American University Law Review
Volume 59 | Issue 2
Article 1
2009
The Limits of Executive Power
Robert J. Reinstein
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Reinstein, Robert J. “The Limits of Executive Power.” American University Law Review 59, no.2 (December 2009): 259-337
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The Limits of Executive Power
Abstract
Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars
and had been adopted by the Supreme Court as the governing framework for evaluating presidential power.
But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions
as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers,
nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and
override. I apply novel originalist methodologies to answer those unexamined questions, with important
consequences to several current theories and cases concerning presidential power. The construction of the
presidency and the allocation of legislative and executive powers can be understood only by an examination of
the historical experiences that influenced the Framers. Prominent among these were the preceding two
centuries of constitutional developments in England which critically influenced the allocation of executive
and legislative power in the Constitution. The central lesson of these historical experiences was that
proscriptive legislative restraints on executive power were necessary but not sufficient to prevent autocracy.
any of the English proscriptions on the exercise of executive power were included in our Constitution, but
there was also a massive transfer of previously held executive power to the legislature. Most of the prerogatives
that had been exercised by the King were vested completely in Congress, prohibited to the President, or
omitted altogether from the Constitution. Of the small number delegated to the Executive, only one was the
same as its royal counterpart; the others were more limited or structurally shared with the Legislative Branch.
I examine this history in detail and apply its underlying principles to develop a general theory of presidential
power. In lieu of creative but ultimately inconclusive arguments over indefinite powers that are said to be
“executive” in nature, implied powers should be tied to, and derived from, the powers expressly vested in the
President in Article II. I refute the propositions that the Vesting Clause is a residual source of plenary
executive power and that there is a presidential “completion” power. I apply and elaborate on these principles
in the context of the President’s two most important implied powers - executing the laws and developing and
implementing foreign policy. The President has broad discretion in choosing how to exercise these powers,
but they are not plenary in nature. They are subject to three basic limitations: (1) the President may not,
without congressional authorization, use these powers to change domestic law or create or alter existing legal
obligations; (2) these powers are subject to regulation by Congress; and (3) in the event of a conflict between
the exercise of these powers and congressional legislation, the latter prevails. Finally, I argue that these limits
on presidential power have continuing validity despite the enormous changes in the country since these
principles were established. We are now in much the same situation as England in the 18th century - the real
power of the Executive is much greater than its nominal legal power. Although the Framers viewed the
President as a necessary check on an otherwise dominant Congress, the present reality is now the reverse. The
Executive has become the most powerful branch of government. There is no reason to adopt legal theories
that would further enhance executive power.
Keywords
Separation of Powers, Presidency, Presidential power, Executive power, Prerogative, English constitution,
Originalism
This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol59/iss2/1
ARTICLES
THE LIMITS OF EXECUTIVE POWER
*
ROBERT J. REINSTEIN
TABLE OF CONTENTS
Introduction ........................................................................................ 260
I.
The Restructuring of Executive and Legislative Power .......... 265
A. The Federalist on the Allocation of Royal Prerogatives ..... 265
B. Another Look at the Royal Prerogatives and
Presidential Powers............................................................ 271
1. Legislation and taxation .............................................. 271
a. Proclamations and impositions ............................. 271
b. Assent to legislation ............................................... 277
2. Execution of the laws ................................................... 278
a. The suspending and dispensing powers ............... 278
b. Proscriptions on executive power ......................... 281
c. The courts and judicial independence................. 282
d. The singular pardoning power ............................. 284
3. Control of the legislature ............................................ 285
a. Direct control......................................................... 285
b. The theory of the balanced constitution .............. 286
c. Executive dominance ............................................ 287
4. Foreign affairs and the war powers ............................. 295
a. Diplomatic relations .............................................. 295
b. The military and war.............................................. 299
5. Commerce .................................................................... 304
6. An overview .................................................................. 304
* Clifford Scott Green Professor of Law, Temple University Beasley School of Law.
My grateful appreciation to Jane Baron, Craig Green, Richard Greenstein, Duncan
Hollis, Mark Rahdert, and Stephen Vladeck for reviewing drafts of this Article and
for providing helpful criticisms and suggestions. I am particularly indebted to Scott
Sowerby of Harvard University, an expert on seventeenth-century English history, for
reviewing the portions of this Article dealing with constitutional developments in
that period.
259
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II.
Theories of Presidential Power ................................................ 307
A. The Vesting Clause ............................................................ 307
B. A Presidential “Completion Power” ................................. 309
C. Implied Presidential Powers ............................................. 312
III. The Limits of Implied Executive Powers................................. 315
A. Enforcement of the Laws .................................................. 315
B. Foreign Affairs ................................................................... 323
Conclusion .......................................................................................... 334
INTRODUCTION
Inconclusive debates over the scope of presidential power have
erupted regularly throughout American history.
The Bush
administration’s claims of unilateral executive power were extremely
1
assertive, but they were not unprecedented. These claims may be in
remission with the advent of a new administration. However, their
intellectual seeds remain, and government officials as well as judges
will continue to struggle with these perennial issues. It is time to
revisit the proper scope of presidential power.
The prevailing doctrine of presidential power is contained in
Justice Jackson’s celebrated concurring opinion in Youngstown Sheet
2
& Tube Co. v. Sawyer (Steel Seizure Case). Jackson concluded from the
mixing and sharing of legislative and executive powers in the
Constitution that “[p]residential powers are not fixed but fluctuate,
depending upon their disjunction or conjunction with those of
3
Congress.” He then offered his famous tripartite framework for
analyzing the scope of presidential power: (1) when the President’s
actions are expressly or impliedly authorized by Congress, his
authority is “at its maximum;” (2) when the President acts and
1. To take two examples, President Franklin Roosevelt conducted a secret
domestic surveillance program in violation of federal law and also established a
military commission to try enemy combatants for war crimes. See generally Jack
Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference
Sixty Years Makes, 19 CONST. COMMENT. 261 (2002); Neal Katyal & Richard Caplan,
The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR
Precedent, 60 STAN. L. REV. 1023 (2008).
2. 343 U.S. 579, 634 (1952). Jackson’s framework has been adopted by the
Supreme Court, first in Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981), and
very recently in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), id. at 638–39
(Kennedy, J., concurring), and Medellín v. Texas, 128 S. Ct. 1346, 1367–68 (2008).
3. Steel Seizure Case, 343 U.S. at 635 (Jackson, J., concurring). Although the
Constitution establishes separate legislative, executive, and judicial branches, it
blends and mixes powers across the branches. Familiar examples are the President’s
role in legislation (through the qualified veto) and Congress’s roles in executive and
judicial appointments and treaties (through prior Senatorial approval). See THE
FEDERALIST No. 47, at 234–36 (James Madison) (Terrence Ball ed., 2003).
2009]
THE LIMITS OF EXECUTIVE POWER
261
Congress is silent, “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;”
and (3) when the President acts contrary to the express or implied
4
will of Congress, “his power is at its lowest ebb.”
Despite its important insights and strengths, including its literary
quality, Jackson’s opinion presents a basic problem—it raises
extremely important questions about presidential power in the
second and third categories of the framework, but it does not really
5
answer those questions. It fails to examine, much less justify, the
existence or scope of implied presidential powers, and it does not
meaningfully explain the extent to which those powers are subject to
6
congressional regulation and override.
4. Steel Seizure Case, 343 U.S. at 635–38 (Jackson, J., concurring).
5. The first category also presents unanswered questions, but I do not deal with
them in this Article. Although congressional authorization almost always validates
presidential action, there can be exceptions. See Clinton v. City of New York,
524 U.S. 417 (1998) (holding unconstitutional the Line Item Veto Act even though it
was supported by both Congress and the President).
6. Presidential actions can wind up in the first and third categories of Jackson’s
framework—and hence be presumptively valid or invalid—according to the “implied
will” of Congress. Since this “will” depends on the Court’s interpretation of laws that
contain the very gap through which the President acted, Jackson’s framework has
been criticized as an “empty vessel” into which litigants and judges pour their desired
results. Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice,
120 HARV. L. REV. 65, 99 (2006).
In the Steel Seizure Case, no statute explicitly prohibited Truman’s action in seizing
the steel mills. 343 U.S. at 702 (Vinson, C.J., dissenting). Jackson and three other
concurring Justices determined that President Truman was acting contrary to law
because (a) the relevant statutes covering the field did not grant him the authority
that he exercised, and (b) a proposed amendment to one of the statutes, which
would have provided that authority was not enacted. Id. at 657, 660 (Burton, J.,
concurring); id. at 599–603 (Frankfurter, J., concurring); id. at 639–40 (Jackson, J.,
concurring); id. at 665–66 (Clark, J., concurring). But congressional silence and
failure to act do not necessarily amount to disapproval. The case could have
plausibly been seen as one in which the President acted “in absence of either a
congressional grant or denial of authority” (Jackson’s second category), id. at 637,
which is what the three dissenting Justices argued, id. at 701–03 (Vinson, C.J., joined
by Reed & Minton, JJ.).
This same indeterminacy is present in the three Supreme Court decisions that
adopted the Jackson framework as governing doctrine: Dames & Moore, Hamdan, and
Medellín. Each has been criticized for having drawn unsupportable inferences from
congressional silence or statutory ambiguity in either implying congressional
approval or disapproval of the President’s actions. For criticisms of Dames & Moore,
see generally William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference:
Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan,
96 GEO. L.J. 1083, 1164–66 (2008), and Lee R. Marks & John C. Grabow, The
President’s Foreign Economic Powers after Dames & Moore v. Regan: Legislation by
Acquiescence, 68 CORNELL L. REV. 68 (1982). An excellent critical analysis of Hamdan
is provided in Craig Green, Wiley Rutledge, Executive Detention and Judicial Conscience at
War, 84 WASH. U. L.R. 99, 160–68 (2006). The portion of the Medellín decision
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With respect to the second category, Jackson suggested that
implied presidential power may exist in a “twilight zone” of
congressional inaction or acquiescence, and this theory appeared to
7
command a majority of the Court.
But Jackson rejected the
8
argument that the Vesting Clause is an independent source of
presidential power, and he denied the existence of inherent
9
executive power. If that stance is correct, what authorizes implied
presidential powers, and on what basis can their existence and
breadth be determined? And if the President does have implied
powers, can those powers have the domestic effect of creating or
altering existing legal obligations?
As to the third category, Jackson asserted that in the case of an
actual conflict between the exercise of congressional and presidential
power, there is a strong presumption in favor of Congress:
10
presidential power is said to be at its “lowest ebb.” But why should
this be? A majority of the Supreme Court might have upheld
President Truman’s power to seize the steel mills in the absence of
legislation. Why should the President lose this power just because
Congress passed conflicting legislation?
This Article proposes a general theory of the scope and limits of
presidential power and answers the questions raised in the Steel Seizure
relating to presidential power is criticized by Ingrid Wuerth, Medellín: The New, New
Formalism?, 13 LEWIS & CLARK L. REV. 1, 5–8 (2009).
These criticisms do not necessarily indict Jackson’s framework itself. Statutory
construction frequently involves ambiguous laws in which congressional intent must
be divined, often from inadequate sources. Of course this means that Jackson’s
framework can be manipulated by litigants and judges to achieve desired results, but
I would like to know what doctrine of constitutional law can avoid this fate.
For example, the Supreme Court’s tripartite equal protection framework (rational
basis, intermediate, and strict scrutiny) can be just as malleable, if not more so.
Nevertheless, because Jackson’s second category lacks a principled content, there
may well be an inherent centripetal force in Jackson’s framework inducing litigants
and judges to push cases of implied presidential powers into the virtually outcomedeterminative first or third categories.
7. See Steel Seizure Case, 343 U.S. at 610–11 (Frankfurter, J., concurring)
(suggesting that “a systematic, unbroken, executive practice, long pursued to the
knowledge of the Congress, and never before questioned . . . may be treated as a
gloss on ‘executive Power’ vested in the President by § 1 of Art. II”); id. at 659–60
(Burton, J., concurring) (suggesting that the President might have the power to act
in an “emergency . . . in which Congress takes no action and outlines no
governmental policy”); id. at 662 (Clark, J., concurring) (stating that “the
Constitution does grant to the President extensive authority in times of grave and
imperative national emergency”); id. at 683 (Vinson, C.J., joined by Reed & Minton,
JJ., dissenting) (same).
8. U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a
President of the United States.”).
9. Steel Seizure Case, 343 U.S. at 640–41 (Jackson, J., concurring).
10. Id. at 637.
2009]
THE LIMITS OF EXECUTIVE POWER
263
Case. It applies historical and structural methodologies to answer
those unexamined questions, assessing important consequences to
several current theories and cases concerning presidential power.
Part I of this Article lays the groundwork for a theory of
presidential power that is founded upon the structural allocations of
power in Articles I and II of the Constitution and the historical
reasons for those allocations. The construction of the presidency
owes much less to political theory or to a reflexive reaction to George
III than to two centuries of historical experiences in Great Britain
and America that shaped the Framers’ views on executive and
legislative powers.
A detailed historical analysis of the royal
prerogatives and how they were used to establish dominance over
Parliament is necessary to understand how and why the allocations of
power in Articles I and II constitute a massive transfer of previously
held executive power to the legislative branch.
Part II examines prevailing theories of constitutional executive
power using the historical background and its underlying principles
to show the weaknesses of those theories and to support an alternate,
more plausible general theory of presidential power. First, in lieu of
creative but ultimately inconclusive arguments over indefinite powers
that are said to be “executive” in nature, implied powers should be
tied to the powers expressly vested in the President by Article II.
Thus, the implied powers of the President are few in number, but
important. The power to enforce the laws is necessarily implied from
the President’s duty to take care that the laws should be faithfully
executed. A presidential power over foreign affairs can be implied
from the enumerated powers to make treaties and to receive and
appoint ambassadors and other public ministers. The President has
broad discretion in choosing how to exercise these implied powers.
Second, these implied powers are not plenary in nature. They are
subject to three basic limitations: (1) the President may not, without
congressional authorization, use these powers to change domestic law
or to create or alter existing legal obligations; (2) these powers are
subject to regulation by Congress; and (3) in the event of a conflict
between the exercise of these powers and congressional legislation,
the latter prevails.
Each of these principles follows from the historical limits of
prerogative power, the decision to make express presidential powers
subject to legislative constraint, and the fundamental theorem that
Article II powers cannot be greater than the prerogatives legally
exercised by the King.
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These principles are contrary to theories of presidential power
advanced by notable scholars. This Article rejects the position that
the Vesting Clause is a residual source of plenary presidential powers
11
beyond those enumerated in Article II. The extent to which the
Constitution limits and constrains executive power cannot be
reconciled with the theory that the Vesting Clause provides the
President with plenary non-delegated powers.
This Article also rejects the proposition that there is a presidential
“completion power,” a theory that was advanced by Chief Justice
Vinson in his Steel Seizure Case dissent and recently by Jack Goldsmith
12
and John F. Manning.
A presidential completion power is the
modern equivalent of a royal prerogative that was asserted and
discredited 400 years ago—that the King could, by proclamation and
without legislative authorization, change domestic law by prescribing
means that he deemed necessary to make a statutory scheme more
effective.
Part III addresses the limits on the President’s implied powers.
This Part explains and justifies these limiting principles in greater
detail by applying them to presidential powers over law enforcement
and foreign affairs. The President has broad authority to set
priorities for law enforcement, establish rules by which ambiguous
statutes should be enforced, and supervise his subordinates in the
executive branch. However, contrary to the views of presidential
13
essentialists led by Justice Scalia, the President’s authority is subject
11. Important works asserting that the Vesting Clause is a source of residual
plenary executive power include: MICHAEL D. RAMSEY, THE CONSTITUTION’S TEXT IN
FOREIGN AFFAIRS (2007); Steven G. Calabresi & Kevin H. Rhodes, The Structural
Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992);
Saikrishna B. Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian
Executive: A Defense, 89 MINN. L. REV. 1591 (2005); Michael D. Ramsey, Executive
Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133 (1998) [hereinafter Ramsey,
Executive Agreements]; Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV.
849 (1989). But see David Gray Adler, George Bush and the Abuse of History: The
Constitution and Presidential Power in Foreign Affairs, 12 UCLA J. INT’L L. & FOREIGN AFF.
75 (2007); Arthur Bestor, Separation of Powers in the Domain of Foreign Affairs, 5 SETON
HALL L. REV. 528 (1974); Curtis A. Bradley & Martin S. Flaherty, Executive Power
Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004); Henry P. Monaghan,
The Protective Power of the Presidency, 93 COLUM. L. REV. 1 (1993).
12. See Steel Seizure Case, 343 U.S. at 667 (Vinson, C.J., dissenting); Jack Goldsmith
& John F. Manning, The President’s Completion Power, 115 YALE L.J. 2280, 2282 (2006).
13. See Morrison v. Olson, 487 U.S. 654, 704 (1988) (Scalia, J., dissenting)
(asserting that the Vesting Clause gives “[not] some of the executive power, but all of
the executive power” to the President). See generally STEVEN G. CALABRESI &
CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE (2008) (arguing for plenary
presidential power based on the consistent history of assertions of that authority by
Presidents); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to
2009]
THE LIMITS OF EXECUTIVE POWER
265
to congressional regulation and override. With respect to foreign
affairs, the President may establish and implement the nation’s
foreign policy and effectuate that policy through a broad range of
methods, including executive agreements with other countries.
But presidential foreign policy decisions, including executive
agreements, may be overridden by statutes, and they may not, without
congressional authorization, change domestic law or create or alter
legal obligations.
The Conclusion of this Article asserts that these original limits on
presidential power have continuing validity despite—and perhaps
because of—the vast changes in the nation since its founding. We are
now in much the same situation as England in the eighteenth
century—the real power of the Executive is much greater than its
nominal legal power. The executive branch has become the most
powerful branch of government. Although the Framers viewed the
President as a necessary check on an otherwise dominant Congress,
the present reality is now the reverse. There is no reason to adopt
legal theories that would further enhance executive power.
I.
THE RESTRUCTURING OF EXECUTIVE AND LEGISLATIVE POWER
A. The Federalist on the Allocation of Royal Prerogatives
The Federalist attempted to assure Americans that the President
would not be a potential king. Alexander Hamilton wrote the papers
14
that deal with the presidency, and his premise was that the royal
prerogatives provided the benchmark by which to measure the extent
of, and to minimize, presidential power. This was the most extensive
and important elaboration of the presidency in the ratification
period and is therefore an appropriate starting point for examining
the scope of executive power. Unfortunately, it is not the ending
point because Hamilton’s analysis is not complete and is in some
respects inaccurate.
Hamilton introduced his discussion of the presidency with the
disclaimer that “[t]here is hardly any part of the system which could
have been attended with greater difficulty in the arrangement of
15
it . . . .” The problem, of course, was that there was almost universal
Execute the Laws, 104 YALE L.J. 541, 570–79 (1994) (arguing that the Constitution gives
the President the plenary power to control the execution of federal law).
14. See generally THE FEDERALIST Nos. 67–77 (Alexander Hamilton), supra note 3,
at 327–76.
15. THE FEDERALIST No. 67 (Alexander Hamilton), supra note 3, at 327.
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opposition to an executive who would possess the powers of King
George III. The grievances in the Declaration of Independence read
like a catalogue of abuses by the King of his royal prerogatives, and
the fear of a strong executive with such concentrated power was still
16
prevalent in 1787. At the same time, the Framers understood the
necessity of having an executive with more power than was granted to
any executive under the Confederacy. The Articles of Confederation
did not provide for an executive branch, and each state constitution
made its governor “a very pale reflection indeed of his regal
17
ancestor.” Most of the delegates to the Constitutional Convention
were convinced that this system did not work and actually
endangered the Republic. Indeed, the delegates had little choice but
to create a strong executive branch once they decided to vest
Congress with enormous powers that would operate directly on
18
individuals.
Since reliance on state enforcement of federal law
seemed out of the question, this meant that strong executive and
judicial branches were needed to enforce federal law. The “greater
19
difficulty” was finding an acceptable intermediate position between
the King and the state governors.
The proposed Article II was a predictable lightning rod for the
20
opponents of ratification. Their hostility reflected fear that Article
II could in fact lead to an elected king with many of the hated royal
prerogatives. The Anti-Federalists combined this theme with a
variation that the President and Senate could unite in their joint
exercise of the appointments and treaty powers to produce
aristocratic rule, similar to the union of the King and the House of
21
Lords.
16. 2 BERNARD SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED
STATES 1 (1963).
17. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776–1787,
at 136 (1969). Only three state governors served terms lasting longer than one year;
only one state (Massachusetts) gave its governor a conditional veto power over
legislation; and most of the traditional executive power was in the legislatures.
FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE
CONSTITUTION 86–88 (1985). In addition, most governors were elected by their
legislatures and shared power with Executive Councils. WOOD, supra, at 137–39.
18. According to Madison, the delegates’ first major decision was that federal law
would operate directly on individuals. Letter from James Madison to Thomas
Jefferson (Nov. 1, 1787), in 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION 98–99 (Merrill Jensen ed., 1976) [hereinafter DOCUMENTARY
HISTORY].
19. THE FEDERALIST No. 67 (Alexander Hamilton), supra note 3, at 327.
20. WOOD, supra note 17, at 519–23.
21. See William Findley, Remarks at the Pennsylvania Convention (Dec. 7, 1787),
in 2 DOCUMENTARY HISTORY, supra note 18, at 512–13 (predicting that the President
and Senate will combine to make a monarchy); Benjamin Gale, Remarks at the
2009]
THE LIMITS OF EXECUTIVE POWER
267
The Anti-Federalists had a point. Unlike the governors, but like
the King, the President alone was vested with the executive power
and was not required to share that power with, or be constrained by,
an executive council; and the enumerated executive powers appeared
to include the royal prerogatives of being the Commander-in-Chief of
the armed forces and the militias, having a veto over legislation,
appointing executive and judicial officers, granting reprieves and
pardons, making treaties, and sending and receiving ambassadors
22
and other public ministers.
Hamilton’s first response to the Anti-Federalists concerns about
executive power was that the President would be elected, would be
limited to a fixed term of service, and would be subject to
23
impeachment and removal by Congress. But this was not a fully
satisfactory answer. An elected king could be a source of tyranny no
less than a hereditary one. The President’s four-year term was longer
than the term of any state governor and he could be re-elected for
the duration of his life. Moreover, the remedy of impeachment,
which was borrowed from England, had proven ineffective in that
24
country.
Hamilton’s principal argument was that the powers vested in the
President were much less than the prerogatives held by the King.
Hamilton used Blackstone’s Commentaries as his guide to royal
25
prerogative power.
Blackstone had emphasized that the King’s
Connecticut Convention (Nov. 12, 1787), in 3 DOCUMENTARY HISTORY, supra note 18,
at 426 (predicting that the country will have an elected king, which is worse than a
hereditary king); Letter from Hampden to the Pittsburgh Gazette (Feb. 16, 1788),
in 2 DOCUMENTARY HISTORY, supra note 18, at 666–67 (arguing that the President and
Senate can combine to create a hereditary monarchy); Patrick Henry, Remarks at the
Virginia Ratification Convention (June 5, 1788), in 9 DOCUMENTARY HISTORY, supra
note 18, at 963–64 (asserting that the President might easily become king); James
Lincoln, Remarks at the South Carolina Convention (Jan. 18, 1788), in 4 THE
DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE FEDERAL
CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN
1787, at 312–14 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter DEBATES] (asserting
that the President can become monarch for life); George Mason, Remarks at the
Virginia Ratification Convention (June 17, 1788), in 10 DOCUMENTARY HISTORY, supra
note 18, at 1365–66, 1378–79, 1390 (describing the President as an elective
monarch); Letter from an Officer of the Late Continental Army to the Independent
Gazetteer (Pa.) (Nov. 6, 1787), in 2 DOCUMENTARY HISTORY, supra note 18, at 212
(same); John Pringle, Remarks at the South Carolina Convention (Jan. 16, 1788),
in 4 DEBATES, supra, at 268–69 (complaining about the dangers that may result from
the President and Senate combining to make treaties).
22. WOOD, supra note 17, at 521–23.
23. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 335.
24. See infra notes 172, 218, 263, 278 and accompanying text.
25. WILLIAM BLACKSTONE, 1 COMMENTARIES. Blackstone’s seminal work was
accepted in America as the preeminent treatise on English law. His first volume,
concerning public law, was published in 1765 and was long considered authoritative
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prerogatives were not indefinite but were limited “by bounds so
26
certain and notorious” in order to prevent abuses of power. Such
limits were particularly necessary because one of the prerogatives was
the absolute veto over legislation, which effectively meant that
Parliament could not abridge any of the King’s prerogatives without
27
his consent.
28
Blackstone described each of the then-existing royal prerogatives,
and Hamilton compared the powers delegated to the President with
29
Blackstone’s enumeration. The result of this comparison was that
only one of the powers given to the President was the same as those
held by the King—that he could receive foreign ambassadors and
30
public ministers.
As for the rest, Hamilton summarized the
differences as follows:
The one [the President] would have a qualified negative [veto]
upon the acts of the legislative body: The other [the King] has an
absolute negative. The one would have a right to command the
military and naval forces of the nation: The other in addition to
this right, possesses that of declaring war, and of raising and
regulating fleets and armies by his own authority. The one would
have a concurrent power with a branch of the Legislature in the
in both England and America. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION
POWERS 112 (1998). There are a number of printings and editions of the early
publications of the Commentaries, and they contain different paginations and, in some
instances, different language. This Article cites to the starred version (rather than to
the 1979 facsimile of the first edition printed by the University of Chicago Press),
because the starred version was used and relied upon by the founding generation in
America, including Hamilton who cited the starred version in his discussion of the
Presidency. See THE FEDERALIST NO. 69, supra note 3, at 337 note a, 338 note b (citing
1 BLACKSTONE, supra at *262, *257); see also, e.g., Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163, 165, 167 (1803) (Marshall, C.J.) (citing 3 BLACKSTONE, supra, at
*23, *109, *255, *110); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 437, 442 (1793)
(Iredell, J.) (citing 1 BLACKSTONE, supra, at *243, and 3 id. at *256); 2 U.S. at 458, 462
(Wilson, J.) (citing 1 BLACKSTONE, supra, at *241–42, *46–52, *155, *160–62).
See generally 1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF
REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE
UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA (St. George Tucker ed.,
Philadelphia, Birch & Small 1803) [hereinafter TUCKER’S BLACKSTONE] (reproducing
the entire starred version).
26. See 1 BLACKSTONE, supra note 25, at *237. Blackstone called these boundaries
“principal bulwarks of civil liberty, or (in other words) of the British constitution,”
and explained that by confining the prerogatives to clear bounds, “it is impossible
[the King] should either mistake or legally exceed them without the consent of the
people.” Id. at *141.
27. 1 id. at *154–55; see, e.g., FREDERIC MAITLAND, CONSTITUTIONAL HISTORY OF
ENGLAND 282 (1909) (stressing that the King’s assent was necessary for the enactment
of all statutes, including those that encroached on his prerogatives).
28. 1 BLACKSTONE, supra note 25, at *144–46, *250–79.
29. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 335–40.
30. Id. at 339.
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269
formation of treaties: The other is the sole possessor of the power of
making treaties. The one would have a like concurrent authority in
appointing to offices: The other is the sole author of all
appointments. . . . The one can prescribe no rules concerning the
commerce or currency of the nation: The other is in several
respects the arbiter of commerce . . . . What answer shall we give to
those who would persuade us that things so unlike resemble each
31
other?
Hamilton’s analysis certainly supports the position that presidential
power is limited and narrowly defined. This is consistent with
Madison’s observation that “the executive magistracy is carefully
limited both in the extent and duration of its power,” while
Congress’s powers are “at once more extensive and less susceptible of
32
precise limits.” But Hamilton’s analysis has also been used to argue
for an opposite doctrine—that the Constitution vests the entire
“executive power” in the President minus the limitations on the
33
prerogatives in Article II and those that were delegated to Congress.
The President might still have plenary constitutional powers over
matters such as enforcing the law and conducting foreign policy,
even though these powers are not enumerated in Article II.
That presidential powers are limited in scope seems a more
convincing conclusion from Hamilton’s analysis, but ambiguity exists
because his comparisons of the Article II powers with the King’s
prerogatives are not complete or fully accurate. Blackstone’s
discussion of the royal prerogatives was the “only readily available
34
account” and is substantially correct, but it is more of a sketch than a
35
detailed analysis. For example, while Blackstone adverted later in
his treatise to the numerous statutes that proscriptively limited the
36
exercise of some prerogatives and eliminated others, he did not
31. Id. at 340–41.
32. THE FEDERALIST No. 48 (James Madison), supra note 3, at 241–42.
33. Hamilton himself would make this argument five years later when, writing as
Pacificus, he defended President Washington’s Neutrality Proclamation. ALEXANDER
HAMILTON AND JAMES MADISON, THE PACIFICUS-HELVIDIUS DEBATES OF 1793–1794:
TOWARD THE COMPLETION OF THE AMERICAN FOUNDING 12–13 (Morton J. Frisch ed.,
2007) [hereinafter PACIFICUS-HELVIDIUS DEBATES]; see also sources cited supra note 11
(listing competing scholarly works regarding the executive power and the Vesting
Clause).
34. MCDONALD, supra note 17, at 247.
35. 10 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 340–41 (A.L. Goodhart
& H.G. Hanbury eds., Little, Brown & Co. 1938).
36. 1 BLACKSTONE, supra note 25, at *334. These statutes include the Petition of
Right of 1628, the Habeas Corpus Act of 1679, the English Bill of Rights of 1689, and
the Act of Settlement of 1701, which, together with the Magna Carta, form “the Legal
Constitutional Code” of England. THOMAS PITT TASWELL-LANGMEAD, ENGLISH
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explain how these laws affected the legal scope of prerogative powers.
More significantly, Blackstone further made the provocative assertion
that the King’s real power is much greater than his nominal legal
power, because whatever was lost in the statutory proscriptions was
more than counterbalanced by the Hanoverian Kings’ effective use of
37
their prerogatives to influence Parliament.
Hamilton basically
ignores this portion of Blackstone’s discussion in his analyses of the
royal prerogatives.
Hamilton was a lawyer trained in English law, as were another
thirty-three of the fifty-five delegates to the Constitutional
38
Convention.
The Federalist combines acute political insights with
advocacy, and Hamilton had a clear political agenda—to convince
the public that fears of an overly powerful President were misguided.
In disregarding the statutory limitations on the royal prerogatives,
Hamilton was able to exaggerate the King’s legal powers and thereby
relatively diminish the President’s powers. Likewise, it was certainly
39
prudent for Hamilton to disregard, except in passing, Blackstone’s
position that the King’s actual power had been substantially
augmented in the practice of government. If the King could do that,
why could not the President?
The missing link in Hamilton’s analysis is the relationship between
executive and legislative power. Thus, he does not discuss the
absorption into the U.S. Constitution of parliamentary limitations on
royal prerogatives, the allocation of many royal prerogatives to
Congress, or the apparent withholding of certain prerogatives from
either the President or Congress (what I refer to as the “missing
prerogatives”). Nor does he discuss the prerogative in the rich
historical context that so deeply informed and influenced the
Framers’ thinking. As Gordon Wood states,
[T]he eighteenth century’s discussion of politics can only be
understood in the context of this ancient notion of the Crown’s
prerogatives, the bundle of rights and powers adhering in the
CONSTITUTIONAL HISTORY FROM THE TEUTONIC CONQUEST TO THE PRESENT TIME 519
(6th ed. 1905).
37. See 1 BLACKSTONE, supra note 25, at *335–37.
38. CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA 63 (1986).
39. See THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 335
(noting that the King’s influence over Parliament had obviated the need for
exercising the veto prerogative); THE FEDERALIST No. 76 (Alexander Hamilton), supra
note 3, at 371–72 (commenting on the “venality” of the House of Commons but
stressing the constitutional and practical barriers against undue executive influence
upon the legislative branch in the U.S. Constitution).
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271
King’s authority to rule, set against the rights and liberties of the
40
people, or the ruled, represented in the House of Commons.
Hamilton’s approach in using the royal prerogatives as the
benchmark for measuring presidential power is correct, but his
resulting analysis is not definitive. This Article provides a more
comprehensive examination of the prerogative and its relation to
presidential and congressional powers in the Section that follows.
B. Another Look at the Royal Prerogatives and Presidential Powers
In this Section, I will analyze the relationship of the royal
prerogatives and presidential powers from the perspective of the
historical experiences that shaped the construction of Articles I and
II of the U.S. Constitution: “the great disputes of Stuart England,
which resonated still in eighteenth-century America; alarms over the
rise of ministerial ‘corruption’ under the Hanoverian Kings; and
lessons learned from the efforts of early state constitutions to cabin
41
executive power within strict republican limits.”
Abuses of the royal prerogatives in the seventeenth century led to
the enactment of statutes by which Parliament attempted
proscriptively to control the aggrandizement of executive power and
prevent future abuses. But these restraints did not prevent the Crown
from having dominant power in the eighteenth century. Proscriptive
legislative restraints on executive power were necessary but not
sufficient to prevent autocracy. Many of these restraints were
incorporated into the Constitution, but executive and legislative
power was also fundamentally restructured. In that restructuring,
most of the prerogatives that the King had exercised were vested
completely in Congress, prohibited to the President, or altogether
omitted from the Constitution. Of the few prerogatives delegated to
the Executive, only one was the same as its royal counterpart; the
others were more limited or structurally shared with the legislative
branch. Moreover, in this restructuring of governmental power, the
President was denied any authority over the internal operations of
Congress, but Congress was given substantial power over the creation
and operations of the executive branch. This pattern of decisions—
and the reasons for those decisions—provides a base for examining
theories of presidential power.
40. WOOD, supra note 17, at 19.
41. JACK N. RAKOVE, ORIGINAL MEANINGS 245 (1996).
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This Section will examine the restructuring of executive and
legislative power in five contexts: (1) power over legislation and
taxation; (2) power over the execution of laws; (3) control over the
legislature; (4) foreign affairs, military, and war powers; and
(5) power over commerce.
1.
Legislation and taxation
a.
Proclamations and impositions
When James I assumed the throne in 1603, Parliament was
recognized as having plenary legal powers over legislation and
42
taxation. These powers were challenged by the Stuart monarchs in
aggressive assertions of prerogative power. The early Stuarts, James I
(1603–1625) and Charles I (1625–1649), attempted to legislate
43
through the device of issuing proclamations.
The King had the
prerogative of issuing proclamations that announced the state of the
law and how he intended to enforce it, but the early Stuart monarchs
tried to go a huge step further by adding legal obligations, beyond
44
those required by statutes, to their proclamations.
James I
requested an advisory opinion on his power to issue and enforce such
45
proclamations. In the Case of Proclamations, Chief Justice Coke, on
behalf of the common law justices, declared this form of
46
With the common law courts refusing to
proclamation illegal.
enforce royal proclamations, the Crown brought prosecutions in the
Courts of Star Chamber and High Commission, a practice that
became especially draconian in suppressing dissenters when Charles I
47
ruled without Parliament from 1629 until 1640.
The early Stuarts also usurped Parliament’s exclusive power over
taxation by imposing their own duties on foreign commerce and by
42. 6 HOLDSWORTH, supra note 35, at 22–23.
43. See 1 HENRY HALLAM, CONSTITUTIONAL HISTORY OF ENGLAND FROM THE
ACCESSION OF HENRY VII TO THE DEATH OF GEORGE II 330–31, 411–12 (William S. Hein
Co. 1989) (1827) (detailing the growth in the number and unusualness of
proclamations issued by James I and explaining how Charles I dissolved Parliament).
44. 4 HOLDSWORTH, supra note 35, at 296–97; 6 id. at 31; MAITLAND, supra note
27, at 302. The Tudor monarchs also had issued such proclamations, but their
attempts to obtain statutory authorization were unsuccessful. JAMES S. HART JR.,
THE RULE OF LAW, 1603–1660: CROWNS, COURTS AND JUDGES 6 (2003).
45. (1610) 12 Co. Rep. 74, 2 How. St. Tr. 724 (K.B.).
46. See 1 HALLAM, supra note 43, at 336–38.
47. 1 id. at 433–46. A sympathetic biographer of Charles I has acknowledged that
the King punished breaches of proclamations in the Star Chamber in order to
suppress dissent, but argues that such practice was ineffective and somewhat counterproductive. See KEVIN SHARPE, THE PERSONAL RULE OF CHARLES I, 644–54 (1992).
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THE LIMITS OF EXECUTIVE POWER
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48
exacting compulsory loans. These practices were declared illegal in
the Petition of Right of 1628, which prohibited the imposition of any
49
taxes or loans without the consent of Parliament. Charles I assented
to the Petition but then ignored its requirements. He dissolved
Parliament in 1629 and raised money through a variety of devices, the
most notorious being “ship-money.” The King issued proclamations
imposing annual payments on all English subjects for the purpose of
building an effective navy. Although ship-money impositions had
been used by prior monarchs, Charles I expanded the impositions in
unprecedented ways that made them seem indistinguishable from
50
taxes. Recognizing the potential controversy, Charles I asked for
48. 1 HALLAM, supra note 43, at 313–17, 330, 381–82.
49. 3 Car. 1, c. 1; see MAITLAND, supra note 27, at 307. The duties on foreign
commerce were initiated by James I in 1606 when he imposed a duty on imported
currants that was greater than the amount required by statute. 1 HALLAM, supra note
43, at 313–14. The Court of the Exchequer upheld the King’s action in Bates’s Case
(Case of Impositions), (1606) 2 How. St. Tr. 371. The Chief Baron stated that, because
these duties related to foreign affairs, the King’s prerogative powers were absolute,
and that the power to impose duties on foreign commerce was ancillary to the
Crown’s control over the kingdom’s ports and ingress into the country. Id. at 388–
91. In 1608. James I imposed heavy royal duties on almost all imported merchandise.
1 HALLAM, supra note 43, at 315. The House of Commons passed a Remonstrance
against these impositions of non-Parliamentary taxation in 1610. Id. at 315–16. It
also passed a bill to make such impositions illegal, but the bill was blocked in the
House of Lords. Id. at 317.
To validate compulsory loans, Charles I asked the judges for an advisory opinion
subscribing to their legality, but the judges refused. RICHARD CUST, THE FORCED
LOAN AND ENGLISH POLITICS 1626–1628, at 3, 54–55 (1987). The King then decided
to force the legal issue in Darnel’s Case (Five Knights Case), (1627) 3 How. St. Tr. 1
(K.B.). Darnel and four others were ordered imprisoned by the King for refusing to
comply with the demand for loans. Id. at 2. They petitioned for habeas corpus relief
in the King’s Bench. Chief Justice Crewe, who doubted that the loans were legal and
opposed giving the advisory opinion, was dismissed and replaced by a more
compliant successor, Hyde. Id. at 1 note; see HART, supra note 44, at 68 (describing
how Crewe was removed). The King’s Bench denied the petition without ruling on
the legality of the loans. Five Knights Case, 3 How. St. Tr. at 51. Instead, it held that
the justification for the imprisonment stated on the return—that they were held
pursuant to the order of the King for no stated reason—precluded judicial review,
because the imprisonment was presumably a matter of state and “if a man be
committed by the commandment of the king, he is not to be delivered by a Habeas
Corpus in this court, for we know not the cause of the commitment.” Id. at 52–53,
58–59. This decision led to the provisions in the Petition of Right prohibiting
compulsory loans and all non-parliamentary taxation and requiring that the cause of
confinement be set forth in responses to petitions for habeas corpus. HART, supra
note 44, at 129; see also Boumediene v. Bush, 128 S. Ct. 2229, 2245 (2008)
(explaining that “immediate outcry” over the Five Knights Case influenced the House
of Commons to pass the Petition of Right).
50. As part of its war and military prerogatives, the Crown had the recognized
authority to requisition ships from the coastal districts in a national defense
emergency or, in lieu of that, to charge those districts for ship construction.
Technically, ship-money was considered a payment in lieu of service rather than a
tax, and precedent from the time of Elizabeth I supported it. See HART, supra note
44, at 148 (noting that Elizabeth I and other monarchs had utilized the Crown’s right
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51
and received an advisory opinion from the twelve sitting judges.
The advisory opinion upheld the King’s power to impose charges on
all subjects in England for the defense of the realm when the
kingdom was in danger and asserted that the King was the “sole judge
both of the danger, and when and how the same was to be prevented
52
and avoided.”
53
In Hampden’s Case (Ship-Money Case), an outspoken opponent of
the King, John Hampden, refused to pay his charge of twenty
shillings and was prosecuted in the special Court of the Exchequer
54
55
Chamber.
The judges divided 7-5 in favor of the King.
The
decision appeared to validate a royal prerogative allowing the King to
assume Parliament’s powers upon a declaration of emergency that
could not be questioned.
The combination of legislation through proclamation and taxation
through the ship-money impositions threatened to concentrate
autocratic power in the King. But the decision in the Ship-Money Case
56
backfired. With five of the King’s hand-picked judges dissenting,
to requisition ships); SHARPE, supra note 47, at 553–54 (explaining that the “service”
was actually furnishing a ship to be used by the King). In 1634, fearing a possible war
with several European powers and seeking to protect English commerce from
pirates, Charles I issued ship-money writs to the coastal districts. The next year,
however, he made two decisions that would crystallize challenges to his personal rule:
the ship-money writs were extended nationwide, and they were renewed annually for
five more years. HART, supra note 44, at 148–49; SHARPE, supra note 47, at 552–58.
Because ships could not have been requisitioned from the inland counties, the
impositions functioned as taxes; and because the charges were imposed annually,
there seemed no basis for claiming an imminent emergency. Rather, these
impositions appeared to be transparent devices for circumventing Parliament’s
taxing powers. SHARPE, supra note 47, at 554.
51. There were eight common law justices (King’s Bench and Common Pleas)
and four Barons of the Exchequer (plus the Lord Chancellor). WILFRED PREST, THE
RISE OF THE BARRISTERS 135 (1986). The common law justices served at the pleasure
of the Crown, while the Barons of the Exchequer served during good behavior.
DAVID LINDSEY KEIR, THE CONSTITUTIONAL HISTORY OF MODERN BRITAIN SINCE 1485, at
28, 197 (5th ed. 1969). However, beginning in 1631, Charles I appointed Barons of
the Exchequer to serve at his pleasure. HART, supra note 44, at 60.
52. 1 HALLAM, supra note 43, at 425.
53. (1637) 3 How. St. Tr. 825, 842–46 (quoting the King’s question to the judges
and the advisory opinion).
54. Id. at 846.
55. Nine of the judges upheld the King’s power to impose ship-money charges
for national defense, despite the statutory prohibitions against non-parliamentary
taxation. But two of those judges voted against the King because none of the money
collected from the inland districts could be characterized as payments in lieu of
services. See SHARPE, supra note 47, at 723–24; D.L. Keir, The Case of Ship Money,
52 L.Q. REV. 546, 572 (1936).
56. Although merit was sometimes a factor in the appointment and promotion of
judges, the key criteria were “Patrimony, Patronage, and Purchase.” G.E. AYLMER,
THE KING’S SERVANTS: THE CIVIL SERVICE OF CHARLES I 1625–1642, at 89, 93–96
(1961).
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275
the message sent to the country was that the impositions were illegal,
57
and most subjects refused to pay the charges. Although collections
58
then rebounded, Charles I was not able to raise enough money to
fund the Scottish wars; and in 1640, he called Parliament back into
59
session. The King expected Parliament to cooperate by providing
the funds necessary to suppress the Scots, but some of his councilors
were concerned about a parliamentary counterattack against his uses
60
of power. Those concerns were realized. To prevent executive rule
through proclamations, Parliament abolished the Courts of Star
61
Chamber and High Commission. Additionally, the House of Lords,
acting as the highest Court of England, declared the advisory opinion
and the judgment against Hampden in the Ship-Money Case to be
62
illegal and vacated the judgment against Hampden.
Parliament
then enacted a statute declaring all such royal impositions, and the
63
advisory opinion and decision in the Ship-Money Case, null and void.
These actions marked the beginning of a conflict between a
radicalized Parliament and an intransigent King that would
culminate in the English Civil Wars and the temporary destruction of
the monarchy.
Following the Restoration in 1660, without any prerogative court to
enforce executive legislation through proclamations, the later
Stuarts, Charles II (1660–1685) and James II (1685–1688), limited
proclamations to their legitimate historical uses. They and their
successors issued numerous proclamations that either warned the
57. See JOHN ADAIR, A LIFE OF JOHN HAMPDEN: THE PATRIOT (1594–1643), at 124
(2d ed. 2003) (estimating that two-thirds of the charges were not paid); HART, supra
note 44, at 157 (stating that collections slowed to a “trickle”).
58. SHARPE, supra note 47, at 587–91.
59. See ANTONIA FRASER, CROMWELL: THE LORD PROTECTOR 57–58 (1973);
BRENDAN SIMMS, THREE VICTORIES AND A DEFEAT: THE RISE AND FALL OF THE FIRST
BRITISH EMPIRE, 1714–1783, at 25–28 (2007).
60. See SHARPE, supra note 47, at 851–52, 914–21 (detailing how Charles I’s need
for funding the Scottish wars led him to convene what became the Short and Long
Parliaments).
61. 1640, 16 Car. 1, c. 10; see MAITLAND, supra note 27, at 302; THE STUART
CONSTITUTION: DOCUMENTS & COMMENTARY 106 (J.P. Kenyon ed., 2d ed. 1986)
(stating that “the most important single cause of Star Chamber’s unpopularity was
the role it was called upon to play in the enforcement of the king’s social and
economic policies” through punishing violations of royal proclamations).
62. See 1 A COMPLETE COLLECTION OF STATE-TRIALS AND PROCEEDINGS FOR HIGHTREASON AND OTHER CRIMES AND MISDEMEANOURS: FROM THE REIGN OF KING RICHARD
II TO THE END OF THE REIGN OF KING GEORGE I 716–17 (3d ed. 1742) (House of Lords
decision).
63. 1641, 16 Car. 1, c. 14. Parliament also passed a statute explicitly prohibiting
royal duties on foreign commerce, which Charles I had continued to impose
notwithstanding the Petition of Right. Id. c. 8; see also 1 HALLAM, supra note 43, at
500–01.
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population to obey certain laws, announced how and when they
would enforce statutes, or exercised executive powers that had been
64
delegated to the Crown by Parliament. Thus, the royal prerogative
of issuing proclamations returned to its earlier form of being
65
executive of, but subordinate to, statutes.
However, the later Stuarts resumed the earlier practices of raising
revenues by fees and loans and also diverted appropriations for
66
purposes extrinsic to the legislation.
The Parliament promptly
responded by providing that appropriations to the Crown for war or
any other purpose could be used only for the purposes specified in
the statute and had to be drawn from the treasury pursuant to a
67
warrant with a proper specification. The issue was finally settled by
the English Bill of Rights of 1689, which provided that all power in
levying money was in Parliament and required that money
appropriated for the Crown be used for its intended statutory
68
purpose. Moreover, the House of Commons assumed the power of
69
originating money bills.
The U.S. Constitution adopted these principles of English law.
The powers to tax and spend “for the common Defense and General
Welfare” and to “borrow Money on the credit of the United States”
70
were vested in Congress. Furthermore, the Constitution provides:
“No Money shall be drawn from the Treasury, but in Consequence of
64. See generally 6 HOLDSWORTH, supra note 35, at 303–21 (providing examples
and descriptions of the proclamations).
65. See 1 BLACKSTONE, supra note 25, at *270. Blackstone explained:
For, though the making of laws is entirely the work of a distinct part, the
legislative branch, of the sovereign power, yet the manner, time, and
circumstances of putting those laws in execution must frequently be left to
the discretion of the executive magistrate. And, therefore, his constitutions
or edicts concerning these points, which we call proclamations, are binding
upon the subject, where they do not either contradict the old laws or tend to establish
new ones; but only enforce the execution of such laws as are already in being,
in such manner as the king shall judge necessary.
Id. (emphasis added).
66. 3 HALLAM, supra note 43, at 49–50; MAITLAND, supra note 27, at 308–09.
67. 2 HALLAM, supra note 43, at 356–60; 3 id. at 117–18; TASWELL-LANGMEAD,
supra note 36, at 485–88. For an example of a statute passed early in the reign of
Charles II that contained these restrictions, see An Act for the Speedy Disbanding of
the Army, 1660, 12 Car. 2, c. 15.
68. MAITLAND, supra note 27, at 308–09. Section 4 of the English Bill of Rights
declares: “That levying Money for or to the use of the Crown by pretence of
prerogative, without grant of Parliament, for longer time, or in other manner than
the same is or shall be granted, is illegal[.]” An Act Declaring the Rights and
Liberties of the Subject, and Settling the Succession of the Crown (Bill of Rights),
1689, 1 W. & M., Sess. 2, c. 2, § 4 [hereinafter English Bill of Rights].
69. MAITLAND, supra note 27, at 310.
70. U.S. CONST. art. I, § 8, cl. 1, 2.
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THE LIMITS OF EXECUTIVE POWER
277
Appropriations made by Law; and a regular Statement and Account
of the Receipts and Expenditures of all public Money shall be
71
published from time to time.” It also provides: “All Bills for raising
72
Revenue shall originate in the House of Representatives.”
Furthermore, a special provision limiting appropriations for the
73
armies to two years was also borrowed from English law.
The executive prerogative of issuing proclamations is not
mentioned in the Constitution, nor was it mentioned in The Federalist.
Although this prerogative looks very much like the issuance of
executive orders, it was not included in the Article II enumerated
powers, nor was it transferred to Congress. This is one of the
“missing prerogatives.”
b.
Assent to legislation
The King had one recognized prerogative that made him an
essential part of the legislative process. No bill passed by the two
74
Houses of Parliament could become law without the King’s assent.
Blackstone explained that the royal veto served two important
purposes: primarily, it prevented the legislature from infringing on
royal prerogatives and, secondarily, it prevented the enactment of ill75
advised laws. But the veto was last used in England by Queen Anne
76
(1702–1714) in 1707. Since that time, the Crown had found other
77
means of controlling Parliament that made the veto unnecessary.
The veto prerogative might have been regarded simply as an incident
of history, but for two facts: the prerogative continued to be
78
recognized, with the threat of its use always present in England, and
71. Id. § 9, cl. 7.
72. Id. § 7, cl. 1.
73. Id. § 8, cl. 12 (“The Congress shall have Power To . . . raise and support
Armies, but no Appropriations of Money to that Use shall be for a longer Term than
two Years[.]”). For the English precedent, see infra notes 142–143, 264–265 and
accompanying text.
74. 1 BLACKSTONE, supra note 25, at *261–62; MAITLAND, supra note 27, at 282.
Thus, the statutes passed by the Long Parliament without the assent of Charles I were
declared null and void. MAITLAND, supra note 27, at 282.
75. 1 BLACKSTONE, supra note 25, at *154–55.
76. KEIR, supra note 51, at 297; GOLDWIN SMITH, A CONSTITUTIONAL AND LEGAL
HISTORY OF ENGLAND 381–82 (1st ed. 1955).
77. See infra notes 159–195 and accompanying text (explaining how the King
controlled Parliament through the use of various royal prerogatives); infra notes
267–269 (same).
78. 10 HOLDSWORTH, supra note 35, at 412–13; MAITLAND, supra note 27, at
422–23.
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the Crown frequently employed the veto against the colonial
79
assemblies.
Four grievances in the Declaration of Independence accused the
King of abusing this prerogative by repeatedly refusing to assent to
80
important legislation. American hostility to the veto power was so
81
great that the early state constitutions denied it to their governors.
The Massachusetts Constitution of 1780 was unique in giving this
power to the governor alone, albeit qualified, as the veto could be
82
overridden by two-thirds approval of each house. Massachusetts’s
system became the model for the U.S. Constitution.
Hamilton defended the presidential veto for the same reasons that
Blackstone had defended its royal prerogative counterpart. Without
a veto power, the President “would be absolutely unable to defend
himself against the depredations of [Congress] . . . [and] the
legislative and executive powers might speedily come to be blended
83
in the same hands.” The veto power “not only serves as a shield to
the executive, but it furnishes an additional security against the
84
Thus, the only royal prerogative
enaction of improper laws.”
relating to legislation that the Framers gave to the President was the
veto power, but the Framers made that power subject to
congressional override and therefore less powerful than the
85
counterpart held by the King.
2.
Execution of the laws
The King had the sole power to enforce the laws and the
prerogative of being the nation’s prosecutor. The English theory was
that all offenses against the law are considered personal offenses
79. BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 67–68 (1967)
[hereinafter BAILYN, ORIGINS OF AMERICAN POLITICS]; 10 HOLDSWORTH supra note 35,
at 412–13; RAKOVE, supra note 41, at 248–49.
80. THE DECLARATION OF INDEPENDENCE ¶¶ 3, 4, 5, 10 (U.S. 1776) (complaining
that the King (1) “refused his Assent to Laws,” (2) “forb[ade] his Governors to pass
Laws of immediate and pressing importance,” (3) “refused to pass other Laws for the
accommodation of large districts of people,” and (4) “obstructed the Administration
of Justice, by refusing his Assent to Laws for establishing Judiciary powers”).
81. RAKOVE, supra note 41, at 249–51; WOOD, supra note 17, at 141.
82. RAKOVE, supra note 41, at 253. This power was somewhat muted by the fact
that the governor was elected annually. See MASS. CONST. pt. 2, ch. II, § 1, art. II.
83. THE FEDERALIST No. 73 (Alexander Hamilton), supra note 3, at 358.
84. Id.
85. The President’s veto power is also less arbitrary. The King could refuse to
assent to the enactment of a law without taking any action or giving any reason. The
U.S. Constitution imposes a level of accountability by requiring that, except for
periods when Congress is not in session, the President must return the bill to
Congress with his written objections, and that if the President does nothing within
ten days of its submission to him, the bill becomes law. U.S. CONST. art. I, § 7, cl. 2.
2009]
THE LIMITS OF EXECUTIVE POWER
279
against the King; thus, all prosecutions were brought in his name.
“He is therefore the proper person to prosecute for all public
86
offences and breaches of the peace . . . .” From this total control of
criminal procedure, the Kings asserted the prerogatives of
suspending and dispensing with the laws, appointing and removing
judges, establishing courts of law, and granting reprieves and
87
pardons.
a.
The suspending and dispensing powers
Two of the Crown’s asserted prerogatives had empowered kings to
suspend the operation of statutes and to grant individuals the
dispensation of not being bound by statutes. The suspending power
was much more powerful than the veto because it allowed a king to
nullify not only bills that were presented for his assent but also all
statutes that pre-dated his reign—indeed, every law on the statute
books. The dispensing power resembled an anticipatory pardon; yet,
if used widely enough, the power could be tantamount to suspending
88
a statute.
It is difficult to see how the suspending and dispensing
89
prerogatives could exist in a system of parliamentary supremacy.
But these prerogatives continued to be recognized following the
Restoration in 1660, perhaps because earlier monarchs had used
90
them sparingly.
In 1687, James II issued a Declaration of Indulgence that
91
suspended the ecclesiastical laws.
He also granted dispensations
that exempted large numbers of Catholics from the Test Act, which
92
allowed only conformist Protestants to hold public office. James II
used the dispensing prerogative to appoint many Catholics to high
86. 1 BLACKSTONE, supra note 25, at *268; see also 10 HOLDSWORTH, supra note 35,
at 415.
87. 1 BLACKSTONE, supra note 25, at *266–69; 10 HOLDSWORTH, supra note 35, at
415–17.
88. MAITLAND, supra note 27, at 302–05; TASWELL-LANGMEAD, supra note 36,
at 504–06.
89. 2 HOLDSWORTH, supra note 35, at 366 (“In what way could the undoubted
power which the crown possessed of dispensing from or suspending the operation of
statutes be reconciled with the legislative authority of Parliament?”).
90. Id.
91. In 1672, Charles II had tried to suspend the ecclesiastical laws, but the
reaction in the House of Commons was so severe that he backed down. 2 HALLAM,
supra note 43, at 149–50; 6 HOLDSWORTH, supra note 35, at 221–22.
92. 6 HOLDSWORTH, supra note 35, at 182, 192. A second Test Act excluded all
Catholics from both Houses of Parliament (but exempted the Duke of York, later
James II). Id. at 184–85.
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93
civil and military positions. His goal was either to grant equal rights
to Catholics and non-conformist Protestants (his claim), or, in
conjunction with his powers over the military, to rule despotically and
restore Catholicism as the established religion (his opponents’
94
claim).
A stacked King’s Bench upheld James II’s use of the dispensing
power on a doctrine of royal supremacy over the laws: “[T]he Kings
of England were absolute Sovereigns; . . . the laws were the King’s
laws . . . [and] no Act of Parliament could take away [the royal
95
dispensing] power.” The suspending power was challenged in the
96
Case of the Seven Bishops.
The Archbishop of Canterbury and six
other bishops petitioned the King asserting that he had no power to
suspend the laws, and James II prosecuted them for seditious libel on
97
the ground that they falsely denied one of his prerogatives. Two of
the trial judges sided with the King while two sided with the bishops.
Justice Powell told the jury that “if [the suspending power] be once
allowed of, there will need [be] no Parliament: all the legislature will
98
be in the king, which is a thing worth considering.”
The jury
acquitted the bishops to general national acclaim (at least among
99
conformist Protestants).
In 1689, following the forced abdication of James II, Parliament
enacted the English Bill of Rights. The first declaration of that
momentous statute was “[t]hat the pretended Power of Suspending
of Laws, or the Execution of Laws, by regal Authority, without
100
Consent of Parliament, is illegal.” The royal dispensing prerogative
101
was also declared illegal.
93. 3 HALLAM, supra note 43, at 52–55, 78–79, 85–86; 6 HOLDSWORTH, supra note
35, at 225.
94. See 6 HOLDSWORTH, supra note 35, at 192–93.
95. Godden v. Hales, (1686) 11 How. St. Tr. 1166 (K.B.). James II packed the
bench in advance of the ruling, removing six of the twelve judges and replacing them
with his own appointees. The reconstituted court voted 11-1 in favor of the King. See
Dennis Dixon, Godden v. Hales Revisited—James II and the Dispensing Power, 27 J. OF
LEGAL HIST. 129, 139 (2006); Alfred F. Havighurst, James II and the Twelve Men in
Scarlet, 69 L.Q. REV. 522, 530–32 (1953).
96. (1688) 12 How. St. Tr. 183 (K.B.).
97. Id. at 192–202.
98. Id. at 427.
99. Id. at 430–31.
100. English Bill of Rights, supra note 68, § 1.
101. Section 2 of the English Bill of Rights condemned the use of the dispensing
power “as it hath been assumed and exercised of late.” Id. § 2. Article XII of the
statute prohibited the King from granting any dispensations except pursuant to
statutory authorization. No such statute was passed.
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THE LIMITS OF EXECUTIVE POWER
281
The English Bill of Rights became a template for American
constitution drafting. Virtually every secular provision in that statute
was incorporated into the U.S. Constitution. The prohibition on the
suspending and dispensing powers was encoded in Article II’s
requirement that the President must “take Care that the Laws be
102
103
faithfully executed.” Thus, these rejected royal prerogatives were
denied to the President. The Supreme Court stated as much in its
most direct conflict with President Andrew Jackson, using language
that could have been lifted from Justice Powell’s charge in the Case of
104
the Seven Bishops.
b.
Proscriptions on executive power
Many statutes were enacted to protect English citizens from abuses
of the King’s law enforcement prerogatives. In 1628, the Petition of
Right extended the declaration of the Magna Carta in requiring that
all persons were entitled to trials according to the “due process of
105
It also prohibited the imposition of martial law and
law.”
guaranteed the writ of habeas corpus to all who were arrested by
requiring that specific cause must be shown for detention. The
106
Habeas Corpus Act of 1679 prohibited arbitrary executive arrests
and detentions, while also prescribing detailed procedures and
requirements for “the Great Writ” to guarantee due process of law.
This Act also provided criminal penalties for anyone who evaded its
provisions, including taking a detainee outside of England, which was
beyond the reach of the Great Writ. The English Bill of Rights
guaranteed the right to petition the King, free elections for
Parliament, jury trials, and the legislative speech and debate
102. U.S. CONST. art. II, § 3 (emphasis added); see Christopher N. May, Presidential
Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST.
L.Q. 865, 870–74 (1994); Robert J. Reinstein, An Early View of Executive Power and
Privilege: The Trial of Smith and Ogden, 2 HASTINGS CONST. L.Q. 309, 320–21 n.50
(1975).
103. See 1 BLACKSTONE, supra note 25, at *276–77 (explaining that “the laws of
England are absolutely strangers” to the vesting of the legislative or dispensing power
“in any single person”).
104. See Kendall v. United States ex rel. Stokes, 37 U.S. 524, 612–13 (1838). Justice
Thompson explained,
This is a doctrine that cannot receive the sanction of this court. It would be
vesting in the President a dispensing power, which has no countenance for
its support in any part of the constitution; and is asserting a principle, which,
if carried out in its results, to all cases falling within it, would be clothing the
President with a power entirely to control the legislation of congress, and
paralyze the administration of justice.
Id.
105. 1628, 3 Car. 1, c. 1.
106. 31 Car. 2, c. 2.
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107
privilege.
It also prohibited the imposition of excessive bail and
108
cruel and unusual punishment.
Finally, it required “that for
Redress of all Grievances and for the amending, strengthening and
109
preserving of the Laws Parliaments ought to be held frequently.”
This list should look familiar, because almost all of these
110
proscriptions were incorporated into the U.S. Constitution.
c.
The courts and judicial independence
The previously absolute royal prerogative of establishing courts was
cut back when the Parliament eliminated the Courts of Star Chamber
and High Commission in 1641 and when it declared illegal the
111
establishment of ecclesiastical courts by James II.
But George III
used this prerogative in the colonies, to the chagrin of Americans, by
establishing prerogative courts for the purpose (so Americans
112
thought) of denying jury trials.
This was one of the grievances in
113
the Declaration of Independence, and the Framers of the U.S.
Constitution did not give any such power to the President. Instead,
the Constitution created the Supreme Court and vested in Congress
114
the power to create the inferior federal courts.
107. English Bill of Rights, supra note 68, §§ 5, 8, 9, 11.
108. Id. § 10.
109. Id. § 13.
110. See U.S. CONST. art. I, § 4, cl. 1 (placing control over congressional elections
initially in the state legislatures but ultimately in Congress); id. § 4, cl. 2 (requiring
that Congress must assemble at least once per year); id. § 6, cl. 1 (guaranteeing the
legislative speech and debate privilege); id. § 9, cl. 2 (mandating that habeas corpus
shall not be suspended except in specified circumstances); U.S. CONST. art. III, § 2,
amend. 6, 7 (mandating the right to jury trials); U.S. CONST amend. 1 (guaranteeing
the right to petition the government); U.S. CONST. amend. 5 (requiring due process
of law in all criminal cases); U.S. CONST. amend. 8 (banning excessive bail and cruel
and unusual punishments).
The seventh section of the English Bill of Rights provided, “That the Subjects
which are Protestants may have Arms for their Defen[s]e suitable to their Conditions
as allowed by Law.” English Bill of Rights, supra note 68, § 7. In District of Columbia v.
Heller, 128 S. Ct. 2783 (2008), the Court interpreted this provision as guaranteeing an
individual right to bear arms, at least for Protestants, and therefore as a precursor to
the Second Amendment. Id. at 2798. This may not be correct. No other right in
that statute has a qualification of “suitable to their Conditions” or “as allowed by
Law.” And the corresponding grievance in the English Bill of Rights accused the
King of “causing several good Subjects being Protestants to be disarmed at the same
time when Papists were both armed and employed contrary to Law.” English Bill of
Rights, supra note 68, Grievance 6. The operative clause may have dealt more with
the respective positions of Protestants and Catholics than with guaranteeing
individual rights.
111. English Bill of Rights, supra note 68, § 3.
112. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 68–69;
10 HOLDSWORTH, supra note 35, at 414.
113. THE DECLARATION OF INDEPENDENCE ¶ 20 (U.S. 1776).
114. U.S. CONST. art. I, § 8, cl. 9; U.S. CONST. art. III, § 1.
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283
Parliament’s elimination of prerogative courts and the statutory
proscriptions on the royal prerogatives were major steps towards
establishing the rule of law, but they could not be effective without an
independent judiciary. The King could appoint all judges and could
115
remove the common law judges at will, and he appointed judges
whom he could influence, particularly at times of constitutional
conflict.
Charles II’s appointees to the bench have been
116
characterized as “scandalous,” and James II relied not only on his
prerogatives but also on “a packed bench of judges,” who typically
117
acted as servants of the Crown.
By 1765, when Blackstone wrote his commentaries on the royal
prerogative, the King’s control over his judges had yielded to an
118
independent judiciary. Through the Act of Settlement of 1701, the
Parliament took the first major step towards judicial independence by
providing that the compensation of judges could not be reduced and
that judges would serve during good behavior, at least until the
119
demise of the King. This “demise of the King” proviso meant that
the judges had to resign upon a change of monarchs, and the next
monarch could decide whether to reappoint them or not. This
proviso was removed by a statute enacted in 1760, the first year of
120
George III’s reign. Thus, the King lost the power to remove judges;
they served for life during good behavior and with a fixed
compensation, subject to removal only by Parliament.
The guarantees of judicial independence within England changed
the British Constitution. The courts became a critical check on the
exercise of arbitrary executive power, and their decisions in cases
121
122
such as Wilkes v. Wood and Entick v. Carrington were not only
115. See discussion supra notes 49, 51, 95.
116. 10 HOLDSWORTH, supra note 35, at 416.
117. 6 id. at 192. For example, the judges vitiated the Habeas Corpus Act by
requiring excessive bail for those detained by the Crown, and a stacked court upheld
the dispensing power. 10 id. at 213; see discussion supra note 95.
118. 12 & 13 Will. 3, c. 2. This was enacted near the end of the reign of William
III. William and Mary reigned jointly from 1689–1694, and William III continued to
reign until 1702.
119. See 2 HALLAM, supra note 43, at 391. Parliament could, however, remove
judges through a joint resolution of the two Houses. Such a joint resolution was
called an “address” of each House.
120. 1 Geo. 3, c. 23.
121. See (1763) 98 Eng. Rep. 489, 490 (K.B.) (holding that the Secretary of State
committed an act of trespass by entering an individual’s home and destroying his
property with a general administrative warrant).
122. See (1765) 95 Eng. Rep. 807, 817 (K.B.) (concluding that messengers of the
King had no authority to enter into the private home of an individual and seize his
papers and effects without a judicial warrant and probable cause).
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123
significant restrictions on the royal prerogative but were venerated
124
by the founding generation in America.
Blackstone and later
British historians asserted that the guarantees of judicial
independence were essential to the positive features of the British
125
Constitution.
The situation in the colonies was different. Because American
126
judges served at the pleasure of the Crown, the New York Assembly
passed a bill in 1759 providing for the same guarantees of judicial
independence as in England. The bill was vetoed by George III in
1760. The following year, the King and Privy Council issued
directives to each of the colonial assemblies that all judges in the
colonies would continue to serve at the pleasure of the King and his
127
royal governors.
One of the grievances of the Declaration of
Independence was that the King denied life tenure and fixed
128
compensation to the colonial judges.
The Framers of the U.S. Constitution embraced the British
guarantees against the removal of judges, but they went even further
to secure judicial independence. As in Britain, federal judges were
guaranteed service during good behavior and compensation that
129
could not be reduced.
The President was given no power to
remove federal judges, and Congress could do so only through the
130
cumbersome process of impeachment.
The Framers also
established the judiciary as a separate branch of government. In the
British system, appeals could be taken from the English courts to the
House of Lords, whereas in the American system, appeals could be
taken from the Supreme Court to no one. This separation of the
123. KEIR, supra note 51, at 310–11.
124. See LEONARD LEVY, ORIGINS OF THE BILL OF RIGHTS 161–64 (1999). The
holdings of Wilkes v. Wood and Entick v. Carrington were codified in the Fourth
Amendment. See U.S. CONST. amend. IV.
125. 1 BLACKSTONE, supra note 25, at *269–70. One of Blackstone’s most
important theoretical achievements was to adapt the work of Montesquieu, who
considered only the legislative and executive branches, to the significance of an
independent judiciary as a separate branch of government. 10 HOLDSWORTH, supra
note 35, at 417; VILE, supra note 25, at 172–73.
126. RAKOVE, supra note 41, at 248–49.
127. BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 105
(1968) [hereinafter BAILYN, IDEOLOGICAL ORIGINS].
128. THE DECLARATION OF INDEPENDENCE ¶ 11 (U.S. 1776).
129. U.S. CONST. art. III, § 1.
130. The Constitutional Convention rejected the English method of removing
judges through legislative joint resolution. 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 428–29 (Max Farrand ed., rev. ed. 1966) [hereinafter FEDERAL
CONVENTION].
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285
judiciary from the other branches is one of the great innovations in
131
the U.S. Constitution.
d.
The singular pardoning power
The remaining royal prerogatives in law enforcement are those of
pardon and prosecution. Although the pardoning power had been
132
abused as a political weapon, particularly by Elizabeth I, only two
legislative restraints were put on its exercise. The Habeas Corpus Act
of 1679 prohibited the Crown from pardoning anyone who took a
detainee outside of England and thus beyond the reach of the Great
133
Writ, and the Act of Settlement of 1701 prohibited the Crown from
134
using the pardoning power to prevent impeachment.
The latter
135
qualification was included in the U.S. Constitution.
But the
presidential pardoning power is still substantially less than its royal
prerogative counterpart. With the two exceptions noted above, the
King could pardon for any offense. On the other hand, the President
136
can pardon only for “Offenses against the United States.”
This restriction was almost certainly motivated by considerations of
federalism, but, inasmuch as most crimes are violations of state law, it
has the effect of limiting the presidential pardoning power to a small
137
percentage of all crimes.
This makes the actual extent of the
President’s power to grant reprieves and pardons much less than that
held by the Crown.
Finally, the King’s prerogatives included the sole power to enforce
the laws. Although enforcing federal criminal and civil laws might
certainly be viewed as being a central executive power in this country,
the Framers did not include it as one of the President’s enumerated
powers in Article II. Instead of vesting the President with such
plenary power, the Constitution imposes upon the President the duty
138
to “take care that the laws [be] faithfully executed.”
This is the
second instance of a “missing prerogative.”
131. VILE, supra note 25, at 173.
132. See Jean Teillet, Exoneration for Louis Riel: Mercy, Justice, or Political Expediency?,
67 SASK. L. REV. 359, 374 (2004) (summarizing the political reasons for which the
Crown invoked the pardoning power and noting that the power was not ordinarily
used for the intended purpose of mercy or justice).
133. 31 Car. 2, c. 2.
134. 12 & 13 Will. 3, c. 2.
135. U.S. CONST. art. I, § 2.
136. U.S. CONST. art. II, § 2, cl. 1.
137. Thus, the President cannot, for example, pardon or commute the sentence
of a prisoner on a state’s death row.
138. U.S. CONST. art. II, § 3.
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In summary, while many proscriptive limitations on the royal
prerogative to enforce the laws were thus constitutionalized, the only
prerogative power that was given to the President was the authority to
grant reprieves and pardons for offenses against the United States.
3.
Control of the legislature
a.
Direct control
The King’s prerogatives included the powers to summon
139
Parliament into session and to prorogue or dissolve it.
These
prerogatives were greatly abused by the Stuart kings. They could, and
did, avoid dealing with a difficult legislature by refusing to call it into
session or by dissolving it; conversely, they could make use of a
140
compliant legislature by continuing it indefinitely.
Acts of Parliament limited these prerogatives. Following the
Restoration, a series of acts set maximum terms for Parliament and
for elections for the House of Commons and also required that
Parliament meet frequently. Parliament asserted the right to
141
determine when it would adjourn.
Perhaps the most important
limitation on the prerogative was a practical one: with Parliament
having secured control over revenues and legislation, it was no longer
feasible for the King to rule without the assistance of Parliament.
This was particularly true on account of the eighteenth-century
142
“Number of the Land Forces” and “Mutiny Acts.”
These laws
authorized standing armies and appropriations for them on an
annual basis, which meant, as a practical matter, that Parliament had
143
to meet at least once a year.
But these legal and practical restraints did not apply in the
colonies, and the King used his prerogatives to control (or rule)
obstreperous colonial assemblies. The royal governors regularly
prorogued and dissolved colonial assemblies, which prevented the
assemblies from operating like the House of Commons and instead
139. MAITLAND, supra note 27, at 422.
140. 1 HALLAM, supra note 43, at 173, 188 (James I); 1 id. at 193–94, 198–99, 212,
215, 246–52 (Charles I); 2 id. at 323–24, 428–30, 440–41, 446 (Charles II); 3 id. at
57–60, 73–75 (James II).
141. 6 id. at 255–56.
142. 1 BLACKSTONE, supra note 25, at *414–15.
143. MAITLAND, supra note 27, at 374; see also RAKOVE, supra note 41, at 248-49
(explaining that the requirement that the Parliament meet regularly served as an
important check on executive power).
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287
144
made them dependent on the governors for their existence. Four
grievances in the Declaration of Independence charged the King with
145
abusing these prerogatives.
The British model of frequent legislative sessions and fixed terms
for elections became an important feature of the U.S. Constitution.
With minor exceptions, this was accomplished by eliminating any
power in the President over the subject. Congress was required to
146
meet at least once every year, on a specified date, and fixed terms
147
were set for members of Congress. The two Houses were given the
148
power to decide jointly on the time for adjournment, and the
President was not given the power to prorogue or dissolve a Congress.
The President’s authority over when and for how long Congress
could meet was limited to two rare situations: he could call Congress
or either House into special session “on extraordinary Occasions,”
and he could adjourn Congress if the two Houses were unable to
149
agree on the time. In essence, the royal prerogative over legislative
meetings was effectively transferred to Congress.
b.
The theory of the balanced constitution
The Glorious Revolution and its aftermath shattered royal claims to
absolute power in England and established the legal supremacy of
150
Parliament. It also led to a British Constitution characterized by a
balance of power between the legislature and the executive, and
later, the judiciary. Blackstone described the British Constitution as
perfect: the total union of executive and legislative power would
151
produce tyranny, but the partial separation of powers of the
branches, and the resulting system of checks and balances between
the King’s prerogatives and Parliament’s taxing and legislative
152
powers, guaranteed liberty and prosperity.
The period from the end of the War of the Spanish Succession in
1713 through the beginning of the American Revolution was one of
144. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 67-68; RAKOVE, supra
note 41, at 248-49.
145. THE DECLARATION OF INDEPENDENCE, ¶¶ 4, 5, 6, 22 (U.S. 1776).
146. U.S. CONST. art. I, § 4.
147. Id. §§ 2–3.
148. Id. § 4. This provision allows either House to adjourn without the other’s
consent for up to three days. In England, either House could also adjourn for short
periods of time. 1 BLACKSTONE, supra note 25, at *186.
149. U.S. CONST. art. II, § 3.
150. TASWELL-LANGMEAD, supra note 36, at 519.
151. 1 BLACKSTONE, supra note 25, at *145–47.
152. Id. at *154–55; see VILE, supra note 25, at 58–82 (elaborating on the theory of
the balanced constitution in Britain).
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British triumphalism—the first British Empire—and there was a
widespread belief that the eighteenth-century British Constitution
153
was largely responsible for the country’s success. That constitution
was lauded, not only by Blackstone, but by such diverse figures as
154
Montesquieu, Voltaire, and Hume. The universal view was that the
key to the British Constitution was the division of powers to produce
155
a system of balanced government, and that “[t]he very idea of
liberty was bound up with the preservation of this balance of
156
For many years, the colonists shared the view that the
forces.”
British Constitution was the best and freest system of government in
157
the world.
c.
Executive dominance
This was the classical view of the British Constitution. The reality
was quite different. Blackstone suggested as much in comments
contained in a later portion of his treatise. He wrote that if one
looked at the statute books alone, it would seem that:
[T]he powers of the crown are now to all appearance greatly
curtailed and diminished since the reign of king James the first . . .
[and] we may perhaps be led to think, that the bal[]ance [of
power] is [i]nclined pretty strongly to the popular scale, and that
the executive magistrate has neither independence nor power
enough left, to form that check upon the lords and commons,
158
which the founders of our constitution intended.
But, happily for Blackstone, by making full use of certain
prerogatives, the King was able to exercise tremendous “influence”
159
Blackstone concluded, “Upon the
and “power” over Parliament.
whole therefore I think it is clear, that, whatever may have become of
the nominal, the real power of the crown has not been too far
153. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 17-23.
154. KEIR, supra note 51, at 293-96.
155. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 70-72.
156. Id. at 76-77.
157. See, e.g., BOWEN, supra note 38, at 57 (“Even the youngest man present [at the
Constitutional Convention] had been born under the British government; all of
them had grown up in the belief that the English government and the English
common law comprised the best and freest system on earth.”); WOOD, supra note 17,
at 10-13.
158. 1 BLACKSTONE, supra note 25, at *334.
159. Id. at *335–37; see also THE FEDERALIST No. 69 (Alexander Hamilton), supra
note 3, at 335 (“The disuse of [the royal veto] power for a considerable time past,
does not affect the reality of its existence; and is to be ascribed wholly to the crown’s
having found the means of substituting influence to authority . . . .”).
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THE LIMITS OF EXECUTIVE POWER
289
weakened by any transactions in the last century. Much is indeed
160
given up; but much is also acquired.”
The King’s prerogatives included the sole power to make
appointments to all government positions outside of the House of
Commons and to create and dispense offices, pensions, privileges,
161
and honors, including titles of nobility. Except for the judges and
members of Parliament, all office-holders served at the pleasure of
162
the King and were removable at his will.
William III and Anne
began to assert royal control over the government by appointing
163
ministers independently of parliamentary majorities. The House of
Lords was easily subject to royal influence because the Crown
164
It could be counted on to block
appointed all of its members.
measures of the House of Commons to which the King objected, thus
165
obviating the need for the veto power.
And it could be
manipulated to support the Crown’s agendas. Thus, when a majority
of the House of Lords did not support her foreign policy, Anne
created twelve new peers and effectively established a new majority
166
supportive of the Crown.
Control over the House of Commons was accomplished over time
through the creation of a massive patronage system that used honors,
pensions, and bribes, as well as appointments to and removals from
167
offices. The system was enforced by the Crown’s ministers who held
168
parliamentary positions. In 1713, the House of Commons adopted
Standing Order No. 66, which provided that no appropriation could
169
be voted for any purpose except on a minister’s motion. Thus, by
the end of Anne’s reign, the Queen, through her ministers, had
taken substantial control over the direction of finance.
160. 1 BLACKSTONE, supra note 25, at *337.
161. Id. at *271–72.
162. MAITLAND, supra note 27, at 428-30.
163. KEIR, supra note 51, at 276-82.
164. 1 BLACKSTONE, supra note 25, at *157–58; 10 HOLDSWORTH, supra note 35,
at 412-13.
165. This practice continued through the reign of George III, who used the
House of Lords to block objectionable bills. 10 HOLDSWORTH, supra note 35, at 607.
Peers who opposed George III were deprived of their offices, while those who
supported him were rewarded with offices and pensions. Id. at 618.
166. KEIR, supra note 51, at 282-88; SMITH, supra note 76, at 381-82.
167. 10 HOLDSWORTH, supra note 35, at 418; SMITH, supra note 76, at 401-02.
These ideas were not original to the Hanover monarchs. Charles II had used similar
techniques to corrupt Parliament. 2 HALLAM, supra note 43, at 355-56, 398-99; see also
3 id. at 189-90 (describing William III’s use of bribery).
168. Although the 1701 Act of Settlement prohibited members of Parliament from
holding other offices, that portion of the statute was repealed in 1705 to the extent
that it applied to then-existing offices. See KEIR, supra note 51, at 282–88.
169. Id. at 281-82.
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As Britain became richer, the patronage machine flourished.
By the reign of George III, nearly 200 members of the House of
170
Another
Commons enjoyed separate offices under the Crown.
thirty or forty members were beholden to the King for the awards of
lucrative contracts, and yet other members benefited by being able to
nominate their friends or supporters to the 8000 or so available
171
excise offices. As a result, “[t]his influence of the crown helped it
172
to control the Legislature all through the eighteenth century.”
An embryonic form of cabinet government that began under Anne
continued to function under George I (1714-1727) and George II
173
(1727-1760).
Ministers acted primarily as the King’s servants and
were responsible for conducting the government and dispensing his
174
patronage.
One of their principal tasks was to ensure that the
King’s policies would be supported by Parliament, and this was a
175
major criterion of their usefulness to the Crown. Consequently, the
King and his ministers had to take into account the views of the
leaders of the House of Commons, and ministers were replaced if
176
they unduly antagonized the leaders of the House.
But this
situation barely resembled true cabinet government, which was not
177
instituted in England until 1827.
George I and II delegated much of their prerogative powers to
their ministers.
George III was determined to exercise his
prerogatives personally:
170. SMITH, supra note 76, at 401-02.
171. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 29.
172. 10 HOLDSWORTH, supra note 35, at 419. One measure of the increasingly
successful “influence” of the Crown over the House of Commons is the number of
ministerial impeachments during the period of 1689-1787. There were fifteen
impeachments during the reigns of William III, Anne, and George I; only one during
the reign of George II (Lord Lovat, in 1746, for high treason in supporting the
Scottish rebellion); and none during the reign of George III. THOMAS ERSKINE MAY,
A TREATISE UPON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGES OF PARLIAMENT 38–39
(1844).
173. SMITH, supra note 76, at 381-97.
174. KEIR, supra note 51, at 297.
175. Id. at 280-82, 316-17.
176. Id. at 330-34.
177. SMITH, supra note 76, at 398. Even a minister as powerful as Sir Robert
Walpole, referred to as the first “prime” minister, owed his position solely to the
King’s pleasure. J.H. PLUMB, ENGLAND IN THE EIGHTEENTH CENTURY 70 (1963).
Although he exercised great power, “Walpole did not . . . enjoy any tenure
independent of royal favo[]r,” nor did he choose the other ministers. KEIR, supra
note 51, at 332. Walpole was eventually removed when widespread opposition in the
House of Commons convinced George II that Walpole’s utility in influencing
Parliament had ended; the government did not fall, however, because the other
ministers stayed on. Id. at 330-34. If cabinet government had developed in England
before the American constitutions were enacted, the presidency might look quite
different. RAKOVE, supra note 41, at 268.
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THE LIMITS OF EXECUTIVE POWER
291
George III was not bound to accept the advice of his ministers.
True, they were chosen to give him adequate advice. But they held
office during his pleasure. The majority in the House of Commons
was made and held largely by Crown patronage. The effective
ministers of the smaller Cabinet were only responsible to George
III and to the courts, including the House of Lords before which
they might be impeached.
They were not responsible to
Parliament. The idea, as well as the practice, was simply alien to
the age.
Nor was there collective or corporate Cabinet
responsibility.
That idea was not accepted until 1827.
Responsibility was thus individual and legal. It was not collective
178
and it was not Parliamentary.
All of the parties in England understood that the appointment,
removal, and related prerogatives were the sources of the King’s
179
180
power.
Until the disastrous results of George III’s reign, this
system was widely supported in England because it brought stability
and efficiency to government and riches to its beneficiaries:
The whole system operated with remarkable effect. No king had to
resort to the royal veto, never employed after Anne in 1708 . . . . No
government ever lost a general election, nor did any government,
until the ill-success of that of Lord North in the American War
caused its overthrow in 1782, ever fail to sway Parliament so long as
181
it possessed the King’s confidence.
A vocal opposition within England was disgusted by the amount of
corruption in the government and was fearful of the concentration of
power in the Crown, which the opposition saw as destroying the
necessary balance of powers in the British Constitution and violating
the liberties of the people. The opposition filled the printing presses
178. SMITH, supra note 76, at 398-400.
179. WOOD, supra note 17, at 143-45.
180. As one historian explained, the judgment of George III was as damning in
England as in the colonies:
During the first twenty-four years of his reign, by his meddlesome energy and
restless activity in regulating every affair of State from the greatest to the
least, combined with a resolute obstinacy in enforcing his own views against
the opinions of his Constitutional advisers, he succeeded in alienating the
affections of his people, in reducing the nation from prosperity to the depths
of adversity, and of depriving the country for ever of its American colonies.
TASWELL-LANGMEAD, supra note 36, at 545.
181. KEIR, supra note 51, at 297; see also BAILYN, ORIGINS OF AMERICAN POLITICS,
supra note 79, at 27-29. North’s ouster on a vote of no confidence was, at the time,
an anomaly. The loss of the American colonies was catastrophic and briefly curtailed
the King’s ability to select his ministers, but by the election of 1784, normal
conditions were restored with George III again personally choosing ministers whom
he used to control Parliament. RAKOVE, supra note 41, at 268.
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182
with exposés and protests.
From these opposition writings, as well
as from first-hand observations by colonial visitors to London, the
colonists knew of the widespread corruption and consolidation of
183
power in England. This opposition had little effect in England but
184
had a profound effect in America.
The fears of the colonists were compelling: if these distortions of
the British Constitution could happen in the mother country, what
would stop the same calamities from being imposed on the colonies?
The colonists saw an unmistakable pattern of coercive actions
emanating from the Crown that had the same purpose as the abuses
of power in England—“the destruction of the English constitution,
185
with all the rights and privileges embedded in it.”
This belief
186
“added an inner accelerator” to the colonists’ opposition to the
King:
It was this—the overwhelming evidence, as they saw it, that they
were faced with conspirators against liberty determined at all costs
to gain ends which their words dissembled—that was signaled to
the colonists after 1763, and it was this above all else that in the end
187
propelled them into Revolution.
Complementing the use of the appointments and related
prerogatives was ministerial control of elections to the House of
Commons. On behalf of the King, the ministers used their
“influence” in Parliament to maintain rotten boroughs, buy and sell
188
seats, and severely restrict the number of eligible voters.
The
elections, expulsion, and exclusions of John Wilkes from the House
of Commons were orchestrated by the ministers and deeply affected
the colonists:
Americans could only watch with horror and agree with [Wilkes]
that the rights of the Commons, like those of the colonial Houses,
were being denied by a power-hungry government that assumed to
itself the privilege of deciding who should speak for the people in
182. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 48-54; BAILYN, ORIGINS OF
AMERICAN POLITICS, supra note 79, at 31-52; Victoria Nourse, Toward a “Due
Foundation” for the Separation of Powers: The Federalist Papers as Political Narrative,
74 TEX. L. REV. 447, 456-58 (1996).
183. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 86-93.
184. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 35, 53-58.
185. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 95.
186. Id.
187. Id.
188. BAILYN, ORIGINS OF AMERICAN POLITICS, supra note 79, at 27-29; KEIR, supra
note 51, at 323-25.
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THE LIMITS OF EXECUTIVE POWER
293
their own branch of the legislature. . . . [T]he constitution was
189
being deliberately, not inadvertently, torn up by its roots.
The colonial governors tried to replicate this control over the
assemblies. They began developing the same patronage system that
190
had corrupted the legislature in England, a practice that was
191
condemned in the Declaration of Independence.
But the
conditions in the colonies were not suitable for the successful
executive use of “influence” to control the assemblies. The governors
were unable to establish huge patronage machines, rotten boroughs
192
did not exist, and there were many more eligible voters. The King
and his governors resorted to coercion and force as means of
destroying colonial autonomy and exporting executive autocracy to
193
America.
This explains why the post-independence hostility of having a king
in America, even an elected one, was so great. When drafting the
state constitutions, the revolutionaries minimized executive power
because they did not trust the British system of limiting executive
prerogatives through proscriptive laws. “The King may have been
rigidly confined in the eighteenth-century constitution; but few
Englishmen would deny that the principal duties of government still
194
belonged with the Crown.” The problem facing the Constitutional
Convention was this: a strong executive was essential, but the
approach taken in the Glorious Revolution of limiting executive
power through proscriptive laws had not prevented the Hanoverian
Kings from obtaining autocratic power through the lawful exercise of
195
prerogative power.
The Framers took a new approach. While
189. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 112; see also Powell v.
McCormack, 395 U.S. 486, 527–31 (1969) (explaining the circumstances that led to
the expulsion of Wilkes and the impact of the case on the colonies); VILE, supra note
25, at 118-20 (discussing the importance of Wilkes’s case).
190. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 109-10.
191. THE DECLARATION OF INDEPENDENCE ¶ 10 (U.S. 1776).
192. BAILYN, IDEOLOGICAL ORIGINS, supra note 127, at 71-91.
193. Id. at 131-50; see also id. at 117 (“Unconstitutional taxing, the invasion of
placemen, the weakening of the judiciary, plural officeholding, Wilkes, standing
armies—these were major evidences of a deliberate assault of power upon liberty.”).
194. WOOD, supra note 17, at 136.
195. After the British surrender at Yorktown in 1781, Charles James Fox, the
leader of the Whig opposition, accused the Crown’s corruption of Parliament as
having caused the loss of the American colonies:
There was one grand domestic evil, from which all our other evils, foreign
and domestic, had sprung. To the influence of the Crown we must attribute
the loss of the army in Virginia . . . [and] the loss of the thirteen provinces of
America; for it was the influence of the Crown in the two Houses of
Parliament, that enabled His Majesty’s ministers to persevere against the
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adopting legal prohibitions on abuses of executive power from the
British Constitution, the Framers also restructured power by
transferring many royal prerogatives to the legislative branch,
requiring prior legislative approval for others and eliminating some
altogether.
Given that the royal prerogatives to create offices, appoint and
remove officials, and dispense pensions and titles were so central to
the concentration of malignant power in the Crown, one would
expect the Convention delegates to treat these prerogatives with
196
exceptional care.
Their concerns are reflected in eight
constitutional provisions. The royal prerogative of appointing
members of the legislature (to the House of Lords) was eliminated;
the President was given no power to appoint members of Congress,
197
not even to fill vacancies. The power to create offices and pensions
198
199
Titles of nobility were abolished.
was vested in Congress.
Members of Congress were prohibited from simultaneously holding
200
any other federal office; they were also prohibited from accepting
appointment to any federal office that was created, and from
accepting compensation that was increased, during the terms for
201
which they were elected.
The unlimited royal prerogative of
appointing all executive and judicial officers was greatly qualified in
voice of reason . . . . This was the grandparent spring from which all our
misfortunes flowed.
SIMMS, supra note 59, at 666 (quoting Parliamentary debates).
196. Madison told Jefferson that the Convention delegates focused on two issues
concerning the executive department: whether there should be a single or plural
presidency, and how to deal with appointments to office and the potential of
executive control over the Legislature. Letters from James Madison to Thomas
Jefferson (Oct. 24 & Nov. 1, 1787), in 1 DOCUMENTARY HISTORY, supra note 18, at
98-99.
197. U.S. CONST. art. I, § 2, cl. 4; id. § 3, cl. 2.
198. This power was vested in Congress through the spending power, id. § 8, cl. 1,
the Necessary and Proper Clause, id. § 8, cl. 18, and the requirement that no money
could be drawn from the Treasury except in conformity with appropriations made by
law, id. § 9, cl. 7.
199. Id. § 9, cl. 8.
200. Id. § 6, cl. 2. This constituted a return to the repealed provision of the 1701
Act of Settlement. See VILE, supra note 25, at 171 (examining how the hatred of
corruption and influence in the British legislature caused the Framers to separate
executive and legislative personnel); Steven G. Calabresi & Joan L. Larsen,
One Person, One Office: Separation of Powers or Separation of Personnel?, 79 CORNELL L.
REV. 1045, 1053-54 (1994) (same).
201. U.S. CONST. art. I, § 6, cl. 2. Hamilton linked these provisions to insulating
Congress from the kind of executive corruption that was prevalent in England, with
the observation that “[t]he venality of the British House of Commons has been long
a topic of accusation against that body, in the country to which they belong, as well as
in this; and it cannot be doubted that the charge is to a considerable extent well
founded.” THE FEDERALIST No. 76 (Alexander Hamilton), supra note 3, at 372.
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295
Article II. For ambassadors, other public ministers and consuls,
judges of the Supreme Court, “and all other Officers of the United
States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law,” the President was given the
power of appointment, but only with the prior approval of the
202
Senate. And, in an apparent attempt to prevent the President from
having the authority to create a massive patronage system,
“the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of
203
Law, or in the Heads of Departments.”
These restrictions on the
President’s appointment power constitute a network of responses to
the gross abuses of the corresponding royal prerogatives.
At the time of the Constitutional Convention, the King’s
prerogatives included the power to remove any government official,
except members of Parliament and judges. The U.S. Constitution
vested the power to remove a member of Congress in his or her
House and provided that federal judges would hold their offices
during “good behavior,” being subject to removal only through
204
impeachment. The President and all other executive officials could
205
also be removed by Congress through impeachment, but here
again, there is a “missing prerogative”—the President’s removal
power. The removal of executive officials by the President is not an
enumerated power under Article II. Because the King’s power to
remove his ministers and all other executive officers was so critical to
his aggrandizement of power at the expense of Parliament, the
omission of a removal power appears significant. This is our third
“missing prerogative.”
Finally, the Constitution excluded the President from having any
role in elections for Congress or in its internal operations. Voting
qualifications for the House of Representatives, and later the Senate,
were determined by the qualifications required of voters for the lower
206
state houses.
Congress was given plenary power to determine the
times, places, and manners of holding elections; each House was
given the authority to be the judge of its elections, to determine the
207
rules for its proceedings, and to punish and expel members.
202. U.S. CONST. art. II, § 2, cl. 2.
203. Id.
204. U.S. CONST. art. I, § 2, cl. 5; id. § 3, cl. 6; U.S. CONST. art. III, § 1.
205. U.S. CONST. art. I, § 5 (Congress); U.S. CONST. art. II, § 4 (President);
U.S. CONST. art. III, § 1 (Judiciary).
206. U.S. CONST. art. I, § 2, cl. 1.
207. Id. § 4, cl. 1.
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Although the President was given no power over congressional
elections, the converse was not true. Congress was given the power to
count the votes of presidential electors, and if no candidate received
a majority, the election of the President would be made in the House
208
of Representatives with each state having one vote. And, while the
President was given no authority over congressional operations,
Congress was vested with substantial authority over the exercise of
209
power by all three branches in the Necessary and Proper Clause.
4.
Foreign affairs and the war powers
a.
Diplomatic relations
In The Federalist, Hamilton discussed the three presidential powers
over foreign affairs related to diplomacy that are enumerated in
Article II (appointing and receiving ambassadors and other public
ministers, and making treaties) and, following Blackstone’s
210
descriptions, compared them to the royal prerogatives.
The King
had the “sole power” of sending and receiving ambassadors and
211
ministers to and from foreign states.
The President was given the
power to receive foreign ambassadors and ministers, but the
President’s power to appoint ambassadors and ministers to represent
the United States was made subject to the prior approval of the
212
Senate. As part of his power over foreign affairs, the King had the
prerogative of making treaties with foreign states without the
involvement of Parliament. The only check on the making of bad
213
treaties, according to Blackstone, was ministerial impeachment.
The President was given the power to make treaties only with the
214
approval of two-thirds of voting Senators. Thus, for two of the three
foreign policy powers related to diplomacy, the U.S. Constitution
places prior legislative constraints on the President, though the
British Constitution placed no such constraints on the King.
208. U.S. CONST. art. I, § 2, amended by U.S. CONST. amend. XVII; U.S. CONST. art. I,
§ 4; U.S. CONST. art. II, § 2, amended by U.S. CONST. amend. XII; U.S. CONST. art. I, § 5,
cl. 1–2. The Framers anticipated that the House of Representatives would frequently
decide presidential elections, with the electors simply nominating candidates for
President. See RAKOVE, supra note 41, at 265. This expectation proved inaccurate
because of the unexpected—and unwelcome to the Framers—development of the
two-party system.
209. U.S. CONST. art. I, § 8, cl. 8.
210. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 327, 338–39.
211. 1 BLACKSTONE, supra note 25, at *253.
212. U.S. CONST. art. II, § 2, cl. 2; id. § 3.
213. See 1 BLACKSTONE, supra note 25, at *257.
214. U.S. CONST. art. II, § 2, cl. 2.
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297
Hamilton’s treatment of the Article II power to receive foreign
ambassadors and ministers is puzzling. He dismissed it as “more a
215
But the power to receive
matter of dignity than of authority.”
ambassadors and ministers is the power to recognize foreign
216
governments, which is consequential.
This appears to be an
occasion in which Hamilton downplayed presidential power for the
217
sake of political advocacy.
Both Blackstone’s and Hamilton’s treatment of the treaty power is
also problematic. Given the extent of the King’s control over
Parliament, and especially the House of Lords, ministerial
impeachment was not a real check against bad treaties. By the time
Blackstone wrote, it had been fifty years since a minister had been
impeached for negotiating a bad treaty—or for any other political
218
reason—and even the results of that case were ambiguous.
There
was, however, a real parliamentary check against bad treaties.
Although the King could make a treaty, authorizing or implementing
legislation by Parliament was required if the treaty required
219
appropriations or if it changed any domestic legal relationships.
215. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 339.
216. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
§ 1560 (1833); see also 1 TUCKER’S BLACKSTONE, supra note 25, at app. 341.
217. In his 1793 defense of President Washington’s Neutrality Proclamation,
Hamilton (writing as Pacificus) argued that the power to receive ambassadors was the
power to recognize foreign governments. PACIFICUS-HELVIDIUS DEBATES, supra note
33, at 14–15.
218. The last impeachment of ministers for political reasons occurred in 1715,
when, at the instigation of George I, the House of Commons voted articles of
impeachment against three of Anne’s ministers for their roles in negotiating the
1713 Treaty of Utrecht. Two of the ministers fled to France and were attainted in
their absence. The third, the Earl of Oxford, pled as a defense that he was acting
under the instructions of the Queen. The Commons never presented a prosecution.
After two years of imprisonment without trial, the House of Lords acquitted Oxford,
and one of the attainted ministers was allowed to return safely to Britain. TASWELLLANGMEAD, supra note 36, at 416 n.1; see also SIMMS, supra note 59, at 128–29, 180.
As St. George Tucker observed, impeachment was even less likely to be a check on
bad treaties in the United States because it seems practically inconceivable that twothirds of the Senate would vote to convict an official for negotiating a treaty that had
been previously approved by two-thirds of the Senate. TUCKER’S BLACKSTONE, supra
note 25, at app. 335–36.
219. 14 HOLDSWORTH, supra note 35, at 66 (“Though . . . Blackstone assigned no
limitation to the treaty-making power of the Crown, two very definite limitations were
recognized in the eighteenth century . . . . The Crown can make a treaty; but if the
terms of that treaty involve the imposition of any charge upon the subject, or an
alteration in the rules of English Law, they cannot take effect without the sanction of
Parliament.”); see IAN SINCLAIR ET AL., National Treaty Law and Practice: United Kingdom,
in NATIONAL TREATY LAW AND PRACTICE 733–36 (Duncan Hollis ed., 2005); Carlos
Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial
Enforcement of Treaties, 122 HARV. L. REV. 599, 614 (2008).
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220
This rule of English law was generally understood by the Framers,
and Americans were certainly familiar with one example: the 1783
221
Paris Treaty of Peace.
Hamilton followed Blackstone in failing to distinguish between
222
treaty formation and implementation in Britain. This appears to be
another example of Hamilton’s advocacy in maximizing the King’s
powers in comparison to the President’s. But Hamilton did not need
to avoid this distinction because, even if described accurately, the
King’s treaty powers were greater than the President’s. The King had
the unilateral power to enter into treaties affecting war, peace, and
commerce.
The parliamentary check was after-the-fact
implementation. Parliament could limit the effectiveness of a treaty
by denying necessary funding, and it could refuse to pass legislation
that would give the treaty domestic legal effect. But the kingdom’s
obligation under international law to comply with the treaty
remained, and this also provided a powerful political impetus for
223
parliamentary implementation.
By contrast, the U.S. Constitution
requires that treaties negotiated by the President could not have either
international or domestic legal effect without first having obtained
advance approval by a two-thirds vote in the Senate.
The Supremacy Clause classifies treaties as “the supreme Law of the
Land” and directs state judges to enforce them as against contrary
224
state law.
Thus, without the requirement of advance Senatorial
approval, the President could have had the unilateral power both to
bind the country internationally and to change domestic law, which
would have made the President’s treaty power greater than the
220. See Ramsey, Executive Agreements, supra note 11, at 225–28; see also Ware v.
Hylton, 3 U.S. 199, 273–74 (1796) (Iredell, J.) (recognizing that while the King has
unlimited power in making treaties and representing Great Britain in the
international arena, any commitment requiring a change in domestic law could only
be carried out by parliamentary legislation).
221. Definitive Treaty of Peace, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80. Following
the defeat at Yorktown and the fall of Lord North’s government, Parliament enacted
a statute declaring that it shall “be lawful for his Majesty to . . . agree, and conclude . .
. a Peace or a Truce with the said [North American] Colonies . . . any Law, Act or
Acts of Parliament . . . to the contrary . . . notwithstanding” and to “repeal, annul,
and make void, or to suspend . . . the Operation and Effect of any Act or Acts of
Parliament which relate to the said Colonies . . . .” 1782, 22 Geo. 3, c. 46;
see MAITLAND, supra note 27, at 424–26.
222. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 338.
223. See MAITLAND, supra note 27, at 426; see also Ware, 3 U.S. at 274 (Iredell, J.)
(noting that the “law of nations” requires Britain to comply with treaties ratified by
the King and that Parliament has a “moral obligation” to enact enabling legislation).
224. U.S. CONST. art. VI, cl. 2.
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THE LIMITS OF EXECUTIVE POWER
299
225
King’s. The Framers not only avoided this result, but they placed a
stronger legislative constraint on the treaty-making prerogative than
the British did in their requirement of after-the-fact parliamentary
implementation.
Here again we confront the problems of the “missing prerogative.”
The Framers knew that countries entered into agreements other than
226
treaties.
Yet the President’s power to enter into executive
agreements with foreign countries is not enumerated in Article II,
nor is this power specifically given to Congress.
The greater problem is another, and more important, “missing
prerogative.” Blackstone describes the King’s plenary power over
foreign affairs as follows: “With regard to foreign concerns, the king
is the delegate or representative of his people. . . . What is done by
the royal authority, with regard to foreign powers, is an act of the
227
whole nation . . . .” Although the President is given three elements
of the foreign affairs power related to diplomacy (two of which he
must share with the Senate), Article II does not state that the
President holds a general power over foreign affairs. It does not, for
example, incorporate Blackstone’s language that the chief executive
is the “delegate or representative” of the nation in conducting
foreign affairs, or that his action is that “of the whole nation.” This
was not included as an enumerated presidential power in Article II,
nor was it specifically vested in Congress.
Blackstone might be read as asserting that the King maintained
entire control of foreign affairs, but Parliament had already assumed
228
229
the power to regulate foreign commerce, criminalize piracy, and
225. The Supreme Court has not followed the literal language of the Supremacy
Clause as it relates to the effect of treaties on domestic law. See cases cited infra note
385 and accompanying text.
226. Vattel, whom the Framers frequently relied upon, had distinguished between
treaties and agreements, and his choice of words may have influenced the drafting of
Section 10 of Article I, which prohibits the states from entering into any “Treaty” or
“Agreement or Compact” with any foreign power. Duncan B. Hollis, Unpacking the
Compact Clause, 88 TEX. L. REV. (forthcoming 2009); see also Myres S. McDougal &
Asher Lans, Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy, 54 YALE L.J. 181, 228 (1945) (citing
examples of non-treaty international agreements concluded under the Articles of
Confederation).
227. 1 BLACKSTONE, supra note 25, at *252.
228. See 10 HOLDSWORTH, supra note 35, at 401–02. George III claimed the right
to institute embargoes while the country was at peace, and did so by proclamation in
1766. His ministers later conceded that this proclamation infringed on the authority
of Parliament to regulate foreign commerce, and an act of indemnity was passed. Id.
at 365, 401.
229. Piracy Act, 1698, 11 Will. 3, c. 7.
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231
naturalize aliens.
All of these powers were vested in Congress.
The King’s prerogatives included control over immigration; he could
give foreigners safe-conduct passes to enter England and could
232
prescribe (and proscribe) their conduct within the country.
The
King also had the prerogative of making foreigners into denizens—
that is, an alien could be given certain rights that English citizens
233
possessed, such as the right to purchase and hold property.
The
immigration and denizen prerogatives were not given to the
President. Instead, these powers were subsumed in the naturalization
234
power.
b.
The military and war
There are no powers more important than control over the military
and the decision to engage in war. Blackstone described the King as
“the generalissimo, or the first in military command, within the
235
kingdom” and stated that this prerogative included “the sole
236
prerogative of making war and peace.” The King had the power to
237
declare war, which meant that he could invade another country
238
without parliamentary authority.
He could also prosecute
undeclared wars and had the prerogative of granting letters of
239
marque and reprisal.
According to Blackstone, the King had the
sole powers of raising and regulating the army, navy, and militia,
240
including forts and places of strength.
The actual relationship of the Crown and Parliament with respect
to the military was more complex than Blackstone outlines.
Following the Restoration, an Act of Parliament recognized the
plenary power of the King for the supreme government and
command of the army, navy, and militia, as well as forts and places of
strength, “and that both or either of the Houses of Parliament cannot
241
nor ought to pretend to the same.”
But Parliament passed many
statutes regulating the army, navy, and militia both before and after
230.
231.
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
1 BLACKSTONE, supra note 25, at *289.
U.S. CONST. art. I, § 8, cl. 3, 4, 10.
1 BLACKSTONE, supra note 25, at *259.
Id. at *260; see MAITLAND, supra note 27, at 427–28.
See U.S. CONST. art. I, § 8, cl. 4, 18.
1 BLACKSTONE, supra note 25, at *262.
Id. at *257.
Id. at *258.
See MAITLAND, supra note 27, at 423–24.
1 BLACKSTONE, supra note 25, at *258–59.
Id. at *262–63.
1661, 13 Car. 2, c. 6.
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301
that statute. The Petition of Right of 1628 declared that the
quartering of soldiers in private houses in times of peace was illegal;
it also prohibited trials of civilians by courts martial within England
and protested against the trial by courts martial of members of the
242
military for crimes committed within the country.
Except in cases
of invasion, the impressment of troops into the army (but not the
243
navy) and forcible service outside the country were made illegal.
Enacted in response to James II’s creation of an army that had
threatened to produce military despotism, the English Bill of Rights
of 1689 prohibited the King from raising or keeping a standing army
244
in time of peace without the authority of Parliament, although he
245
retained the prerogative of raising an army in time of war.
Subsequent “Number of the Land Forces” and “Mutiny Acts”
authorized the King to raise armies in times of peace, but these
246
statutes and their appropriations had to be renewed annually.
A 1702 statute gave the King the power to issue Articles of War, but a
247
1717 statute recognized the same power in Parliament. Through a
succession of statutes, soldiers were placed under a special legal code,
where they were subject to discipline and trials by courts martial and
248
exempted from the jurisdiction of the common law courts.
Parliament enacted a statute in 1757 that rendered all men between
the ages of eighteen and fifty liable to serve, or to find substitutes, as
249
privates in the militia.
In case of rebellion or invasion, the King
could call up the militia, appoint officers, and employ it as part of the
250
army. “From this account of the Crown’s prerogatives in relation to
the army and the navy, it is clear that, when Blackstone wrote, they
had been considerably added to, and to some extent controlled, by
251
Parliament.”
242. 1628, 3 Car. 1, c. 1.
243. 1640, 16 Car. 1, c. 28 (Preamble). Subsequent statutes exempted the
disorderly, the idle, and criminal prisoners, who could be forcibly sent abroad—
exemptions that were used quite liberally. KEIR, supra note 51, at 305–07.
244. 1688, 1 W. & M. Sess. 2, c. 2, § 6.
245. See MAITLAND, supra note 27, at 328.
246. See 10 HOLDSWORTH, supra note 35, at 377–82.
247. Id.
248. These statutes therefore modified the Petition of Right and took away
jurisdiction from the common law courts. See KEIR, supra note 51, at 305–07;
MAITLAND, supra note 27, at 328–30. This history is recounted in Loving v. United
States, 517 U.S. 748, 760–66 (1996).
249. MAITLAND, supra note 27, at 456.
250. Id. at 456–57.
251. 10 HOLDSWORTH, supra note 35, at 382.
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George III’s use of the military and war powers against America was
condemned in eight grievances in the Declaration of
252
Independence, and some of the British statutory provisions that
253
related to military power were put into the U.S. Constitution. The
Framers designated the President as Commander-in-Chief of the
254
armed forces, which guaranteed civilian control over the military.
Otherwise, the Framers vested all of the royal and legislative
255
prerogatives concerning the military and war powers in Congress,
which meant, as Hamilton emphasized, that the President’s authority
“would be nominally the same with that of the King of Great-Britain,
256
but in substance much inferior to it.”
One of the prerogative powers transferred to Congress now looks
quaint but was, at the time of the Constitutional Convention,
important and provides an insight into the Framers’ treatment of the
presidency.
Although the President was declared to be the
Commander-in-Chief of “the Militia of the several States, when called
257
into the actual Service of the United States,” he was not given the
power to call the militia into federal service. Instead, Congress was
vested with the power “[t]o provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel
258
Invasions.” Inasmuch as Congress did not have to create a standing
army—and there was substantial opposition to its doing so—the
militia could be the first line of defense in cases of military
emergencies that could threaten the nation. Of course, Congress
259
could delegate that power to the President (as it did in 1795), but
252. THE DECLARATION OF INDEPENDENCE ¶¶ 11–12, 14–15, 23–26 (U.S. 1776).
253. See U.S. CONST. art. I, § 8, cl. 12 (limiting the use of appropriations for raising
and supporting the army to two years); U.S. CONST. amend. III (prohibiting
quartering soldiers in private homes during times of peace); U.S. CONST. amend. V
(exempting cases arising in the military from presentment or indictment by grand
juries).
254. U.S. CONST. art. II, § 2 cl. 1.
255. U.S. CONST. art. I, § 8, cl. 3 (regulate foreign commerce); id. § 8, cl. 11
(declare war, grant letters of marque and reprisal, and make rules concerning
captures); id. § 8, cl. 12 (raise and support an army); id. § 8, cl. 13 (provide and
maintain a navy); id. § 8, cl. 14 (make rules for the government and regulation of the
military); id. § 8, cl. 15 (provide for calling forth the militia to execute federal laws,
suppress insurrections, and repel invasions); id. § 8, cl. 16 (provide for organizing,
arming, and disciplining the militia and regulating it when called into federal
service).
256. THE FEDERALIST No. 69 (Alexander Hamilton), supra note 3, at 336.
Hamilton’s description of the President as Commander-in-Chief was that “[i]t 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 . . . .” Id.
257. U.S. CONST. art. II, § 2, cl. 2.
258. U.S. CONST. art. I, § 8, cl. 15.
259. See Militia Act of 1795, ch. 36, § 10, 1 Stat. 424 (1795). This statute provided,
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303
260
that would be a matter of legislative choice.
The constitutional
261
authority for dealing with such emergencies was vested in Congress.
What other checks could there have been to prevent presidential
abuse of these most dangerous powers? Blackstone suggested that
ministerial impeachment was a check on the King’s abuse of his
262
military and war powers. This suggestion seems as ineffective here
263
as in the case of bad treaties.
The real parliamentary check was
control over appropriations for the military, and these had to be
264
renewed annually.
In theory, this appropriations check might have provided a
prospective limitation on the King’s war powers because Parliament
had to decide annually the extent of military force that the King
could control. The Framers followed this practice by imposing a twoyear time limit on appropriations for the armies, which requires every
265
new Congress to revisit this funding. But in Britain, this check had
not operated effectively. The need to have a funded, permanent,
standing army was demonstrated by the fact that England was at war
as much as it was at peace during the eighteenth century. In the
ninety-nine years between the Glorious Revolution and the
Constitutional Convention, England had fought six wars over forty266
eight years. Moreover, the appropriations check suffered from the
“[W]henever the United States shall be invaded, or be in imminent danger
of invasion from any foreign nation or Indian tribe, it shall be lawful for the
President of the United States to call forth such number of the militia of the
State or States most convenient to the place of danger, or scene of action, as
he may judge necessary to repel such invasion, and to issue his order for that
purpose to such officer or officers of the militia as he shall think proper.”
Id.
260. The Supreme Court upheld this delegation of power and also held that,
under the 1795 statute, the decision as to when an emergency arises necessitating
that the militia be called was for the President to make. Martin v. Mott, 25 U.S. 19,
29–30 (1827).
261. See Stephen I. Vladeck, Note, Emergency Powers and the Militia Acts, 114 YALE
L.J. 149, 157–58 (2004).
262. See 1 BLACKSTONE, supra note 25, at *258.
263. From the Glorious Revolution through the Constitutional Convention, no
British minister was impeached for abusing the military or war powers. See discussion
supra note 172. If any British minister was deserving of impeachment, it was Lord
North for his leading role in losing the American colonies. Although the House of
Commons forced his resignation, he was not impeached. See discussion supra notes
181 & 221 and accompanying text.
264. See discussion supra notes 244–246 and accompanying text.
265. U.S. CONST. art. I, § 8, cl. 12.
266. England fought the War of the Grand Alliance (1688–1697), the War of the
Spanish Succession (1702–1713), the War of the Quadruple Alliance (1718–1720),
the War of the Austrian Succession (1740–1748), the Seven Years War (1754–1763),
and the War of American Independence (1775–1783). See generally SIMMS, supra note
59 (describing each of these wars in detail).
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same after-the-fact defect as the requirement that legislators
implement treaties. If the King, with the army and navy at his
disposal, went to war with another country, there would be enormous
political pressure on Parliament to support that decision. Blackstone
recognized as much. In emphasizing that the King’s real power was
much greater than his nominal legal power, Blackstone pointed to
two forces. The first, discussed above, was the King’s prerogative to
make appointments, create offices, and dispense honors and
privileges. The other was the King’s control over the military, which
267
Blackstone considered part of the King’s “domestic” prerogatives :
[T]here is still another newly acquired branch of power; and that
is, not the influence only, but the force of a disciplined army: paid
indeed ultimately by the people, but immediately by the crown;
raised by the crown, officered by the crown, commanded by the
crown. They are kept on foot it is true only from year to year, and
that by the power of parliament: but during that year they must, by
the nature of our constitution, if raised at all, be at the absolute
disposal of the crown. And there need but few words to
demonstrate how great a trust is thereby reposed in the prince by
his people. A trust, that is more than equivalent to a thousand little
268
troublesome prerogatives.
A power based on “trust” that is greater than “a thousand little
troublesome prerogatives!” These words must have made chilling
reading for Americans who had fought a war of independence—a war
they blamed on George III. This blame was mirrored by the
opponents of royal dominance in London who saw the King’s military
269
assault on America as a threat to liberty in England.
With respect to the appointments power, another prerogative that
had been greatly abused by George III and his predecessors, the U.S.
Constitution imposed the check of prior Senatorial approval. The
same technique of requiring prior Senatorial approval was used to
constrain the prerogatives of making treaties and sending
267. 1 BLACKSTONE, supra note 25, at *261–63.
268. Id. at *335–36; see also 10 HOLDSWORTH, supra note 35, at 418, 577–81 (stating
that the King’s control over the military was a substantial factor in his ability to hold
sway over governmental policy).
269. SIMMS, supra note 59, at 594 (“[T]he attack on American freedom was of a
piece with the attack on their own rights. The Earl of Rockingham, a Whig grandee,
feared in June 1775 that ‘If an arbitrary military force is to govern one part of this
large Empire . . . it will not be long before the whole of this Empire will be brought
under a similar thraldom.’ As the Whig leader Charles James Fox put it towards the
end of the conflict: ‘if the ministry had succeeded in their first scheme on the
liberties of America, the liberties of this country would have been at an end.’”
(quoting Parliamentary debates).
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305
ambassadors and ministers abroad to represent the United States
diplomatically. Greater protection was necessary against the abuse of
the royal military and war-making prerogatives, which were not only
exceptionally more dangerous in principle but also had proven
disastrous in practice. To provide greater protection, the Framers
removed these powers from the President almost in their entirety and
vested them in the Congress as plenary powers.
5.
Commerce
270
Blackstone called the King the “arbiter of commerce,” and the
King’s prerogatives in this area included granting monopoly patents
271
of limited time periods for manufacturing inventions, chartering
272
corporations, establishing public markets, regulating weights and
measures, and coining money as well as determining its value and the
273
value of foreign currency.
None of these prerogatives were
included in Article II. The general power to regulate interstate
commerce, along with most of the subsidiary powers—patents,
weights and measures, coining and valuing money and foreign
274
currency—were vested in Congress.
The other two subsidiary
powers—establishing markets and corporations—were presumably
left to the states, or to Congress, when necessary and proper to
275
execute its powers over interstate and foreign commerce.
6.
An overview
The U.S. Constitution effected a wholesale restructuring of
governmental power from its British antecedent. The reallocation of
executive and legislative powers as between the British and U.S.
Constitutions may be summarized as follows:
No power held by Parliament was given to the President. Most of
the prerogatives that had been exercised by the King, in whole or in
270. 1 BLACKSTONE, supra note 25, at *273–74.
271. The Crown’s general prerogative to grant monopolies was eliminated by the
Statute on Monopolies. 1624, 21 Jac. 1, c. 3. However, manufacturing inventions
were exempted from the statute, id. § 6, and this became the foundation for the
development of modern patent law. See Adam Mossoff, Rethinking the Development of
Patents: An Intellectual History, 1550–1800, 52 HASTINGS L.J. 1255, 1271–73 (2001).
272. 1 BLACKSTONE, supra note 25, at *472–74.
273. Id. at *274–79. The Crown’s prerogatives over corporations, weights and
measures, and the value of money had been diluted because Parliament had
frequently legislated on these subjects. 10 HOLDSWORTH, supra note 35, at 402–11;
see also Robert G. Natelson, Paper Money and the Original Understanding of the Coinage
Clause, 31 HARV. J.L. & PUB. POL’Y 1017, 1028 (2008).
274. U.S. CONST. art. I, § 8, cl. 3, 5, 8.
275. See McCulloch v. Maryland, 17 U.S. 316, 410–11 (1819).
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substantial part, were transferred in their entireties to Congress.
Eighteen royal prerogatives were removed entirely from the
276
Although we tend to view
Executive and delegated to Congress.
Article I, Section 8 of the Constitution in terms of federalism, that
section should also be viewed as representing decisions that reflect
277
the allocation of power between the President and Congress —
or, more specifically, a massive transfer of previously held executive
power to the legislative branch.
Six other prerogatives were delegated to the President, but in
substantially limited ways. The Commander-in-Chief power was
limited by vesting the war powers and substantial control over the
military in Congress. The treaty and appointments powers (including
the appointment of ambassadors and other public ministers) were
made subject to the prior approval of the Senate, while the veto
power was subject to congressional override. The pardoning power
could be applied only to a relatively small percentage of criminal
cases. Only the power to receive foreign ambassadors and ministers
was left intact in the Executive, and no presidential power is greater
than its royal counterpart.
The royal prerogatives over the legislature were eliminated. The
King’s prerogative to appoint members to one of the houses of the
legislature was not replicated in the U.S. Constitution nor were his
prerogatives to prorogue or dissolve the legislature. Moreover, the
President was stripped of authority over congressional elections and
the internal operations of Congress, and he could not remove any
member of Congress or the Judiciary. On the other hand, Congress
was given the power to expel its members and remove members of
the other two branches, including the President, albeit through the
278
cumbersome and questionable method of impeachment. Congress
276. These include fourteen of the twenty-five specific plenary powers that are
vested in Congress in Article I, Section 8: (1) regulating interstate commerce;
(2) coining money; (3) regulating the value of money and of foreign currency;
(4) fixing the standards of weights and measures; (5) granting patents; (6) creating
the lower federal courts; (7) declaring war; (8) granting letters of marque and
reprisal; (9) making rules concerning captures; (10) raising and supporting the
armies; (11) providing and maintaining a navy; (12) making rules for the
government and regulation of the army and navy; (13) providing for federalizing the
militia; and (14) providing for organizing, arming, and disciplining the militia.
In addition, four other royal prerogatives—(1) creating offices; (2) giving out
pensions; (3) controlling immigration; and (4) determining the rights of aliens—
were also vested in Congress through the Necessary and Proper Clause.
277. See 1 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE
HISTORY OF THE UNITED STATES 428–29 (1953).
278. Under the U.S. Constitution, the only penalties for impeachment convictions
are removal and disqualification from holding federal office, although the removed
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THE LIMITS OF EXECUTIVE POWER
307
was also given the authority to regulate and, in certain circumstances,
decide presidential elections.
And perhaps most importantly,
Congress was vested with a broad power over the creation and
operations of the executive branch by the Necessary and Proper
279
Clause.
The U.S. Constitution adopted supplementary measures to contain
presidential power by including numerous proscriptions from
English laws. Some of these proscriptions were aimed at preserving
the powers of the legislative branch, while others were included to
guarantee civil liberties. At least sixteen of these proscriptions are
encoded in the U.S. Constitution, some particularly directed at the
280
281
President and others broadened as guarantees against the entire
282
government.
official can be subsequently tried in the courts. U.S. CONST. art. 1, § 3, cl. 7. These
penalties reflect a departure from the British system in which the impeachment trial
also included a criminal proceeding—a convicted minister could lose not only his
office, but also his head. Separating removal from a criminal proceeding might have
made impeachment more attractive as a means of removing government officials
from office. But impeachment in the United States has been ineffective as a removal
device, partly because of the seminal acquittals (each by one vote) of Justice Samuel
Chase and President Andrew Johnson, but more importantly, because of the supermajority requirement for conviction in the Senate. Id. § 3, cl. 6. Even before the
House of Representatives voted articles of impeachment against Justice Chase,
St. George Tucker warned that the system was fundamentally flawed by the choice of
the Senate as the trial court for impeachment. He called this provision of the
Constitution “the most defective and unsound, of any part of the fabric.” TUCKER’S
BLACKSTONE, supra note 25, at app. 338.
279. Id. § 8, cl. 18.
280. These proscriptions include: the requirements that no money can be drawn
on the Treasury except pursuant to specific appropriations, that military
appropriations last for only two years, and that all money bills cannot originate
outside of the House of Representatives; the bans on dual office-holding by members
of Congress and on titles of nobility; and the prohibitions of arresting members of
Congress during legislative sessions and prosecuting them for legislative speech and
debate.
281. These guarantees include: the rights of due process, habeas corpus and jury
trials, as well as the right to petition for redress of grievances; the requirement that
there must be two witnesses to treasonous acts; the assurances that soldiers will not
be quartered in private homes in times of peace and that excessive bail and cruel and
unusual punishment will not be imposed; and the requirement of warrants based on
probable cause for searches and arrests.
282. Despite the massive reallocation of, and constraints upon, executive power,
Saikrishna Prakash argues that presidential powers are greater than the royal
prerogatives in that the former are constitutionally entrenched, while the latter
could be changed by “ordinary legislation.” Saikrishna Prakash, The Essential Meaning
of Executive Power, 2003 U. ILL. L. REV. 701, 717–18 (2003). But under the British
Constitution, no legislation affecting a prerogative could become law without the
assent of the King, while the President’s Article II powers can be changed through an
amendment process in which he has no involvement. Prakash also argues that the
King could not personally execute the laws, while the President can. Id. But the
King personally exercised such power by directing all prosecutions, which were
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The prerogatives that had been discredited in England were
naturally rejected by the Framers. The powers to tax and legislate,
which the Stuart monarchs had attempted to assume, were vested
entirely in Congress. The royal prerogative to suspend or dispense
with the laws, made illegal by the English Bill of Rights of 1689, was
negated by the President’s duty to “take Care that the laws be
faithfully executed.”
II. THEORIES OF PRESIDENTIAL POWER
A. The Vesting Clause
“The executive Power shall be vested in a President of the United
283
States . . . .”
The delegates to the Constitutional Convention
engaged in a contentious debate over whether there should be a
single or plural Executive and whether the Executive should be
284
constrained by a council. The Vesting Clause makes the important
statement that the executive power is delegated to a single person
called the President of the United States.
But what is the scope of “[t]he executive Power?” Following the
structure of Article I for congressional powers, Article II lists the
285
President’s enumerated powers.
But the proposition that the
brought in his name, and various kings of England personally led armies into battle,
the last example being George II. SIMMS, supra note 59, at 313–15.
Steven Calabresi argues that the English monarchy was in fact “part of the model
upon which the presidency was built,” with the Framers “clearly reject[ing] executive
tyranny of the kind exercised by George III . . . but . . . favor[ing] a president who
was a forceful but constitutionally constrained executive like William III.” Steven G.
Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor
Ackerman, 73 U. CHI. L. REV. 469, 481 (2006). Calabresi’s claim confuses power with
prudence. The prerogative powers and legislative constraints under which William
III and George III operated were substantially the same (actually, William III had
somewhat more legal power). A good lesson that the Framers might have drawn was
that giving all chief executives the powers of a William III could eventually produce a
tyrant like a George III.
283. Id. § 1, cl. 1.
284. See generally BOWEN, supra note 38, at 55–62 (discussing the heated debate
surrounding the structure of the executive).
285. The legislative Vesting Clause states that “[a]ll legislative Powers herein granted
shall be vested in a Congress of the United States. . . .” U.S. CONST. art. I, § 1
(emphasis added). The phrase “herein granted” is not contained in the executive
Vesting Clause. This appears to be a difference in form and not substance.
As Justice McReynolds stated in his dissent in Myers v. United States, 272 U.S. 52,
230–31 (1925):
I hardly suppose, if the words “herein granted” had not been inserted,
Congress would possess all legislative power of Parliament, or of some
theoretical government, except when specifically limited by other provisions.
Such an omission would not have overthrown the whole theory of a
government of definite powers, and destroyed the meaning and effect of the
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President has non-enumerated powers residing in the Vesting Clause
has a long pedigree. In 1793, only five years after he minimized the
scope of presidential power when writing as Publius in The Federalist,
Alexander Hamilton did an about-face in justifying President
286
Washington’s controversial Proclamation of Neutrality.
Writing as
Pacificus, Hamilton defended the President’s authority to issue the
Proclamation without an enabling congressional statute.
Hamilton made two arguments justifying the Proclamation. The
narrow argument was that the President’s duty to faithfully execute
the law means that he must interpret treaties to determine the legal
287
relationship of the United States to other countries. In issuing the
Proclamation, the President was merely advising the government and
the public that he interpreted the treaties as establishing a neutral
legal condition of the United States with respect to the participants in
288
the European war.
Hamilton’s broader argument was that the President has a general
power over foreign affairs derived from the Vesting Clause.
According to Hamilton, the Vesting Clause gave the President the
entire executive power except as specifically restricted in the
289
Constitution.
Thus, the enumerated powers in Article II were
“exemplary,” and not exclusive, of a broader range of executive
power vested in the President. This argument was subsequently
290
endorsed by the Supreme Court in Myers v. United States, but that
decision was qualified, if not eviscerated, in Humphrey’s Executor v.
291
292
United States and Morrison v. Olson. More recently, this argument
has been advanced by scholars as the basis for plenary presidential
particular enumeration which necessarily explains and limits the general
phrase. When this article went to the committee on style it provided,
“The legislative power shall be vested in a Congress,” etc. The words “herein
granted” were inserted by that committee September 12, and there is
nothing whatever to indicate that anybody supposed this radically changed
what already had been agreed upon. The same general form of words was
used as to the legislative, executive, and judicial powers in the draft referred
to the committee on style. The difference between the reported and final
draft was treated as unimportant.
286. GEORGE WASHINGTON, PROCLAMATION OF NEUTRALITY OF 1793, reprinted in
32 THE WRITINGS OF GEORGE WASHINGTON 430–31 (John Fitzpatrick & David
Matteson eds., 1939). In The Federalist, Hamilton had not suggested that the Vesting
Clause was an independent or residual source of presidential power.
287. PACIFICUS-HELVIDIUS DEBATES, supra note 33, at 16.
288. Id. at 16–17. Justice Story made this argument to justify the Neutrality
Proclamation. 3 STORY, supra note 216, § 1564.
289. PACIFICUS-HELVIDIUS DEBATES, supra note 33, at 12–13.
290. 272 U.S. 52, 117–18, 128–31, 163–64 (1926).
291. 295 U.S. 602, 632 (1935).
292. 487 U.S. 654, 696 (1988).
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power in such areas as foreign affairs, law enforcement, and the
293
removal of executive officials.
If correct, this theory would make
some, if not all, of the “missing prerogatives”—and whatever other
powers are deemed “executive” in nature—plenary powers of the
President.
Based on the analysis in the previous Part of this Article, this
argument is quite implausible. The extent to which the Framers
limited and constrained executive power and placed numerous
proscriptions on its exercise strongly indicates that the Vesting Clause
is not a residual source of plenary powers in the presidency. The
powers delegated to the President in Article II do not suggest a
residue of unspecified powers that can be characterized as
“executive” in nature. What they do suggest is that most of the royal
prerogatives were vested in Congress, not in the President; that those
few prerogatives that were delegated to the President were subject to
substantial legislative constraints and constitutional prohibitions; and
that no presidential power is greater than its royal prerogative
counterpart, with only a single one being the same. Similarly, the fact
that most of the enumerated powers in Article II are limited by
legislative constraints is not grounds for viewing such constraints as
exceptions to unspecified and unlimited powers that can be
characterized as “executive.” Rather, the enumerated powers in
Article II are carefully constructed exceptions to the mass of
prerogative powers that were vested entirely in Congress, and they are
additionally subject to the constitutional proscriptions on executive
action that restrained the royal prerogatives. And if indeed the
Vesting Clause were a source of plenary executive powers, a bizarre
result would follow—that presidential powers listed in the
Constitution are limited by legislative constraints, but unspecified
powers said to reside in the Vesting Clause are not so limited.
B. A Presidential “Completion Power”
In a recent article, Jack Goldsmith and John F. Manning argue that
there is an implied executive “completion power,” which enables the
President to prescribe means that are necessary to execute a
legislative scheme, and thereby change domestic law, even in the
294
absence of congressional authorization to do so. The authors draw
upon Chief Justice Vinson’s dissent in the Steel Seizure Case. Joined by
293. See sources cited supra note 11.
294. Goldsmith & Manning, supra note 12, at 2282.
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two other Justices in the dissent, Vinson relied on the Take Care
295
Clause as the source of this implied power.
He pointed to
numerous appropriations and regulatory statutes that effectively
296
authorized the United States military actions in Korea. He argued
that this statutory scheme would be incapable of execution if, in a
labor union strike, the steel mills were shut down and the production
297
of war materials were suspended. Thus, in order to comply with the
duty to ensure that the statutory scheme was executed, the President
should have the power to seize the steel mills and keep them in
operation, even though that action had not been authorized by
298
Congress.
Goldsmith and Manning strengthen this argument by
pointing to the discretion that the President necessarily possesses in
299
deciding how and when to execute the laws.
The Steel Seizure Case illustrates why the “completion” approach is
flawed. President Truman’s executive order directing the seizure of
the steel mills was the twentieth-century equivalent of an illegal royal
proclamation. With the statutes available to him, Truman had two
means that could have kept the steel mills in operation. He could
have sought an injunction for an eighty-day “cooling off” period
300
under the Taft-Hartley Act.
He did not, presumably because the
labor injunction is detested by unions—one of the reasons Truman
301
had vetoed Taft-Hartley.
Alternatively, Truman could have gone
through the seizure procedures specified in the Selective Service Act
302
303
of 1948, but those procedures were time-consuming.
President Truman directed the seizure of the steel mills without
any statutory authority because he found the existing statutes
inadequate according to his own policies; he chose to supplement the
statutes with the policy that he preferred. In so doing, he infringed
upon the property rights of the owners and thereby changed existing
legal rights and obligations. This looks remarkably like the misuse of
295. Id. (citing Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343
U.S. 579, 667 (1958) (Vinson, C.J., dissenting)).
296. Steel Seizure Case, 343 U.S. at 669–72 (Vinson, C.J., dissenting).
297. Id. at 672.
298. Id. at 672, 678–80, 700–04.
299. Goldsmith & Manning, supra note 12, at 2293–95.
300. Steel Seizure Case, 343 U.S. at 657–58 (Burton, J., concurring).
301. See MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF
PRESIDENTIAL POWER 75–78 (1994); Neal Devins & Louis Fisher, The Steel Seizure Case:
One of a Kind?, 19 CONST. COMMENT. 63, 66 (2002).
302. 62 Stat. 625. Section 18 of that Act authorizes the President to take
possession of a plant or other facility that does not fill defense orders if those orders
have been placed in a manner prescribed by the statute.
303. See MARCUS, supra note 301, at 77–78.
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304
proclamations by the early Stuart monarchs.
The need for
executive discretion in the enforcement of the laws was well
understood in seventeenth-century England, and kings appropriately
issued proclamations announcing to their government and to the
305
public how and when they would enforce statutes.
But the early
Stuarts crossed the line when they issued proclamations that changed
domestic law or imposed new legal obligations. This is what Truman
306
did.
It is not the function of the executive to “improve” the laws without
authorization from Congress, no matter how sensible the
307
improvement might appear.
A presidential “completion power”
that changes domestic legal relationships by imposing new legal
obligations raises the same objections to the usurping of legislative
power by the executive that were recognized 400 years ago in the
308
Case of Proclamations.
Vinson also argued that the President was faced with an
309
emergency. But the threat of a strike had been present for almost
304. See discussion supra notes 42–47, 61, 64–65 and accompanying text.
305. See discussion supra notes 44, 64–65 and accompanying text.
306. President Washington’s 1793 Proclamation of Neutrality warned that anyone
who violated its admonitions would be subject to criminal penalties. Inasmuch as no
statute of Congress made violations of neutrality a crime (that would happen the
next year), it would appear that Washington was adding legal obligations through
executive fiat. But the courts had not yet rejected enforcement of non-statutory
federal common law crimes. See United States v. Hudson, 11 U.S. 32, 33 (1812)
(holding that federal courts could not enforce prosecutions for common law crimes
in the absence of congressional enactments). When Henfield was indicted for
violating the Neutrality Proclamation, three Supreme Court Justices (Jay, Wilson, and
Iredell) all expressed the view that a private person who violated the law of nations
committed a federal crime, even in the absence of a statute. Henfield’s Case,
11 F. Cas. 1099 (C.C.D. Pa. 1793) (No. 6360) (Jay, C.J.); id. at 1120 (Wilson, Iredell,
Peters, JJ.). Despite a strong pro-prosecution charge to the jury by Wilson, Henfield
was acquitted.
307. In his Steel Seizure Case concurrence, Justice Clark relied on Little v. Barreme
(Flying Fish Case), 6 U.S. 170 (1804). Congress had passed a statute authorizing the
recapture of seized American ships that were heading to France. The Flying Fish was
seized, on the instructions of the President, while heading away from France.
In specifying the direction that the ship was to be heading before capture would be
authorized, the law made no apparent sense. Upholding the seizure could have
arguably strengthened the legislative policy. But, whether by inadvertence or for
some reason of policy, the law was written explicitly; therefore, Marshall held that the
seizure was unlawful. See also Gelston v. Hoyt, 16 U.S. 246, 330–33 (1818) (holding
that the President could not authorize revenue officers to make seizures of vessels for
violations of neutrality because the statute only authorized such seizures by the
military); Orono v. Franklin, 18 F. Cas. 830 (C.C.D. Mass. 1812) (No. 10,585) (Story,
J.) (holding that the President had statutory authority to suspend the
Non-Intercourse Act but no power to revive it).
308. See case summary supra text accompanying notes 45–47.
309. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579,
678–80 (1958) (Vinson, C.J., dissenting).
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four months, which gave Truman more than enough time to seek
congressional authorization to seize the mills if necessary. Again, the
history of a discredited royal prerogative is instructive. Charles I
justified the ship-money impositions as a necessary incident of his war
powers, but he could have sought that funding by calling Parliament
310
into session.
In bypassing Parliament, the King created his own
emergency and then justified the assumption of legislative power as
necessary to meet the emergency. This idea should have been laid to
rest when the House of Lords vacated the decisions in the Ship-Money
311
Case and Parliament declared the ship-money impositions illegal.
C. Implied Presidential Powers
We return to the problem of the “missing prerogatives.” The
Framers plainly anticipated that the President would vigorously
310. See discussion supra notes 50–63 and accompanying text.
311. The text of the U.S. Constitution is inconsistent with the notion of inherent
emergency power in the Executive. There are two provisions dealing with
emergencies: (1) the power to call forth the militia “to execute the Laws of the
Union, suppress Insurrections and repel Invasions,” U.S. CONST. art. I, § 8, cl. 15, and
(2) the power to suspend the writ of habeas corpus “when in Cases of Rebellion or
Invasion the public Safety may require it,” id. § 9, cl. 2. Both of these powers are
vested in Congress. See Vladeck, supra note 261, at 152–53.
Much has been written about President Lincoln’s assumptions of congressional
military powers and funding of the military at the beginning of the Civil War in
violation of Art. I, § 9, cl. 7. A fractured Congress had adjourned before the attack
on Fort Sumter in April 1861. Because congressional elections were being held in
one-third of the loyal states between March and June, a functioning Congress could
not have been assembled until the special session called by Lincoln for July 4, 1861.
See JAMES M. MCPHERSON, TRIED BY WAR: ABRAHAM LINCOLN AS COMMANDER IN CHIEF
23–24 (2008) (explaining that Lincoln’s decision to act under his Commander-inChief mandate, but without congressional approval, was “a consequence of the
electoral calendar at the time” and “was not the result of [his] desire to prosecute the
war without Congressional interference”). Unlike the situation facing any previous
or subsequent president, Lincoln could not have sought congressional authorization
for extraordinary measures necessary to execute the laws of the United States.
Lincoln acted in effect as a default surrogate “caretaker” until Congress convened.
Congress then enacted a law that “approved and in all respects legalized and made
valid” all of Lincoln’s actions “respecting the army and navy . . . as if they had been
issued and done under the previous express authority of . . . Congress . . . .” Act of
Aug. 6, 1861, ch. 63, § 3, 12 Stat. 326. In my view, that statute settled the
constitutionality of all of Lincoln’s war measures up to that point, except the
suspension of habeas corpus, which Congress did not ratify.
Lincoln’s actions in the spring of 1861, when Congress could not act, are
sui generis, and, barring the decapitation of Congress, will remain so. They will
continue to be the subject of academic interest and controversy, but their
precedential value is nil. Congress has passed a number of statutes authorizing the
President to deal with emergencies and is capable of meeting and acting virtually at a
moment’s notice. For example, the Authorization for Use of Military Force, Pub. L.
No. 107-40, 115 Stat. 224 (2001), was enacted only three days after the September
11th attacks.
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313
enforce the laws and play a major role in foreign relations. They
also contemplated that the President would issue proclamations (now
called executive orders) that instructed subordinates in the executive
branch and the public on how his discretion would be exercised in
314
enforcing the laws.
But if these powers do not derive from the
Vesting Clause, or from a presidential “completion power,” then from
what source are they derived, and what is their scope?
We can provide an answer by applying Marshall’s structural
315
approach in McCulloch v. Maryland
to the powers that are
enumerated in Article II. It is true that Article II does not contain a
Necessary and Proper Clause, but Marshall’s argument in McCulloch
was that, even without that clause, Congress would have a broad
316
choice of the means by which to effectuate its enumerated powers.
According to Marshall, the Necessary and Proper Clause served two
functions: it confirmed the existence of implied powers; and, by
being written as an enumerated grant of, rather than a restriction on,
legislative power, it also confirmed that Congress has an extensive
317
range of means by which it may effectuate governmental powers.
Marshall’s analysis can be applied to Article II. The President’s
duty to take care that the laws are “faithfully” executed necessarily
implies the existence of a power to enforce the laws, including
directing his subordinates on how that enforcement should be
conducted. Similarly, a more general foreign affairs power can be
implied from the enumerated powers to make treaties and to receive
312. See, e.g., 1 FEDERAL CONVENTION, supra note 130, at 65–66 (James Wilson’s
statement in the Constitutional Convention) (“He did not consider the Prerogatives
of the British Monarch as a proper guide in defining the Executive powers. . . . The
only powers he conceived strictly Executive were those of executing the laws, and
appointing officers, not (appertaining to and) appointed by the Legislature.”).
313. See, e.g., THE FEDERALIST No. 72 (Alexander Hamilton), supra note 3, at 352
(stating that the President would be responsible for “[t]he actual conduct of foreign
negotiations”); THE FEDERALIST No. 64 (John Jay), supra note 3, at 314 (“It seldom
happens in the negotiations of treaties of whatever nature, but that perfect secrecy and
immediate dispatch are sometimes requisite. There are cases where the most useful
intelligence may be obtained . . . . [A]lthough the president must in forming
[treaties] act by the advice and consent of the Senate, yet he will be able to manage
the business of intelligence in such a manner as prudence may suggest.”).
314. THE FEDERALIST No. 72 (Alexander Hamilton), supra note 3, at 352 (stating
that the employees of the Executive Branch “ought to be considered as the assistants
or deputies of the chief magistrate; and, on this account, they ought to derive their
offices from his appointment, at least from his nomination, and ought to be subject
to his superintendence”).
315. 17 U.S. 316 (1819).
316. Id. at 406–10.
317. Id. at 411–12, 419–21. The clause serves a third function: it authorizes
Congress to enact laws to carry into execution the powers vested in the executive and
judicial branches, as well as the legislative branch.
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315
and appoint ambassadors and other public ministers. Treaties
cannot be made without negotiations based on foreign policy
objectives, and the purpose of exchanging ambassadors and public
ministers is to recognize and negotiate with foreign governments.
Indeed, at the time the U.S. Constitution was written, and for many
years later, the exchange of ambassadors “constitute[d] the only
accredited medium, through which negotiations and friendly
318
relations [were] ordinarily carried on with foreign powers.”
And
the inclusion of “other public ministers” is significant given the
practice of sending special diplomatic missions to resolve issues of
great importance and delicacy. Those governmental objectives
cannot be exercised intelligently unless the President has the
authority to establish a foreign policy that will guide negotiations and
319
diplomatic relations.
The methods that the President can use to carry out these powers
are not frozen in time. A central message of McCulloch is that the
methods used to effectuate governmental power must be adaptable to
320
changing historical circumstances.
Accordingly, the President has
the discretion to choose from a broad variety of methods, which can
evolve over time, in exercising law enforcement and foreign affairs
powers. Thus, in supervising an executive branch that in size,
breadth, and complexity barely resembles the one established by the
First Congress, the President can and must develop new methods in
meeting the responsibility to ensure that the laws are faithfully
executed. Similarly, the nature of foreign affairs and the position of
the United States in the world have changed dramatically since the
founding generation, and the President must be able to use new
methods in conducting the nation’s international relations.
The McCulloch approach differs from reliance on the Vesting
Clause in several respects. It restricts the President’s implied powers
to those that are tied to the powers specifically vested in the
President. This is consistent with one of the major themes that
derives from this Article’s analysis of the Framers’ treatment of the
royal prerogatives: the powers of the President are subject to careful
318. 3 STORY, supra note 216, § 1560.
319. Michael Ramsey argues that a general foreign affairs power does not seem
ancillary to the President’s enumerated powers. Michael D. Ramsey, The Myth of
Extraconstitutional Foreign Affairs Power, 42 WM. & MARY L. REV. 379, 437–38 (2000)
[hereinafter Ramsey, Myth]. Actually, the need for a general foreign affairs power to
effectuate the President’s enumerated powers seems much stronger than the need
for a privately owned and operated national bank to effectuate Congress’s
enumerated powers, which was upheld in McCulloch.
320. 17 U.S. at 407–09.
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limitations. By approaching the indefinite term “executive powers”
with this theme in mind, one can avoid the intractable issue—raised
by those who rely on the Vesting Clause as a source of residual
“executive” powers—of having to explain what the term means and
what powers are contemplated by it. The debate between Hamilton
and Madison as to whether the foreign affairs power is “executive” or
321
“legislative” in nature —a debate that has been reprised in recent
322
scholarship —provides a good illustration of the pitfalls in using the
Vesting Clause as an indefinite source of plenary presidential powers.
In addition, although the President has considerable discretion in
carrying out his implied powers, that discretion is subject to legislative
restrictions. The Framers responded to the abuses and dangers of
royal prerogative powers by eliminating them as executive powers,
assigning them entirely to Congress, or by splitting them and
323
assigning a portion to the legislative branch. From this response, it
follows that the implied powers of the President are not plenary
because executive power, in contrast to prerogative power, is subject
to legislative limitations. Implied presidential powers are subject to
three legislative restrictions: (1) these powers are subject to
regulation by Congress; (2) in case of a conflict between the exercise
of an implied presidential power and a congressional statute, the
statute prevails; and (3) absent congressional authorization, these
powers cannot be used to change domestic law or to impose or alter
legal obligations.
In the Section that follows, I elaborate on these principles and the
justifications for them in the context of the two most important
implied presidential powers: enforcement of the laws and the
conduct of foreign affairs.
321. In response to the Pacificus letters, Madison, writing as Helvidius, argued for
a narrow construction of executive power. PACIFICUS-HELVIDIUS DEBATES, supra note
33, at 63–64. He denied that treaties were “executive” acts and taunted Hamilton
with the latter’s previous conclusion in The Federalist No. 75 that treaties are more in
the nature of “legislative” than “executive” acts. Id.
322. Compare Prakash & Ramsey, supra note 11, at 254–68 (arguing that the
Framers understood that aspects of foreign affairs are “executive” and are plenary
powers of the President pursuant to the Vesting Clause), with Curtis A. Bradley &
Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV.
545, 561–69 (2004) (arguing that the Framers did not view foreign affairs as an
“executive” power and had not settled on a single, widely held doctrine of what
“executive” power meant).
323. See discussion supra notes 276–282 and accompanying text.
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III. THE LIMITS OF IMPLIED EXECUTIVE POWERS
A. Enforcement of the Laws
As anyone who has worked in government knows, enforcing the
laws is not a mechanical task. Many statutes are ambiguous and have
not been definitively interpreted by the courts. Many other statutes
delegate considerable authority to the executive branch to decide
how the underlying purposes of the statutes should be effectuated.
Because there will never be enough resources to bring enforcement
actions against every potential statutory violation, and because
judgments must be made as to whether enforcement actions will be
successful, discretion must be exercised and enforcement priorities
must be set. In short, supervisory policies must be established to
ensure the effective and consistent enforcement of the laws. As the
head of the executive branch, the President has broad authority to
make those policies and to supervise, manage, and control the
actions of his subordinates.
For the reasons stated in my discussion of a presidential
324
“completion power,” executive orders can control the internal
operations of the executive branch, but they cannot be used to
change domestic law or to create or alter existing legal obligations.
I also reject claims of plenary or exclusive authority in the President
to enforce the laws. The President’s law enforcement powers are
subject to congressional regulation and override. I reach this
conclusion for several reasons that relate to prerogative powers.
Suppose that the Framers had listed in Article II an enumerated
power that, following the royal prerogative, declared that the
President “shall have the power to prosecute offenses against the
United States.” This would have provided the President with a
plenary power over federal law enforcement that would be equivalent
to the pardoning power—that is, it could not be restricted or negated
by Congress. But the Constitution does not vest such an enumerated
power in the President, and we are instead dealing with a power that
is implied from the Take Care Clause. That clause, however, denies
to the President the royal prerogatives of suspending and dispensing
with statutes—prerogatives that were eliminated in England because
they placed the King above the law. Yet, whenever a congressional
statute is nullified because of a conflict with an asserted presidential
prerogative, the President has effectively suspended the law. It would
324. See discussion supra notes 294–311 and accompanying text.
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be quite strange to have an implied law enforcement power to
suspend statutes that is derived from an enumerated duty which
prohibits the President from suspending statutes. As the Supreme
Court has explained, “To contend that the obligation imposed on the
President to see the laws faithfully executed, implies a power to
forbid their execution, is a novel construction of the constitution,
325
and entirely inadmissible.”
My second reason for rejecting executive essentialism in law
enforcement is that the power to create offices in the executive
branch—a power which had been a royal prerogative—was vested in
Congress. This allocation was part of a package of decisions made in
response to the Hanoverian Kings’ use of that prerogative and related
prerogatives, including appointments, removals, and pensions. The
kings used those prerogatives to create a massive system of political
patronage by which they were able to maximize executive power at
326
the expense of the legislature. With the power to create executive
offices vested in Congress, the legislative branch can control the
operations of those offices through funding decisions and through
the exercise of an enumerated power. Although the implied powers
of the President were not codified in the U.S. Constitution, those of
Congress were: Congress was given the enumerated power “[t]o
make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers [of Congress], and all other Powers
vested by this Constitution in the Government of the United States, or in any
327
Department of Officer thereof.”
Thus, in the absence of legislation, the President may direct the
Justice Department, the United States Attorneys, and the Federal
325. Kendall v. United States, 37 U.S. 524, 613 (1838); see also The Confiscation
Cases, 87 U.S. 92, 112–13 (1873) (“No power was ever vested in the President to
repeal an act of Congress.”); Gilchrist v. Collector of Charleston, 10 F. Cas. 355
(C.C.D.S.C. 1808) (No. 5420) (Johnson, J.) (holding that when Congress vests
discretionary authority with respect to the enforcement of a law to a subordinate
executive official, that official’s decision is not subject to presidential control).
In 1806, Justice Paterson held that “[t]he president of the United States cannot
control the statute, nor dispense with its execution, and still less can he authorize a
person to do what the law forbids.” United States v. Smith, 27 F. Cas. 1192, 1230
(C.C.D.N.Y. 1806) (No. 16,342). Paterson explained that if the President were
granted such power, such a grant “would render the execution of the laws dependent
on his will and pleasure; which is a doctrine that has not been set up, and will not
meet with any supporters in our government.” Id. But cf. United States v. Midwest
Oil Co., 236 U.S. 459, 481–83 (1915) (upholding presidential withdrawals of public
lands from exploitation contrary to the explicit terms of a statute because there was a
long history of such withdrawals, which Congress subsequently ratified).
326. See discussion supra notes 158–209.
327. U.S. CONST. art. I, § 8, cl. 18 (emphasis added).
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319
Bureau of Investigation that law enforcement priorities are, for
example, anti-terrorism and prosecutions of gun control and drug
laws. But there is no doubt that Congress can override those
priorities with its own priorities—for example, prosecuting official
corruption and financial white-collar crime. Similarly, the President
may issue an executive order instructing subordinate executive
officials to employ a cost-benefit analysis when developing policies or
to issue rules concerning how ambiguous statutes should be
328
enforced.
Again, however, Congress can nullify those instructions
329
through the enactment of a contrary statute. The President cannot
control executive officials with respect to duties that are imposed by
330
law.
Historical experience also speaks volumes in this area. For seventyplus years, Congress has vested the enforcement of important federal
laws in independent agencies whose members are not removable by
331
the President. These agencies exercise a significant portion of the
“executive power,” and through a process of continuous operation
332
and acceptance by all three branches of government, they have
become an established and irreversible feature of our constitutional
333
system.
Finally, if the President has plenary law enforcement power,
it should follow that he has the inherent authority to enforce every
federal law without statutory authorization. Such a doctrine was
334
inferred in a most unusual case, In re Debs. The President, through
the Attorney General, sought and obtained an injunction to stop the
Pullman strike, and, when the injunction was disobeyed, sought and
328. See, e.g., Exec. Order No. 12,291, 3 C.F.R. 127 (1981), revoked by Exec. Order
No. 12,866, 3 C.F.R. 638 (1993), reprinted as amended in 5 U.S.C. § 601 (2000)
(implementing review procedure for executive agency rule-making process).
329. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2322–27
(2001) (asserting that Congress has the authority to confine the President’s
discretion over executive agencies but has refrained from exercising that authority).
330. See 3 STORY, supra note 216, § 1563 (endorsing the “incidental” power of the
President to supervise his subordinates except when they are subject to legal duties
imposed by Congress).
331. Humphrey’s Executor v. United States, 295 U.S. 602, 632 (1935).
332. Cf. Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method,
79 TEX. L. REV. 961, 1009–10 (2001) (arguing for an approach of constitutional
incrementalism—that is, when the text is uncertain, changes in governmental
operations can obtain validity through a long history of cooperative usage and
acceptance).
333. See generally HAROLD J. KRENT, PRESIDENTIAL POWERS 60–64 (2005) (discussing
the process through which independent agencies became a legitimate and pervasive
feature of the federal government).
334. 158 U.S. 564 (1895).
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335
obtained a criminal contempt sentence.
But there was no federal
statute that made the Pullman strike illegal or that authorized an
336
Nevertheless, the Supreme
enforcement action by the Executive.
Court upheld the injunction and the criminal contempt ruling
because the United States had the power to prevent interstate
337
commerce from being obstructed.
Of course the United States has that power, but in that case, it had
not been exercised by the lawmaking branch of the government.
Because Debs was a private person and not a state actor, he could not
have violated the dormant Commerce Clause. And in constantly
referring to “the United States,” the Court never addressed the issue
that the President’s actions had not been authorized by Congress.
The Court somehow converted an unexercised congressional power
338
into an affirmative presidential power.
339
Debs was contrary to earlier Supreme Court decisions and is an
anomaly that has not since had generative power. One might argue
335. Id. at 598.
336. Id. at 578–80.
337. Id. at 599–600.
338. In The Protective Power of the Presidency, supra note 11, Henry Monaghan posits
that the President generally does not have the unilateral power to violate private
rights, but an exception may exist to preserve, protect, and defend the personnel,
property, and instrumentalities of the national government. The strongest case for
such a power is Cunningham v. Neagle, 135 U.S. 1 (1890). Without statutory
authorization, the Attorney General assigned a U.S. Marshal to protect Justice Field,
and the marshal killed a man who may have threatened Field. Id. at 5–6. The
marshal was then prosecuted for murder by the State of California, and he applied
for a writ of habeas corpus, arguing that he was authorized by the United States
Constitution and laws to have used deadly force. The Supreme Court upheld this
claim in a confusing decision that may boil down to the proposition that the
President’s duty to take care that the laws are faithfully executed implies the power to
protect those who enforce the laws. Still, the Supreme Court did not satisfactorily
explain how unilateral executive action could override the laws of California on the
use of deadly force. As an alternative ground for decision, the majority held that a
federal statute gave the marshal such power. Id. at 75–76. Debs is much farther
removed from the theory of protective presidential power because it rested on a
generalized national interest—executive “protection” of a constitutional power that
Congress had not seen fit to exercise. As Monaghan concludes, however, a theory of
protective presidential power may be better suited in the present era for statutory,
rather than constitutional, construction, given the proliferation of statutes that are
ambiguous or that broadly delegate authority to the Executive. Monaghan, supra
note 11, at 74.
339. For example, more than eighty years earlier in Brown v. United States, 12 U.S.
110 (1814), Chief Justice Marshall, writing for the Court, held that Congress’s
declaration of war in 1812 did not give the President authority to seize British
property in the United States. The Court stated:
Respecting the power of government no doubt is entertained. That war
gives to the sovereign full right to take the persons and confiscate the
property of the enemy wherever found, is conceded. . . . [W]hen the
sovereign authority shall ch[oo]se to bring it into operation, the judicial
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321
that the strongest case for the application of Debs would be the
authority of the President to bring civil enforcement actions against
state officials who violate constitutional rights. But, although
Congress has authorized the President, through the Attorney
General, to bring civil enforcement actions under a variety of civil
340
rights statutes, Congress has not provided that general authority in
constitutional cases, and has instead left them to private enforcement
341
actions.
Accordingly, the courts have properly held that the
342
President has no such inherent authority.
For these reasons, the President’s power to execute the laws is
subject to plenary legislative control: the President’s implied power
to enforce the laws must be exercised consistently with the laws that
Congress enacts. This conclusion is not subject to the objection that
Congress can thereby remove all of the President’s authority to
enforce the laws. The President has his own protective power. He
was given the power to veto legislation principally for the purpose of
343
resisting encroachments by Congress. The President’s veto cannot
be overridden except by a vote of two-thirds of each House.
In practical terms, this requires the President to obtain support from
only thirty-four Senators or 146 Representatives, which are,
department must give effect to its will. But until that will shall be expressed,
no power of condemnation can exist in the Court.
Id. at 122–23. The Court then held that Congress’s power to authorize captures was
distinct from its power to declare war; and, inasmuch as Congress had not exercised
this power, the President lacked the power to seize British property:
Like all other questions of policy, it is proper for the consideration of a
department which can modify it at will; not for the consideration of a
department which can pursue only the law as it is written. It is proper for the
consideration of the legislature, not of the executive or judiciary.
Id. at 129.
340. A number of these statutes are cited in United States v. Solomon, 563 F.2d 1121,
1126 n.4 (4th Cir. 1977).
341. See, e.g., 42 U.S.C. § 1983 (2006) (authorizing private causes of action against
persons acting under color of state law who violate federal rights).
342. United States v. City of Philadelphia, 644 F.2d 187, 206 (3d Cir. 1980);
United States v. Mattson, 600 F.2d 1295, 1300–01 (9th Cir. 1979); Solomon, 563 F.2d
at 1127–29; see also N.Y. Times Co. v. United States, 403 U.S. 713, 730 (1971)
(Stewart, J., concurring) (arguing that the Executive does not have the authority to
enjoin a newspaper’s publication of classified material because Congress has not
delegated that authority to the Executive); id. at 732–34, 740 (White, J., concurring)
(“[Congress] has not . . . authorized the injunctive remedy against threatened
publication [of classified material]. It has apparently been satisfied to rely on
criminal sanctions and their deterrent effect on the responsible as well as the
irresponsible press.”); id. at 741–47 (Marshall, J., concurring) (asserting that the
Court cannot authorize the creation of a civil remedy for the Executive to employ
against the newspaper when Congress has refused to do so).
343. See discussion supra notes 83–85 and accompanying text.
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respectively, only six percent and twenty-seven percent of the entire
Congress.
Moreover, in the real world of governing, there is no reason
Congress would want to severely restrict the President’s law
enforcement powers. It is in the interest of Congress to have its laws
enforced uniformly and vigorously. The President can provide that
energy and consistency in law enforcement.
But there are
countervailing values that may call for exceptions, and if Congress
decides that certain laws should be enforced by independent
344
agencies, by an independent counsel, by some other Executive
345
officials, or by private parties, these are policy decisions that
344. See, e.g., Morrison v. Olson, 487 U.S. 654 (1988) (holding that Congress has
the authority to authorize the courts to appoint independent counsel to investigate
the Executive Branch under a statute requiring the Attorney General to request the
appointment and providing that the counsel may be removed only for cause).
345. See Gilchrist v. Collector of Charleston, 10 F. Cas. 355 (C.C.D.S.C. 1808) (No.
5420). Gilchrist involved one of the most dramatic confrontations between the
judicial and executive branches during the early period of the Marshall Court and
produced a now virtually forgotten decision by Justice William Johnson, who was
President Jefferson’s first appointee to the Supreme Court. At Jefferson’s urging,
Congress passed an embargo act prohibiting commercial intercourse with either
Great Britain or France. To prevent evasions of the embargo, the statute directed
port collectors to determine whether a ship claiming to be heading to another
American port was actually heading to that port, or if there was reason to believe that
the ship was instead going to one of the warring countries. If the collector decided
there was no evasive purpose, he was to allow egress. If the collector had reason to
believe that there was an evasive purpose, he could detain the ship, and the owner
could appeal the decision to the President. The Gilchrist case arose when the
Charleston port collector detained four ships purportedly heading for Baltimore.
He stated that he had no reason to believe that there was any intent to evade the
embargo but that the President, through Secretary of the Treasury Gallatin,
disagreed and instructed him to prevent the ships from leaving. Justice Johnson held
that the President’s instructions were illegal because Congress had vested the
authority to grant egress in the collector. He explained,
The officers of our government, from the highest to the lowest, are equally
subjected to legal restraint. . . . Congress might have vested this discretion in
the president, the secretary of the treasury, or any other officer, in which
they thought proper to vest it; but, having vested the right of granting or
refusing in the collector, with an appeal to the president only in case of
refusal—the right of granting clearances remains in him unimpaired and
unrestricted.
Id. at 356. Johnson then issued a writ of mandamus to the collector ordering him to
allow the ships to depart.
This decision so enraged Jefferson that his Attorney General published a letter in
the press denouncing it. Significantly, the Attorney General barely argued that
Johnson was wrong in stating that Congress could vest final enforcement authority in
the collectors. Instead, he challenged at length the Court’s jurisdiction and, relying
on Marbury v. Madison, its authority to issue the writ of mandamus. Id. at 357. He also
argued that issuing the writ of mandamus against an executive official violated the
separation of powers; if the collector acted illegally in following the President’s
instructions, the remedy was a damage action. Id. at 359. Johnson, in turn, was so
angered by the Attorney General’s letter that he published a long public rebuttal. Id.
at 359–66. The bulk of this rebuttal was a defense of Johnson’s authority to issue the
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323
Congress has the power to make. To be sure, these decisions may
346
frustrate presidential authority, but they do not violate any Article II
power. Justice Brandeis made this point cogently:
The separation of the powers of government did not make each
branch completely autonomous. It left each in some measure,
dependent upon the others, as it left to each power to exercise, in
some respects, functions in their nature executive, legislative and
judicial. Obviously the President cannot secure full execution of
the laws, if Congress denies to him adequate means of doing so.
Full execution may be defeated because Congress declines to
create offices indispensable for that purpose; or because Congress,
having created the office, declines to make the indispensable
appropriation; or because Congress, having both created the office
and made the appropriation, prevents, by restrictions which it
imposes, the appointment of officials who in quality and character
are indispensable to the efficient execution of the law. If, in any
writ of mandamus, but he concluded with an observation “which cannot have escaped
the notice of the most superficial observer”: that “the legality of the [President’s]
instructions given to the collector, is immediately put aside [by the Attorney General;
while the public attention is fixed [on the technical mandamus issue]. . . . The
argument is not that the executive have done right, but that the judiciary had no
power to prevent their doing wrong.” Id. at 366.
This important decision regarding presidential power has never been cited by
name by any federal court, even though, as Jerry L. Mashaw has observed, it
“foreshadowed” the decision in the Steel Seizure Case. Reluctant Nationalists: Federal
Administration and Administrative Law in the Republican Era, 1801–1829, 116 YALE L.J.
1636, 1678–79 (2007). There are two postscripts to this decision. Jefferson
instructed the collectors to follow Secretary Gallatin’s directions rather than
Johnson’s decision. There were newspaper reports that collectors were obeying this
directive, but Gallatin told Jefferson he doubted that the collectors were complying
because of the risk of facing possibly ruinous damages actions. Id. at 1679–80. As for
the mandamus remedy, in McIntyre v. Wood, 11 U.S. (7 Cranch) 504, 506 (1813), the
Supreme Court held that the circuit courts did not have the statutory power to issue
writs of mandamus except in aid of their jurisdiction. Justice Johnson wrote the
opinion and noted that his decision to issue mandamus in the Charleston “collector”
case (a case of some “notoriety”) was incorrect as a statutory matter. Id. at 506.
346. The most direct intrusion on the President’s law enforcement power would
occur if Congress legislated as to individuals. Suppose that Congress believed that
the Attorney General was prosecuting an innocent person for illegitimate reasons.
A legislative order not to prosecute would seem to violate the separation of powers,
until one considers that Congress can exempt individuals from specific laws.
Although the President does not have a suspending or dispensing power, Congress
does, and it may direct the President to suspend a law. Field v. Clark, 145 U.S. 649,
693 (1892). Or suppose that Congress believed someone was guilty of a serious
federal crime, but, for political or other illegitimate reasons, the Attorney General
refused to prosecute. A statute ordering that prosecution would not violate the
principles stated above but would probably be unconstitutional as a bill of attainder.
See, e.g., United States v. Lovett, 328 U.S. 303 (1946) (holding that a statute excluding
suspected Communists from government jobs was an unconstitutional bill of
attainder because it legislatively targeted and punished particular people). These
hypotheticals assume, of course, that such attempts by Congress would not be vetoed
or that the vetoes would be overridden.
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such way, adequate means are denied to the President, the fault
will lie with Congress.
The President performs his full
constitutional duty, if, with the means and instruments provided by
Congress and within the limitations prescribed by it, he uses his
best endeavors to secure the faithful execution of the laws
347
enacted.
B. Foreign Affairs
The modern jurisprudence of presidential powers over foreign
348
affairs began with the 1936 decision in United States v. Curtiss-Wright.
That case involved a joint resolution of Congress that authorized the
President to prohibit the sale of arms to combatant countries in an
area of South America. The President proclaimed an embargo, and
349
Curtiss-Wright was prosecuted for selling arms to Bolivia.
The
President’s action was authorized by Congress, but Curtiss-Wright
argued that the joint resolution was an unconstitutional delegation of
350
legislative power to the President.
Although the non-delegation
351
doctrine was still in effect, Justice Sutherland avoided it; instead, he
advanced a historical narrative that the foreign affairs powers were
347. Myers v. United States, 272 U.S. 52, 291–92 (1926) (Brandeis, J., dissenting).
A brief note regarding the President’s removal power is warranted. Consistent with
the approach taken in this Article, I view the removal of executive officials as a
presidential power that is implied from the appointments power. Thus, in the
absence of legislation, the President may remove executive officials at will. But as an
implied power, removal is subject to congressional restriction. Given the care with
which the Framers cabined the President’s appointment power, it is difficult to
understand how an unrestricted plenary removal power, which was a critical
prerogative used by the Crown to exercise dominance over Parliament, can be
engrafted onto Article II. Moreover, since Congress creates offices in the Executive
Branch and can set the legal duties and salaries of the office-holders, why cannot
Congress also prescribe a term of office or require cause or Senatorial consent for
removal? Such prescriptions may or may not be good policies, but that is not the test
for the validity of legislation.
However, this is another situation in which historical experience has its claims.
Joseph Story, writing in 1833, termed the plenary presidential removal power a
“monarchical” relic, but he recognized that “it will be difficult, and perhaps
impracticable, after forty years’ experience, to recall the practice to the correct
theory.” 3 STORY, supra note 216, §§ 1533, 1538. For many more years than Story was
considering, the rules governing removal have been established. Congress and the
President have adjusted politically to these rules (as a practical matter, the tenure of
a high-level executive official depends heavily on the official’s relationship with
Congress). For one of many thoughtful articles on removal, see John Harrison,
Addition by Subtraction, 92 VA. L. REV. 1853 (2006).
348. 299 U.S. 304.
349. Id. at 311.
350. Id. at 314.
351. See Panama Refining Co. v. Ryan, 293 U.S. 388, 433 (1935) (striking down a
domestic statute that authorized the President to prohibit the transportation of
petroleum as an unconstitutional delegation of power from Congress to the
President).
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THE LIMITS OF EXECUTIVE POWER
325
extra-constitutional in nature, derived not from any enumerated or
352
implied powers but from “the conception of nationality.”
Sutherland then opined that the foreign affairs powers of the United
States belong to the President who “alone has the power to speak or
listen as a representative of the nation . . . [as well as] plenary and
exclusive power . . . as the sole organ of the federal government in
the field of international relations—a power which does not require
353
as a basis for its exercise an act of Congress . . . .”
Sutherland’s extra-constitutional historical narrative, which is
inconsistent with the premise that the Constitution is one of
delegated powers, has been shown to be more creative than
354
descriptive. But more interesting is that Sutherland’s description of
the President’s foreign affairs power tracks almost precisely
Blackstone’s description of the royal prerogative of the King: “With
respect to foreign concerns, the king is the delegate or representative
of his people. . . . What is done by the royal authority, with regard to
foreign powers, is an act of the whole nation: what is done without
355
the king’s concurrence is the act only of private men.”
A poorer candidate for plenary presidential power could hardly be
found. The Constitution vests in Congress the most important royal
356
prerogative in foreign affairs—the power to declare war.
It also
vests in Congress other royal prerogatives concerning foreign
357
affairs, as well as the foreign affairs powers that had been exercised
358
by Parliament.
The enumerated powers of the President in foreign affairs pale by
comparison. The President was given three of the royal prerogatives
subject to substantial legislative controls that had not restrained the
King. The President is designated as the Commander-in-Chief of the
military, when raised and regulated by Congress, and of the militia, as
352. Curtiss-Wright, 299 U.S. at 318.
353. Id. at 319–20.
354. Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation:
An Historical Reassessment, 83 YALE L.J. 1, 30 (1973); see also Ramsey, Myth, supra note
319, at 391–93.
355. 1 BLACKSTONE, supra note 25, at *252. This similarity is probably not
coincidental given Sutherland’s thesis that the foreign affairs powers of the United
States “were passed from the Crown.” Curtiss-Wright, 299 U.S. at 315.
356. U.S. CONST. art. I, § 8, cl. 11.
357. Id. § 8, cl. 11–16 (raise and support the army and navy; make rules for the
government and regulate the military; provide for calling forth the militia to repel
invasions; grant letters of marque and reprisal; make rules for captures on land and
sea; regulate the value of foreign currency and regulate immigration).
358. Id. § 8, cl. 1, 3, 5, 10 (regulate foreign commerce; naturalize aliens; define
and punish piracies on the high seas and offenses against the laws of nations); id. § 9,
cl. 5 (tax imports).
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organized and armed and when called into service as provided by
359
Congress.
The President can also make treaties and appoint
ambassadors and ministers, subject to the prior approval of the
360
Senate.
The only royal prerogative given to the President without
qualification was the power to receive foreign ambassadors and
ministers.
These select delegations of power explain why the President’s
foreign affairs power is a “missing prerogative.” The Constitution
does not give the President plenary power in foreign affairs because
that power is shared with, and constrained by, Congress. A plenary
presidential power over foreign affairs is inconsistent with the
allocation of the royal prerogatives in Articles I and II.
Using the structural approach taken by Marshall in McCulloch, a
presidential power over foreign affairs can be implied from the
Article II enumerated powers; and the President has a broad range of
methods that could be employed to conduct the nation’s
361
international relations.
The President’s enumerated foreign affairs powers, as strictly
construed, cannot be abrogated by Congress. Congress cannot, for
example, designate someone other than the President as
362
Commander-in-Chief of the military, nor can Congress order the
President to nominate a certain person to be an ambassador or to
363
negotiate a treaty.
But the implied powers of the President are
different because they are subject to limitations: (1) the implied
foreign affairs powers are subordinate to congressional statutes, and
359. U.S. CONST. art. II, § 2, cl. 1.
360. Id. § 2, cl. 2.
361. See discussion supra notes 312–323 and accompanying text.
362. The Reconstruction Congress tried to designate an alternative Commanderin-Chief when it passed the Command of the Army Act, 14 Stat. 485, 486–87 (1867),
which required all generals appointed by the President to take orders from General
of the Army, Ulysses Grant. The Act rendered contrary orders (i.e., those of
President Andrew Johnson) void, and imposed criminal penalties on officers who
refused to obey Grant’s orders. This law was an attempt to shield congressional
reconstruction policies from presidential interference.
See ERIC FONER,
RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877, at 333 (Harper
2002). See generally David J. Barron & Martin S. Lederman, The Commander in Chief at
the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941 (2008); David J. Barron
& Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem,
Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008) (providing an
exhaustive historical argument that the President’s plenary power as Commander-inChief is very narrow).
363. See, e.g., Earth Island Inst. v. Christopher, 6 F.3d 648, 653 (9th Cir. 1993)
(holding unconstitutional a statute directing the Secretary of State to negotiate with
foreign countries to develop treaties that would protect sea turtles); S. Offshore
Fishing Ass’n v. Daley, 995 F. Supp. 1411, 1427–28 (M.D. Fla. 1998) (same for treaties
for international shark management).
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THE LIMITS OF EXECUTIVE POWER
327
(2) the President may not use these powers to alter domestic legal
obligations without congressional authorization.
364
Starting with Little v. Barreme (Flying Fish Case), the courts adopted
the first limitation on the President’s implied powers. In that case,
the Supreme Court held that the President could not issue military
instructions to recapture seized American ships in a manner contrary
365
to the terms of a federal statute.
The Court has also held that,
in the absence of a conflict with an enumerated presidential power,
Congress has plenary authority over foreign affairs through the
366
exercise of its enumerated powers and that an executive order is
367
invalid when it conflicts with a treaty or statute. This principle was
368
Similarly,
recently reaffirmed and applied in Hamdan v. Rumsfeld.
the lower federal courts have held that congressional statutes
concerning foreign affairs prevail over conflicting executive foreign
369
policy statements, orders, and executive agreements. As is true for
law enforcement, the President’s implied powers over foreign affairs
364. 6 U.S. (2 Cranch) 170 (1804).
365. See case summaries supra note 307.
366. See, e.g., Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 328–29
(1994) (holding that foreign policies of the Executive cannot displace state law
condoned by Congress under the Foreign Commerce Clause); La Abra Silver Mining
Co. v. United States, 175 U.S. 423, 459–62 (1899) (concluding that a financial
dispute with Mexico was ultimately subject to congressional resolution); see also Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 233 (1986) (stating that Congress
can require the Executive to impose sanctions on foreign countries that exceed
prescribed fishing limits).
367. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188–90
(1999) (holding that hunting and fishing rights granted to the Chippewa Indians by
treaty could not be revoked by Executive Order).
368. 548 U.S. 557, 635 (2006) (holding unconstitutional military commissions
established by the President to try enemy combatants for war crimes because of
conflicts with the statute governing such commissions).
369. See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 235 (D.C. Cir.
2003), cert. denied, 524 U.S. 915 (2004) (“There is no doubt that laws passed after the
President enters into an executive agreement may abrogate the agreement.”); Banco
Nacional de Cuba v. Farr, 383 F.2d 166, 182–83 (2d Cir. 1967), cert. denied, 390 U.S.
956 (1968) (holding that the President’s foreign affairs powers do not preclude
statutory enactments by Congress on subjects in which it has an interest); United
States v. Guy W. Capps, Inc., 204 F.2d 655, 658 (4th Cir. 1953), aff’d on other grounds,
348 U.S. 296 (1955) (holding an executive agreement unlawful because it conflicted
with a federal statute regulating interstate commerce); Swearingen v. United States,
565 F. Supp. 1019, 1021 (D. Colo. 1983) (executive agreement related to, but not
part of, the Panama Canal Treaty was invalid because of a conflict with the Internal
Revenue Code); Indep. Gasoline Marketers Council, Inc. v. Duncan, 492 F. Supp.
614, 620 (D.D.C. 1980) (holding the President’s Petroleum Import Adjustment
Program invalid as contrary to the Energy Policy and Conservation Act); Rich v.
Naviera Vacuba, S.A., 197 F. Supp. 710, 716–18 (E.D. Va.), aff’d, 295 F.2d 24, 25 (4th
Cir. 1961) (holding that the President, acting through the Coast Guard, could not
prevent the United States Marshal from arresting a Cuban vessel pursuant to a
statutory warrant).
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cannot be used to suspend or dispense with a statute enacted by
Congress.
The second limitation—that the President’s implied powers over
foreign affairs cannot change domestic law without congressional
authorization—has proven more problematic. A decision by Chief
Justice Marshall in 1814 applied this principle in the extreme
370
circumstance of a declared war.
And in 1936, the Supreme Court
made this principle explicit. In Valentine v. United States ex rel.
371
Neidecker, the Court held that the President could not extradite a
person to the country where he allegedly committed a crime without
authorization by a treaty or statute:
It cannot be doubted that the power to provide for extradition is a
national power; it pertains to the national government and not to
the states. . . . But, albeit a national power, it is not confided to the
Executive in the absence of treaty or legislative provision. . . . [This
rule] rests upon the fundamental consideration that the Constitution creates
no executive prerogative to dispose of the liberty of the individual.
Proceedings against him must be authorized by law. There is no
executive discretion to surrender him to a foreign government,
unless that discretion is granted by law. It necessarily follows that
as the legal authority does not exist save as it is given by act of
Congress or by the terms of a treaty, it is not enough that statute or
treaty does not deny the power to surrender. It must be found that
372
statute or treaty confers the power.
373
The very next year, in United States v. Belmont, and subsequently in
374
United States v. Pink, the Supreme Court held that an executive
agreement with the Soviet Union displaced state laws on property
rights. The executive agreement was designed to resolve outstanding
differences between the United States and the Soviet Union as a
necessary element of President Roosevelt’s recognition of the Soviet
375
government. One of the most serious areas of friction had been the
multiple unresolved claims to property in New York that had been
376
the subject of Soviet expropriation decrees.
Under the executive
agreement, the Soviet Union assigned its claims to the United States
370. Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); see discussion supra
note 339.
371. 299 U.S. 5 (1936).
372. Id. at 8.
373. 301 U.S. 324 (1937).
374. 315 U.S. 203 (1942).
375. Belmont, 301 U.S. at 326.
376. Pink, 315 U.S. at 211.
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THE LIMITS OF EXECUTIVE POWER
329
377
(the “Litvinov Assignment”).
The United States committed to
acquire title to the assets, by litigation if necessary, as a prelude to
pooling them in a fund and then making equitable distribution to
various claimants. The New York courts held that the Soviet Union
had never acquired legal title to the assets because, according to that
State’s public policy, expropriation without just compensation
378
amounted to illegal confiscation.
The Supreme Court held that
New York’s law could not be applied in cases covered by the executive
379
agreement.
As a necessary method of conducting international relations, the
President may enter into executive agreements with foreign
governments without congressional authorization, and those
agreements are binding under international law. This is particularly
true in the context of recognition because the resolution of disputes
380
“certainly is a modest implied power of the President.”
As the
Court explained, “Unless such a power exists, the power of
381
recognition might be thwarted or seriously diluted.” But it does not
follow that the unilateral exercise of this implied executive power can
change domestic law governing private rights.
The first reason for questioning Belmont and Pink goes back to the
scope of the royal prerogative of foreign affairs. The King had the
unilateral power to make treaties with foreign nations, but those
treaties had no domestic legal effect without authorizing or
implementing legislation by Parliament. Yet if the President can
unilaterally change domestic law through the device of an agreement
with a foreign nation, then the President will be exercising a greater
382
power than was recognized in the royal prerogatives.
This result becomes even more questionable when one compares
executive agreements with Article II treaties. The President’s power
to make treaties is an enumerated power, but it can be effective only
383
with the consent of a super-majority vote in the Senate.
The
Supremacy Clause classifies treaties as laws; but Chief Justice Marshall
384
imposed a judicial gloss in Foster v. Neilson that while treaties are
377. Belmont, 301 U.S. at 326.
378. Id. at 327.
379. Id. at 335–36.
380. Pink, 315 U.S. at 229.
381. Id.
382. See Ramsey, Executive Agreements, supra note 11, at 229.
383. U.S. CONST. art II, § 2.
384. 27 U.S. (2 Pet.) 253, 314 (1829), overruled on other grounds by United States v.
Percheman, 32 U.S. (7 Pet.) 51 (1833) (“A treaty is in its nature a contract between
two nations, not a legislative act.”).
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binding between countries under international law, not all treaties
operate to alter domestic legal obligations. How, then, do treaties
that are not self-executing become part of the domestic law and
impose new legal obligations? Marshall answered, “[T]he ratification
and confirmation . . . must be the act of the legislature. Until such
act shall be passed, the Court is not at liberty to disregard the existing
385
laws on the subject.”
Thus, treaties have domestic legal effect only upon the
authorization of Congress—either by the action of a super-majority in
the Senate approving self-executing treaties, or by the enactment of
implementing legislation by the full Congress for non-self-executing
386
treaties.
But in giving domestic legal effect to the executive
agreements in Belmont and Pink, the Supreme Court appeared to hold
that unilateral executive agreements have a greater force than
treaties, even though (a) treaties involve the exercise of an
enumerated constitutional power, while executive agreements are
implied powers; and (b) treaties have been approved by a
constitutionally designated house of Congress, while unilateral
executive agreements have not.
Justice Sutherland’s opinion in Belmont suggested, and Justice
Douglas’s opinion in Pink stated explicitly, that executive agreements
387
enjoy the status of federal law under the Supremacy Clause.
This
holding, which purports to give unilateral domestic lawmaking power
388
to the President, is wrong. A simple example exposes the fallacy in
385. Id. at 314–15. The Court’s latest application of this principle was in Medellín
v. Texas, 128 S. Ct. 1346 (2008). In that case, the Court applied the principle without
stating a general presumption in favor or against self-execution. I am not suggesting
that this portion of the Medellín decision is correct. The Supremacy Clause provides
that “all treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land: and the judges in every State, shall be
bound thereby . . . .” U.S. CONST. art. VI, cl. 2 (emphasis added). Given this
unambiguous language, a treaty should be part of domestic law absent a statement
that it requires legislative implementation, an approach Marshall seemed to suggest
in United States v. Percheman. 32 U.S. at 88–89; see Vázquez, supra note 219, at 643–45,
666–67.
386. See Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs
Lawmaking, 54 UCLA L. REV. 309, 354–58 (2006).
387. United States v. Belmont, 301 U.S. 324, 331–32 (1937); United States v. Pink,
315 U.S. 203, 230 (1942).
388. Bradford R. Clark has recently attempted to justify the results in Belmont and
Pink on other grounds, thus relegating the Court’s discussion of the status of
executive agreements under the Supremacy Clause as dictum. Domesticating Sole
Executive Agreements, 93 VA. L. REV. 1573, 1641–47 (2007). The argument is that the
President’s recognition of the Soviet government triggered the act of state doctrine,
which meant, independently of the executive agreement, that no American court
could question the legality of the acts of that government retroactively to the
commencement of the regime. See, e.g., Ricaud v. Am. Metal Co., 246 U.S. 304, 308
2009]
THE LIMITS OF EXECUTIVE POWER
331
this contention. The executive agreement with the Soviet regime
dealt with one source of friction—claims settlement—that needed to
be resolved as a condition of recognition. Another possible source of
friction was the presence in the United States of many Trotsky
followers who obtained refuge in this country following the first
Stalinist purges and who were condemned as criminals by the regime.
Suppose that the Soviet Union demanded their extradition as a
(1918); Oetjen v. Cent. Leather Co., 246 U.S. 297, 302–03 (1918); Underhill v.
Hernandez, 168 U.S. 250, 253 (1897); Williams v. Bruffy, 96 U.S. 176, 186 (1877).
See generally Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416–27 (1964)
(describing the history of the act of state doctrine and concluding that its source is
preemptive federal common law that applies to both state and federal courts).
The problem with this argument is that the act of state doctrine does not apply
extraterritorially.
See, e.g., Sabbatino, 376 U.S. at 401; G. Edward White,
The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1,
128–29, 129 n.439 (1999). Thus, although the New York courts could not question
the legality of a Soviet decree that seized property in that country, that bar did not
apply to the assets in Belmont and Pink, which were in New York.
Clark attempts to avoid the extraterritorial problem by arguing that, under
corporate law, the assets in New York were part of the expropriated and liquidated
Russian corporations, and their situs was therefore in the Soviet Union. This
argument conceivably might work in Belmont, which involved money deposited by the
Russian corporation in a New York bank before it was expropriated and liquidated in
1918. 301 U.S. at 326–27.
But Pink is very different. That case involved funds that had been assets of the New
York branch of a Russian insurance corporation that was expropriated and liquidated
in 1920. 315 U.S. at 210–11. The branch was a company that had been licensed by
New York to do business in that State; had always done business in New York subject
to the laws of New York, including the regulations of the State Insurance
Commissioner; had continued to operate in New York for five years after the Russian
corporation was liquidated; and had been liquidated under New York law by the
State Insurance Commissioner when it ceased doing business. Id. The asset in
question was a fund of about one million dollars held by the Insurance
Commissioner, which was the net of annual security deposits made by the company
as collateral for creditors and the money from liquidating the company’s assets, less
payments of claims to American creditors. Id. at 211. All of the money in this fund
had been generated by transactions in New York that were governed by state law.
Most significantly, under New York corporate law, the branch of a foreign insurance
company licensed to operate in the state is a separate juridical entity from its parent
corporation, and “[i]n its transaction of business in New York, it is to be dealt with,
pro hac vice, as a domestic corporation.” Comey v. United Sur. Co., 111 N.E. 832, 834
(N.Y. 1916) (Cardozo, J.). The act of state doctrine could not apply to the foreign
seizure of domestic funds that were collected by the state from a company that was
privileged to do business in the state with the legal status of a New York corporation.
Another possible justification for Pink is that Congress impliedly ratified the
executive agreement. In 1939, before Pink was decided, Congress passed a joint
resolution, 53 Stat. 1197, that authorized the President to appoint a claims
commissioner with quasi-judicial powers (including subpoenaing witnesses and
requiring the production of documents) to determine the validity and amounts of
claims against the Soviet Union. This legislative ratification of the executive
agreement would have mooted any question of unilateral presidential power to
change domestic law, but for the fact that it applied only to claims of American
citizens—and all of the claimants in Pink were foreigners. The Supremacy Clause
issue had to be reached in Pink, if not in Belmont.
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condition of recognition. It seems inconceivable that an executive
agreement providing for such extraditions would be legally
enforceable. If, as the Supreme Court held in Valentine, the President
cannot extradite anyone without congressional authorization, how
could the President obtain the unilateral power to extradite through
a contract with a foreign power? As stated in Valentine: “The
Constitution creates no executive prerogative to dispose of the liberty
of the individual. Proceedings against him must be authorized by
389
law.”
The same principle applies to property rights and
demonstrates why Belmont and Pink were incorrectly decided.
The Supreme Court next dealt with executive agreements some
390
forty years later in Dames & Moore v. Regan, which involved an
391
executive agreement freeing the American hostages held in Iran.
While most of the executive orders implementing that agreement
were authorized by statutes, the provision for suspending claims
pending in United States courts against the government of Iran was
392
not so authorized. In writing for the majority, Justice Rehnquist did
not rely on a broad reading of Belmont and Pink. Instead, Rehnquist
asserted that the settlement of claims against foreign nations in
executive agreements had a long history and had been authorized in
393
analogous situations by Congress.
He concluded, therefore, that
394
the suspension of claims was impliedly authorized by Congress.
395
Although Rehnquist’s historical analysis has been criticized, it
seemed to return the Court to the principle that the President could
not unilaterally change domestic legal obligations without authority
from Congress. Indeed, implied congressional authorization was said
396
to be “crucial” to the decision.
Then the Court gave its remarkable decision in American Insurance
397
Ass’n v. Garamendi.
California had passed a law to provide relief
through litigation for Holocaust-era survivors whose life insurance
398
policies had been unlawfully appropriated by private companies.
The portion of the law at issue in the case required all insurers who
389. Valentine v. United States, 299 U.S. 5, 9 (1936).
390. 453 U.S. 654 (1981).
391. See id. at 659–60.
392. Id. at 666.
393. Id. at 679–86.
394. Id. at 677–82.
395. See Eskridge & Baer, supra note 6, at 1164–66; Marks & Grabow, supra note 6,
at 77–92.
396. Dames & Moore, 453 U.S. at 680.
397. 539 U.S. 396 (2003).
398. Id. at 409.
2009]
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333
did business in the state and who sold insurance policies in Europe
during the Holocaust era to disclose information about those policies
399
to the state insurance commissioners or risk losing their licenses.
Those disclosures would, of course, be very useful to present and
400
prospective plaintiffs in lawsuits against insurance companies. But
the disclosure provision was said to undermine the executive
agreements that the President had negotiated with Germany, Austria,
and France, which sought to provide relief for Holocaust victims from
401
the insurance companies through a voluntary process.
The
Supreme Court held, in an opinion by Justice Souter, that the
California law had been preempted by the executive agreements,
even though the executive agreements had not been authorized by
Congress and nothing in those agreements prohibited the disclosures
402
required by the state law.
There are two ways to read this decision. The first is that it is an
extension of Dames & Moore. Souter claimed that the longstanding
practice of executive claims-settlement established the authority of
403
the President to settle all claims through executive agreements.
This argument, however, cuts against the grain of the “narrowness” of
404
the Dames & Moore holding, and it is difficult to sustain because the
longstanding executive practice, which Congress impliedly approved,
was the settlement of claims against foreign governments, not lawsuits
405
against private parties. Nevertheless, this reading of Garamendi has
the virtue of being grounded on congressional authority to change
domestic law.
The other reading of Garamendi is that the California law was
nullified because it interfered with the President’s ability to conduct
399. Id. at 409–10.
400. Id. at 410–11.
401. Id. at 410–12.
402. See id. at 428–29; id. at 430 (Ginsburg, J., dissenting) (“Although the federal
approach differs from California’s, no executive agreement or other formal
expression of foreign policy disapproves state disclosure laws like [California’s
statute].”).
403. Id. at 420 (majority opinion).
404. See 453 U.S. at 688 (“Finally, we re-emphasize the narrowness of our decision.
We do not decide that the President possesses plenary power to settle claims, even as
against foreign governmental entities.”).
405. Claims against foreign countries challenged the legality of those
governments’ actions and were barred by the doctrine of sovereign immunity.
See Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 486 (1983); Schooner Exch. v.
McFaddon, 11 U.S. (7 Cranch) 116, 135, 145–46 (1812). However, claims against
private parties were not barred by sovereign immunity, and there is no history of
private party claims settlement through executive agreements. See Ingrid Wuerth,
The Dangers of Deference: International Claim Settlement by the President, 44 HARV. INT’L
L.J. 1, 20–39 (2003).
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foreign affairs as he saw fit—that is, the President’s policy was to settle
406
the claims through voluntary means and not through litigation.
This reading of the decision is based on Souter’s reliance on Zschernig
407
v. Miller, a 1968 decision that struck down an Oregon law that
denied an inheritance to a resident of East Germany because of the
408
Even though the Justice Department
likely lack of reciprocity.
advised the Supreme Court that the Oregon law did not “unduly
interfere[] with the United States’ conduct of foreign relations,” the
Court held that it was “an intrusion by the State into the field of
foreign affairs which the Constitution entrusts to the President and
409
the Congress.”
Zschernig is a controversial decision, suggesting the existence of a
dormant foreign affairs power. Describing this as “new constitutional
doctrine,” Louis Henkin thought that it “will take many years and
410
many cases” to work out its application.
Perhaps because of the
411
opinion’s apparent lack of coherence, however, Zschernig was
ignored by the Supreme Court until it was resurrected and greatly
412
extended in Garamendi. The Court then made the same mistake it
413
had made in In re Debs —it equated the United States with the
presidency. A dormant prohibition on state power necessarily
presupposes the existence of a positive grant of federal power.
No one doubts that Congress, in exercising its legislative powers over
foreign affairs, can create new legal obligations and preempt state
414
laws that stand in the way of its objectives.
But unexercised
congressional power does not create power in the President. And
there is no such power in the presidency itself, unless one assumes
that all executive agreements, and perhaps all diplomatic policies, are
406. 539 U.S. at 421–23.
407. 389 U.S. 429 (1968).
408. Id. at 430–31.
409. Id. at 434, 432.
410. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 239 (Foundation Press
1972).
411. See id. at 476–77 n.51; Brandon D. Deming & Michael D. Ramsey, American
Insurance Company v. Garamendi and Executive Preemption in Foreign Affairs, 46 WM. &
MARY L. REV. 825, 855–57 (2004) (analyzing three alternative readings of Zschernig,
and extensively criticizing Garamendi on both separation of powers and federalism
grounds).
412. 539 U.S. at 417–21; see also id. at 439 (Ginsburg, J., dissenting) (“We have not
relied on Zschernig since it was decided, and I would not resurrect that decision
here.”).
413. See discussion supra notes 334–342 and accompanying text.
414. See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) (holding
that a Massachusetts law restricting trade with Myanmar was preempted by a federal
statute that imposed similar sanctions on that country).
2009]
THE LIMITS OF EXECUTIVE POWER
335
“laws” under the Supremacy Clause. The result of Garamendi was an
unprecedented expansion of unilateral presidential power that went
beyond any prerogative that was ever recognized in the British
monarch.
The Supreme Court recently adopted the narrower reading of
415
Garamendi. In Medellín v. Texas, treaty obligations required the
United States to provide consular access, as well as judicial review and
reconsideration of convictions and sentences, to Mexican detainees
when that access was not provided. Texas refused to comply with
these obligations. As the case wound through the courts, the
President issued a memorandum that appeared to order Texas to
416
comply. Medellín was a much stronger case than Garamendi for the
invalidation of a state law because: (1) the state law was in direct
(not indirect) conflict with (2) a treaty obligation (as opposed to an
executive agreement), and (3) the President instructed Texas to
comply with the treaty obligation. But the Court held that the treaty
was not self-executing and that the President did not have the
417
unilateral power to give domestic effect to the treaty.
Instead,
congressional implementation was needed to require compliance by
Texas. In a logically consistent world, this decision cannot co-exist
with the broad reading of Garamendi, and the Court treated Medellín
as belonging in the niche of claims-settlement cases in which the
President acts pursuant to the implied authority of Congress:
The claims-settlement cases involve a narrow set of circumstances:
the making of executive agreements to settle civil claims between
American citizens and foreign governments or foreign
nationals. . . . They are based on the view that “a systematic,
unbroken, executive practice, long pursued to the knowledge of
the Congress and never before questioned,” can “raise a
presumption that the [action] had been [taken] in pursuance of its
418
consent.”
And as for the President’s unilateral authority to use his foreign
affairs power to change domestic law, the Court returned to original
principles:
[T]he terms of a non-self-executing treaty can become domestic
law only in the same way as any other law—through passage of
legislation by both Houses of Congress, combined with either the
415. 128 S. Ct. 1346 (2008).
416. Id. at 1355–56.
417. Id. at 1368–70.
418. Id. at 1371–72 (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)).
Significantly, the Court did not cite Zschernig.
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President’s signature or a congressional override of a Presidential
veto. Indeed, “the President’s power to see that the laws are
419
faithfully executed refutes the idea that he is to be a lawmaker.
CONCLUSION
Through a historical and structural analysis of Article II, this Article
argues that implied presidential powers must be derived from the
enumerated powers vested in the President. Accordingly, although
the President’s implied powers are few, they include the important
powers of law enforcement and the establishment and
implementation of foreign policy. The President has a broad range
of methods to choose from in exercising these powers. However,
these implied powers cannot change domestic laws or impose new
legal obligations without congressional authorization. The President
cannot legislate by proclamation. Moreover, these implied powers
are subject to congressional regulation. In the event of a conflict
between a statute or treaty and the exercise of an implied presidential
power, the statute or treaty prevails. To hold otherwise would
resurrect the royal suspending power and turn the Take Care Clause
upside down.
The country has changed dramatically since these principles were
made part of the Constitution, but their validity remains
notwithstanding—indeed, perhaps because of—those changes.
Adherence to these principles will not leave the President with less
power than the country needs. Although the Framers gave the bulk
of governmental power to Congress and expected it to be the
strongest force in government, the reality is that the Executive has
become the most powerful branch. Blackstone observed in 1765 that
the real power of the King was much greater than his nominal legal
power. The same is now true for the President.
The nation looks to the President, and not to Congress, for
leadership in dealing with crises, and for good reason. The President
is the only national official who is elected by the entire country. He is
the object of insatiable media attention, which provides him with the
unrivaled ability to advance his policies.
Moreover, with the development of a huge economy that is
integrated both nationally and globally, Congress has passed a
massive number of regulatory laws that would have been beyond the
419. Id. at 1369 (quoting Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure
Case), 343 U.S. 579, 587 (1952)).
2009]
THE LIMITS OF EXECUTIVE POWER
337
imagination of the founding generation. Every law that Congress
passes requires enforcement, and this has in turn resulted in a
tremendous expansion of the size and power of the executive branch.
The very complexity of governing has meant that Congress cannot
micro-manage the country, and it has delegated (or, more accurately,
ceded) a considerable amount of its legislative authority to the
President. This has resulted in a self-reinforcing phenomenon: the
President has much more access to information and expertise, with
broader views of national issues, and can make decisions more
efficiently and decisively than the 535 members of Congress.
With the emergence of the United States as an economic and
military world power, the President has predictably (and perhaps
necessarily) seized the initiative in developing and implementing
foreign policy. To be sure, the President usually needs funding and
other implementing legislation to follow through with these
initiatives, but these are after-the-fact legislative checks of uncertain
strength. Although the Framers envisioned that the President would
serve as a check on an otherwise all-powerful Congress, those roles
are now reversed.
Justice Jackson was aware of these developments nearly two
generations ago, when the power of the presidency was less than it is
now. He understood that the imbalance of power in our government
means that the President does not need more plenary constitutional
powers. “I cannot be brought to believe that this country will suffer if
the Court refuses further to aggrandize the presidential office,
already so potent and so relatively immune from judicial review, at
420
the expense of Congress.”
On the contrary, these developments
make it all the more important that the President be held
accountable to the law:
“With all its defects, delays and
inconveniences, men have discovered no technique for long
preserving free government except that the Executive be under the
421
law, and that the law be made by parliamentary deliberations.”
420. Steel Seizure Case, 343 U.S. at 654 (Jackson, J., concurring).
421. Id. at 655.