footnote 50] Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2144-2146 (1992). Evidently, however, while Justices Kennedy and Souter joined this part of the opinion, id., 2146 (concurring in part and concurring in the judgment), they do not fully subscribe to the apparent full reach of Justice Scalia's doctrinal position, leaving the position, if that be true, supported in full only by a plurality.
[Footnote 51] Morrison v. Olson, 487 U.S. 654 (l988). The opinion by Chief Justice Rehnquist was joined by seven of the eight participating Justices. Only Justice Scalia dissented. In Mistretta v. United States, 488 U.S. 361, 390 -91 (1989), the Court, approving the placement of the Sentencing Commission in the judicial branch, denied that executive powers were diminished because of the historic judicial responsibility to determine what sentence to impose on a convicted offender. Earlier, in Young v. United States ex rel. Vuitton, 48l U.S. 787 (l987), the Court, in upholding the power of federal judges to appoint private counsel to prosecute contempt of court actions, rejected the assertion that the judiciary usurped executive power in appointing such counsel.
[Footnote 52] The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.
[Footnote 53] Id., 478 U.S., 732-733.
[Footnote 54] Id., 734.
[Footnote 55] Id., 462 U.S., 985-86.
[Footnote 56] Id., 462 U.S., 989.
[Footnote 57] Id., 478 U.S., 736, 750.
[Footnote 58] Id., 462 U.S., 953 n.16.
[Footnote 59] Id.
[Footnote 60] Pub. L. 95-52l, title VI, 92 Stat. l867, as amended by Pub. L. 97-409, 96 Stat. 2039, and Pub. L. l00-l9l, l0l Stat. l293, 28 U.S.C. Sec. Sec. 49, 59l et seq.
[Footnote 2 (1996 Supplement)] Dalton v. Specter, 511 U.S. 462 (1994).
[Footnote 3 (1996 Supplement)] Id. at 472.
[Footnote 4 (1996 Supplement)] See The Supreme Court, Leading Cases, 1993 Term, 108 Harv. L. Rev. 139, 300-10 (1994).
[Footnote 5 (1996 Supplement)] '' As a matter of constitutional logic, the executive branch must have some warrant, either statutory or constitutional, for its actions. The source of all federal governmental authority is the Constitution and, because the Constitution contemplates that Congress may delegate a measure of its power to officials in the executive branch, statutes. The principle of separation of powers is a direct consequence of this scheme. Absent statutory authorization, it is unlawful for the President to exercise the powers of the other branches because the Constitution does not vest those powers in the President. The absence of statutory authorization is not merely a statutory defect; it is a constitutional defect as well.'' Id. at 305-06 (footnote citations omitted).
[Footnote 62] As to the meaning of ''the fourth day of March,'' see Warren, Political Practice and the Constitution, 89 U. Pa. L. Rev. 1003 (1941).
[Footnote 63] E. Corwin, op. cit., n.44, 34-38, 331-339.