Annotation 17 - Article II

The President's Duty in Cases of Domestic Violence in the States

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

The President as Executor of the Law of Nations

Illustrative of the President's duty to discharge the responsibilities of the United States in international law with a view to avoiding difficulties with other governments was the action of President Wilson in closing the Marconi Wireless Station at Siasconset, Massachusetts, on the outbreak of the European War in 1914, the company having refused assurance that it would comply with naval censorship regulations. Justifying this drastic invasion of private rights, Attorney General Gregory said: ''The President of the United States is at the head of one of the three great coordinate departments of the Government. He is Commander in Chief of the Army and the Navy. . . . If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be endangered by action deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restrictions, he may act through such executive office or department as appears best adapted to effectuate the desired end. . . . I do not hesitate, in view of the extraordinary conditions existing, to advise that the President, through the Secretary of the Navy or any appropriate department, close down, or take charge of and operate, the plant . . . should he deem it necessary in securing obedience to his proclamation of neutrality.'' 678  


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

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

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

Congress and the President versus Foreign Expropriation .-- Congress has asserted itself in one area of protection of United States property abroad, making provision against uncompensated expropriation of property belonging to United States citizens and corporations. The problem of expropriation of foreign property and the compensation to be paid therefor remains an unsettled area of international law, of increasing importance because of the changes and unsettled conditions following World War II. 686 It has been the position of the Executive Branch that just compensation is owed all United States property owners dispossessed in foreign countries and the many pre-World War II disputes were carried on between the President and the Department of State and the nation involved. But commencing with the Marshall Plan in 1948, Congress has enacted programs of guaranties to American investors in specified foreign countries. 687 More relevant to discussion here is that Congress has attached to United States foreign assistance programs various amendments requiring the termination of assistance and imposing other economic inducements where uncompensated expropriations have been instituted. 688 And when the Supreme Court in 1964 applied the ''act of state'' doctrine so as not to examine the validity of a taking of property by a foreign government recognized by the United States but to defer to the decision of the foreign government, 689 Congress reacted by attaching another amendment to the foreign assistance act reversing the Court's application of the doctrine, except in certain circumstances, a reversal which was applied on remand of the case. 690  


To avert a nationwide strike of steel workers which he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country. 691 The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States. The Secretary issued the appropriate orders to steel executives. The President promptly reported his action to Congress, conceding Congress' power to supersede his order, but Congress did not do so, either then or a few days later when the President sent up a special message. 692 On suit by the steel companies, a federal district court enjoined the seizure, 693 and the Supreme Court brought the case up prior to decision by the court of appeals. 694 Six-to-three, the Court affirmed the district court order, each member of the majority, however, contributing an individual opinion as well as joining in some degree the opinion of the Court by Justice Black. 695 The holding and the multiple opinions represent a setback for the adherents of ''inher ent'' executive powers, 696 but they raise difficult conceptual and practical problems with regard to presidential powers.

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

The Doctrine Considered .--The pivotal proposition of the opinion of the Court is that, inasmuch as Congress could have directed the seizure of the steel mills, the President had no power to do so without prior congressional authorization. To this reasoning, not only the dissenters but Justice Clark would not concur and in fact stated baldly that the reasoning was contradicted by precedent, both judicial and presidential and congressional practice. One of the earliest pronouncements on presidential power in this area was that of Chief Justice Marshall in Little v. Barreme. 698 There, a United States vessel under orders from the President had seized a United States merchant ship bound from a French port allegedly carrying contraband material; Congress had, however, provided for seizure only of such vessels bound to French ports. 699 Said the Chief Justice: ''It is by no means clear that the president of the United States whose high duty it is to 'take care that the laws be faithfully executed,' and who is commander in chief of the armies and navies of the United States, might not, without any special authority for that purpose in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that [an act of Congress] gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seems to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.'' 700  

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

Justice Frankfurter's concurring opinion 704 listed statutory authorizations for seizures of industrial property, 18 in all of which all but the first were enacted between 1916 and 1951, and summaries of seizures of industrial plants and facilities by Presidents without definite statutory warrant, eight of which occurred during World War I, justified in the presidential orders as being done pursuant to ''the Constitution and laws'' generally, and eleven of which occurred in World War II. 705 The first such seizure in this period had been justified by then Attorney General Jackson as being based upon an ''aggregate'' of presidential powers stemming from his duty to see the laws faithfully executed, his commander-in- chiefship, and his general executive powers. 706 Chief Justice Vinson's dissent dwelt liberally upon this opinion, 707 which reliance drew a disclaimer from Justice Jackson, concurring. 708  

The dissent was also fortunate in that chief counsel for the steel companies was the eminent John W. Davis, who, as Solicitor General of the United States, had filed a brief in defense of Presidential action in 1914, which had taken precisely the view which the dissent now presented on this issue. 709 ''Ours,'' the brief read, ''is a self- sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395 ; In re Debs, 158 U.S. 564, 578 .) 'Its means are adequate to its ends' (McCulloch v. Maryland, 4 Wheat., 316 424), and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Government of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking powers may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him imme diately, and as such, also, he executes the laws and regulations adopted by Congress. He is the agent of the people of the United States, deriving all his powers from them and responsible directly to them. In no sense is he the agent of Congress. He obeys and executes the laws of Congress, but because Congress is enthroned in authority over him, not because the Constitution directs him to do so.

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

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

Justice Jackson attempted a schematic representation of presidential powers, which ''are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.'' Thus, there are essentially three possibilities. ''1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possess in his own right plus all that Congress can delegate. . . . 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . . 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.'' 714 The seizure in question was placed in the third category ''because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.'' Therefore, ''we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.'' 715 That holding was not possible.

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

Despite the opinion of the Court, therefore, it seems clear that four of the six Justices in the majority were more moved by the fact that the President had acted in a manner considered and rejected by Congress in a field in which Congress was empowered to establish the rules, rules the President is to see faithfully executed, than with the fact that the President's action was a form of ''lawmaking'' in a field committed to the province of Congress. The opinion of the Court, therefore, and its doctrinal implications must be considered with care, inasmuch as it is doubtful that the opinion does lay down a constitutional rule. Whatever the implications of the opinions of the individual Justices for the doctrine of ''inherent'' presidential powers--and they are significant--the implications for the area here under consideration are cloudy and have remained so from the time of the decision. 719  


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

''An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance.'

''It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.

. . .

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

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

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

Rare has been the opportunity for the Court to elucidate its opinion in Mississippi v. Johnson, and, in the Watergate tapes case, 724 it held the President amenable to subpoena to produce evidence for use in a criminal case without dealing, except obliquely, with its prior opinion. The President's counsel had argued the President was immune to judicial process, claiming ''that the independence of the Executive Branch within its own sphere . . . insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.'' 725 However, the Court held, ''neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.'' 726 The primary constitutional duty of the courts ''to do justice in criminal prosecutions'' was a critical counterbalance to the claim of presidential immunity and to accept the President's argument would disturb the separation-of-powers function of achieving ''a workable government'' as well as ''gravely impair the role of the courts under Art. III.'' 727  

Present throughout the Watergate crisis, and unresolved by it, was the question of the amenability of the President to criminal prosecution prior to conviction upon impeachment. 728 It was argued that the impeachment clause necessarily required indictment and trial in a criminal proceeding to follow a successful impeachment and that a President in any event was uniquely immune from indictment, and these arguments were advanced as one ground to deny enforcement of the subpoenas running to the President. 729 Assertion of the same argument by Vice President Agnew was controverted by the Government, through the Solicitor General, but, as to the President, it was argued that for a number of constitutional and practical reasons he was not subject to ordinary criminal process. 730  

Finally, most recently, the Court has definitively resolved one of the intertwined issues of presidential accountability. The President is absolutely immune in actions for civil damages for all acts within the ''outer perimeter'' of his official duties. 731 The Court's close decision was premised on the President's ''unique position in the constitutional scheme,'' that is, it was derived from the Court's inquiry of a ''kind of 'public policy' analysis'' of the ''policies and principles that may be considered implicit in the nature of the President's office in a system structured to achieve effective government under a constitutionally mandated separation of powers.'' 732 While the Constitution expressly afforded Members of Congress immunity in matters arising from ''speech or debate,'' and while it was silent with respect to presidential immunity, the Court nonetheless considered such immunity ''a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.'' 733 Although the Court relied in part upon its previous practice of finding immunity for officers, such as judges, as to whom the Constitution is silent, although a long common-law history exists, and in part upon historical evidence, which it admitted was fragmentary and ambiguous, 734 the Court's principal focus was upon the fact that the President was distinguishable from all other executive officials. He is charged with a long list of ''supervisory and policy responsibilities of utmost discretion and sensitivity,'' 735 and diversion of his energies by concerns with private lawsuits would ''raise unique risks to the effective functioning of government.'' 736 Moreover, the presidential privilege is rooted in the separation-of-powers doctrine, counseling courts to tread carefully before intruding. Some interests are important enough to require judicial action; ''merely private suit[s] for damages based on a President's official acts'' do not serve this ''broad public interest'' necessitating the courts to act. 737 Finally, qualified immunity would not adequately protect the President, because judicial inquiry into a functional analysis of his actions would bring with it the evil immunity was to prevent; absolute immunity was required. 738  

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

Different rules prevail when such an official is sued for a ''constitutional tort'' for wrongs allegedly in violation of our basic charter, 744 although the Court has hinted that in some ''sensitive'' areas officials acting in the ''outer perimeter'' of their duties may be accorded an absolute immunity from liability. 745 Jurisdiction to reach such officers for acts for which they can be held responsible must be under the general ''federal question'' jurisdictional statute, which, as recently amended, requires no jurisdictional amount. 746  


[Footnote 678] 30 Ops. Atty. Gen. 291 (1914).

[Footnote 679] 7 J. Moore, Digest of International Law (Washington: 1906), 346-354.

[Footnote 680] Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860).

[Footnote 681] Id., 112.

[Footnote 682] See United States Solicitor of the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces

[Footnote 686] Cf. Metzger, Property in International Law, 50 Va. L. Rev. 594 (1964); Vaughn, Finding the Law of Expropriation: Traditional v. Quantitative Research, 2 Texas Intl. L. Forum 189 (1966).

[Footnote 687] 62 Stat. 143 (1948), as amended, 22 U.S.C. Sec. 2191 et seq. See also 22 U.S.C. Sec. 1621 et seq.

[Footnote 688] 76 Stat. 260 (1962), 22 U.S.C. Sec. 2370(e)(1).

[Footnote 689] Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

[Footnote 690] 78 Stat. 1013 (1964), as amended, 22 U.S.C. Sec. 2370(e)(2), applied on remand in Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), affd. 383 F. 2d 166 (2d Cir., 1967), cert. den., 390 U.S. 956 (1968).

[Footnote 691] E.O. 10340, 17 Fed. Reg. 3139 (1952).

[Footnote 692] H. Doc. No. 422, 82d Congress, 2d sess. (1952), 98 Cong. Rec. 3912 (1952); H. Doc. No. 496, 82d Congress, 2d sess. (1952), 98 Cong. Rec. 6929 (1952).

[Footnote 693] 103 F. Supp. 569 (D.D.C. 1952).

[Footnote 694] The court of appeals had stayed the district court's injunction pending appeal. 197 F.2d 582 (D.C.Cir., 1952). The Supreme Court decision bringing the action up is at 343 U.S. 937 (1952). Justices Frankfurter and Burton dissented.

[Footnote 695] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In the majority with Justice Black were Justices Frankfurter, Douglas, Jackson, Burton, and Clark. Dissenting were Chief Justice Vinson and Justices Reed and Minton. For critical consideration of the case, see Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53 (1953); Roche, Executive Power and Domestic Emergency: The Quest for Prerogative, 5 West. Pol. Q. 592 (1952). For a comprehensive account, see M. Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (New York: 1977).

[Footnote 696] Indeed, the breadth of the Government's arguments in the district court may well have contributed to the defeat, despite the much more measured contentions set out in the Supreme Court. See A. Westin, The Anatomy of a Constitutional Law Case (New York: 1958), 56-65 (argument in district court).

[Footnote 697] Id., 343 U.S., 585-589.

[Footnote 698]   6 U.S. (2 Cr.) 170 (1804).

[Footnote 699] 1 Stat. 613 (1799).

[Footnote 700] Little v. Barreme, 6 U.S. (2 Cr.) 170, 177 -178 (1804).

[Footnote 701] 10 Annals of Cong. 596, 613-614 (1800). The argument was endorsed in Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893). The presence of a treaty, of which this provision was self-executing, is sufficient to distinguish this example from the steel seizure situation.

[Footnote 702] Cf. E. Corwin, The President's Control of Foreign Relations (New York: 1916), ch. 1.

[Footnote 703] Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 Colum. L. Rev. 53, 58-59 (1953).

[Footnote 704] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952).

[Footnote 705] Id., 611-613, 620.

[Footnote 706] 89 Cong. Rec. 3992 (1943).

[Footnote 707] Id., 343 U.S., 695-696 (dissenting opinion).

[Footnote 708] Thus, Justice Jackson noted of the earlier seizure, that ''[i]ts superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it cannot be regarded as even a precedent, much less an authority for the present seizure.'' Id., 648- 649 (concurring opinion). His opinion opens with the sentence: ''That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.'' Id., 634.

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

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

[Footnote 711] Id., 585-587.

[Footnote 712] Id., 597.

[Footnote 713] Id., 602.

[Footnote 714] Id., 635-638.

[Footnote 715] Id., 639, 640.

[Footnote 716] Id., 657.

[Footnote 717]   6 U.S. (2 Cr.) 170 (1804).

[Footnote 718] Id., 343 U.S., 662, 663.

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

[Footnote 720]   71 U.S. (4 Wall.) 475 (1867).

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

[Footnote 722] Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 484 -485 (1867) (argument of counsel).

[Footnote 723] Id., 499, 500-501. One must be aware that the case was decided in the context of congressional predominance following the Civil War. The Court's restraint was pronounced when it denied an effort to file a bill of injunction to enjoin enforcement of the same acts directed to cabinet officers. Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867). Before and since, however, the device to obtain review of the President's actions has been to bring suit against the subordinate officer charged with carrying out the President's wishes. Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Congress has not provided process against the President. In Franklin v. Massachusetts, 112 S.Ct. 2767 (1992), resolving a long-running dispute, the Court held that the President is not subject to the Administrative Procedure Act and his actions, therefore, are not reviewable in suits under the Act. Inasmuch as some agency action, the acts of the Secretary of Commerce in this case, is preliminary to presidential action, the agency action is not ''final'' for purposes of APA review. Constitutional claims would still be brought, however. See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).

[Footnote 724] United States v. Nixon, 418 U.S. 683 (1974).

[Footnote 725] Id., 706.

[Footnote 726] Ibid.

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

[Footnote 728] The impeachment clause, Article I, Sec. 3, cl. 7, provides that the party convicted upon impeachment shall nonetheless be liable to criminal proceedings. Morris in the Convention, 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven: rev. ed. 1937), 500, and Hamilton in The Federalist, Nos. 65, 69 (J. Cooke ed., 1961), 442, 463, asserted that criminal trial would follow a successful impeachment.

[Footnote 729] Brief for the Respondent, United States v. Nixon, 418 U.S. 683 (1974), 95-122; Nixon v. Sirica, 487 F.2d 700, 756-758 (D.C.Cir., 1973) (en banc) (Judge MacKinnon dissenting). The Court had accepted the President's petition to review the propriety of the grand jury's naming him as an unindicted coconspirator, but it dismissed that petition without reaching the question. United States v. Nixon, supra, 687 n. 2.

[Footnote 730] Memorandum for the United States, Application of Spiro T. Agnew, Civil No. 73-965 (D.Md., filed October 5, 1973).

[Footnote 731] Nixon v. Fitzgerald, 457 U.S. 731 (1982).

[Footnote 732] Id., 748.

[Footnote 733] Id., 749.

[Footnote 734] Id., 750-752 n. 31.

[Footnote 735] Id., 750.

[Footnote 736] Id., 751.

[Footnote 737] Id., 754.

[Footnote 738] Id., 755-757. Justices White, Brennan, Marshall, and Blackmun dissented. The Court reserved decision whether Congress could expressly create a damages action against the President and abrogate the immunity, id., 748-749 n. 27, thus appearing to disclaim that the decision is mandated by the Constitution; Chief Justice Burger disagreed with the implication of this footnote, id., 763-764 n. 7 (concurring opinion), and the dissenters noted their agreement on this point with the Chief Justice. Id., 770 & n. 4.

[Footnote 739] E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (suit to enjoin Secretary of Commerce to return steel mills seized on President's order); Dames & Moore v. Regan, 453 U.S. 654 (1981) (suit against Secretary of Treasury to nullify presidential orders on Iranian assets). See also Noble v. Union River Logging Railroad, 147 U.S. 165 (1893); Philadelphia Co. v. Stimson, 223 U.S. 605 (1912).

[Footnote 740] E.g., Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) (suit against Secretary of State to compel delivery of commissions of office); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838) (suit against Postmaster General to compel payment of money owed under act of Congress); Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840) (suit to compel Secretary of Navy to pay a pension).

[Footnote 741] This was originally on the theory that the Supreme Court of the District of Columbia had inherited, via the common law of Maryland, the jurisdiction of the King's Bench ''over inferior jurisdictions and officers.'' Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614 , 620-621 (1838). Congress has now authorized federal district courts outside the District of Columbia also to entertain such suits. 76 Stat. 744 (1962), 28 U.S.C. Sec. 1361.

[Footnote 742] E.g., Little v. Barreme, 6 U.S. (2 Cr.) 170 (1804); Bates v. Clark, 95 U.S. 204 (1877); United States v. Lee, 106 U.S. 196 (1882); Virginia Coupon Cases, 114 U.S. 269 (1885); Belknap v. Schild, 161 U.S. 10 (1896).

[Footnote 743] Spalding v. Vilas, 161 U.S. 483 (1896); Barr v. Mateo, 360 U.S. 564 (1959). See Westfall v. Erwin, 484 U.S. 292 (1988) (action must be discretionary in nature as well as being within the scope of employment, before federal official is entitled to absolute immunity). Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized the Attorney General to certify that an employee was acting within the scope of his office or employment at the time of the incident out of which a suit arose; upon certification, the employee is dismissed from the action, and the United States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which means that sometimes the action must be dismissed against the Government because the FTCA has not waived sovereign immunity. Cognizant of the temptation set before the Government to immunize both itself and its employee, the Court in Gutierrez de Martinez v. Lamagno, 115 S. Ct. 2227 (1995), held that the Attorney General's certification is subject to judicial review.

[Footnote 744] An implied cause of action against officers accused of constitutional violations was recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Butz v. Economou, 438 U.S. 478 (1978), a Bivens action, the Court distinguished between common-law torts and constitutional torts and denied high federal officials, including cabinet secretaries, absolute immunity, in favor of the qualified immunity previously accorded high state officials under 42 U.S.C. Sec. 1983. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court denied presidential aides derivative absolute presidential immunity, but it modified the rules of qualified immunity, making it more difficult to hold such aides, other federal officials, and indeed state and local officials, liable for constitutional torts. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court extended qualified immunity to the Attorney General for authorizing a warrantless wiretap in a case involving domestic national security. Although the Court later held such warrantless wiretaps violated the Fourth Amendment, at the time of the Attorney General's authorization this interpretation was not ''clearly established,'' and the Harlow immunity protected officials exercising discretion on such open questions. See also Anderson v. Creighton, 483 U.S. 635 (1987) (in an exceedingly opaque opinion, the Court extended similar qualified immunity to FBI agents who conducted a warrantless search).

[Footnote 745] Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).

[Footnote 746] See 28 U.S.C. Sec. 1331. On deleting the jurisdictional amount, see P.L. 94-574, 90 Stat. 2721 (1976), and P.L. 96-486, 94 Stat. 2369 (1980). If such suits are brought in state courts, they can be removed to federal district courts. 28 U.S.C. Sec. 1442(a).

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