The Constitution of the United States of America: Analysis and Interpretation Part 75

[1780] Article VI.

[1781] 14 Pet. 540 (1840).

[1782] Ibid. 570, 571, 572.

[1783] 148 U.S. 503, 518 (1893). _See also_ Stearns _v._ Minnesota, 179 U.S. 223, 244 (1900); _also_ reference in next note, at pp. 761-762.

[1784] _See_ Leslie W. Dunbar, Interstate Compacts and Congressional Consent, 36 Virginia Law Review, 753 (October, 1950).

[1785] Frankfurter and Landis, The Compact Clause of the Const.i.tution--A Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925); Frederick L. Zimmerman and Mitch.e.l.l Wendell, Interstate Compacts Since 1925 (1951), 8 Book of States, 26 (1950-1951).

[1786] 48 Stat. 909 (1934).

[1787] 8 Book of the States, 45 (1950-1951).

[1788] 7 U.S.C. -- 515; 15 U.S.C. -- 717j; 16 U.S.C. ---- 552, 667a; 33 U.S.C. ---- 11, 567-567b.

[1789] Green _v._ Biddle, 8 Wheat. 1, 85 (1823).

[1790] Virginia _v._ Tennessee, 148 U.S. 503 (1893).

[1791] Virginia _v._ West Virginia, 11 Wall. 39 (1871).

[1792] Wharton _v._ Wise, 153 U.S. 155, 173 (1894).

[1793] James _v._ Dravo Contracting Co., 302 U.S. 134 (1937). _See also_ Arizona _v._ California, 292 U.S. 341, 315 (1934).

[1794] 332 U.S. 631 (1948).

[1795] On the activities of the Board, in which representatives of both races partic.i.p.ate and from which both races have benefited, _see_ Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong., 2d sess., v. 96, p. 465-470.

[1796] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433 (1856).

[1797] St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545, 562 (1896).

[1798] Poole _v._ Fleeger, 11 Pet. 185, 209 (1837); Rhode Island _v._ Ma.s.sachusetts, 12 Pet. 657, 725 (1838).

[1799] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104, 106 (1938).

[1800] Green _v._ Biddle, 8 Wheat. 1, 13 (1823); Virginia _v._ West Virginia, 246 U.S. 565 (1918). _See also_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518, 566 (1852); Olin _v._ Kitzmiller, 259 U.S. 260 (1922).

[1801] Virginia _v._ West Virginia, 246 U.S. 565, 601 (1918).

[1802] Dyer _v._ Sims, 341 U.S. 22 (1951). The case stemmed from mandamus proceedings brought to compel the auditor of West Virginia to pay out money to a commission which had been created by a compact between West Virginia and other States to control pollution of the Ohio River. The decision of the Supreme Court of Appeals of West Virginia denying mandamus was reversed by the Supreme Court, and the case remanded. The opinion of the Court, by Justice Frankfurter, reviews and revises the West Virginia Court's interpretation of the State const.i.tution, thereby opening up, temporarily at least, a new field of power for judicial review. Justice Reed, challenging this extension of judicial review, thought the issue determined by the Supremacy Clause.

Justice Jackson urged that the compact power was "inherent in sovereignty" and hence was limited only by the requirement of congressional consent. Justice Black concurred in the result without opinion.

ARTICLE II

EXECUTIVE DEPARTMENT

Section 1. The President: Page Clause 1. Powers and term of the President 377 Nature and scope of Presidential power 377 Contemporary source of the Presidency 377 Presidency in the federal convention 378 Executive power; Hamilton's contribution 378 Myers case 379 Curtiss-Wright case 380 Theory of the Presidential office 380 Term of four years 382 Anti-third term tradition 382 Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications, succession, compensation, and oath of the President 383 Maintenance of the office of President 384 "Electoral college" 384 Const.i.tutional status of electors 385 "Natural-born citizen" 386 Presidential succession 387 Act of 1792 387 Acts of 1886 and 1947 388 Compensation and emoluments 388 Oath of office 388 Effect of the oath 389 Section 2. Powers and duties of the President 389 Clause 1. Commander in chiefship; opinions from heads of departments; pardons 389 Commander in chiefship 389 Historical 389 Prize cases 390 Impact of the Prize cases on World Wars I and II 391 Presidential theory of the commander in chiefship in World War II 392 Presidential war agencies 393 Const.i.tutional status of Presidential agencies 394 West Coast j.a.panese 394 Act of March 21, 1942 395 Presidential government of labor relations 395 "Sanctions" 397 Const.i.tutional basis of sanctions 397 Martial law and const.i.tutional limitations 398 Martial law in Hawaii 400 Case of the n.a.z.i saboteurs 401 War crimes cases 402 President as commander of the forces 403 Commander in chief a civilian officer 404 Presidential advisers 405 The Cabinet 405 Pardons and reprieves 406 Legal nature of a pardon 406 Qualification of above theory 407 Scope of the power 408 "Offenses against the United States"; contempt of court 408 Effects of a pardon: Ex parte Garland 409 Limits to the efficacy of a pardon 410 Congress and Amnesty 411 Clauses 2 and 3. Treaties and appointment of officers 412 Treaty-making power 412 President and Senate 412 Negotiation a Presidential monopoly 412 Treaties as law of the land 413 Origin of the conception 414 Treaty rights versus State power 415 Recent cases 417 When is a treaty self-executing; when not 417 Const.i.tutional freedom of Congress with respect to treaties 418 Treaty-making power and revenue laws 419 Congressional repeal of treaties 420 Treaties versus prior acts of Congress 421 Interpretation and termination of treaties as international compacts 423 Termination of treaties by notice 423 Determination whether a treaty has lapsed 425 Status of a treaty a political question 426 Treaties and the "necessary and proper" clause 426 Const.i.tutional limits of the treaty-making power: Missouri _v._ Holland 428 Indian treaties 431 Present status of Indian treaties 432 International Agreements without Senate approval 433 Routine executive agreements 433 Law-making executive agreements 434 President McKinley's contribution 435 Executive agreements affecting Far Eastern Relations 436 International obligation of executive agreements 436 Litvinov agreement of 1933 437 United States _v._ Belmont 437 United States _v._ Pink; National supremacy 438 Hull-Lothian agreement, 1940 439 War-time agreements 440 Executive agreements by authorization of Congress 441 Reciprocal trade agreements 441 Const.i.tutionality of trade agreements 442 Lend-Lease Act 443 President plus Congress versus Senate 443 Arbitration agreements 444 Agreements under the United Nations Charter 444 United Nations Partic.i.p.ation Act 445 Executive establishment 445 "Office" 445 "Amba.s.sadors and other public ministers" 445 Presidential diplomatic agents 447 Congressional regulation of offices 449 Conduct in office 450 The loyalty issue 451 Legislation increasing duties of an officer 452 "Inferior officers"; "employees" 452 Stages of appointment process 453 Nomination 453 Senate approval 453 When Senate consent is complete 453 Commissioning the officer 454 Recess appointments 455 Ad interim designations 455 Removal power; Myers case 455 "Nature of the office" concept 458 Humphrey case 458 Other phases of the removal power 459 Presidential aegis 460 Section 3. Legislative, diplomatic, and law enforcement duties of the President 462 Legislative role of the President 462 Right of Reception 463 Scope of the power 463 A Presidential monopoly 464 "The Logan Act" 464 A formal or a formative power 465 President's diplomatic role 465 Jefferson's real position 466 Power of recognition 467 The case of Cuba 468 Power of nonrecognition 469 President and Congress 470 Congressional implementation of Presidential policies 471 Doctrine of political questions 471 Recent statements of the doctrine 473 The President as law enforcer 475 Types of executive power 475 How the President's own powers are exercised 476 Power and duty of the President in relation to subordinate executive officers 478 Administrative Decentralization _v._ Jacksonian Centralism 478 Congressional Power _v._ Presidential Duty to the Law 479 Myers Case _v._ Humphrey Case 480 Power of the President to guide enforcement of the penal law 481 President as law interpreter 481 Military power in law enforcement: the posse comitatus 482 Suspension of Habeas Corpus by President 484 Preventive martial law 484 Debs case 484 Status of the Debs case, today 485 President's duty in cases of domestic violence 486 President as executive of the law of nations 486 Protection of American rights of person and property abroad 487 Presidential world policing 488 The Atlantic Pact 488 Presidential action in the domain of Congress: Steel Seizure Case 489 Presidential immunity from judicial direction 499 President's subordinates and the courts 500 Section 4. Impeachment 501 Impeachment 501 "Civil" officer 501 "High crimes and misdemeanors" 502 Chase impeachment 502 Johnson impeachment 503 Later impeachments 503

EXECUTIVE DEPARTMENT

Article II

Section 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

The Nature and Scope of Presidential Power

CONTEMPORARY SOURCE OF THE PRESIDENCY

The immediate source of article II was the New York const.i.tution of 1777,[1] of which the relevant provisions are the following: "Art.

XVIII. * * * The governor * * * shall by virtue of his office, be general and commander in chief of all the militia, and admiral of the navy of this state; * * * he shall have power to convene the a.s.sembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the s.p.a.ce of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason and murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve.

"Art. XIX. * * * It shall be the duty of the governor to inform the legislature at every session of the condition of the State so far as may concern his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.

"To these, of course, are to be added the important powers of qualified appointment and qualified veto. It is to be observed also that there is no question of the interposition of the law of the land to regulate these powers. They are the governor's, by direct grant of the people, and his alone. Another distinguishing characteristic, equally important, is the fact that the governor was to be chosen by a const.i.tutionally defined electorate, not by the legislature. He was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. In short, all the isolated principles of executive strength in other const.i.tutions were here brought into a new whole. Alone they were of slight importance; gathered together they gain new meaning. And, in addition, we have new elements of strength utilized for the first time on the American continent."[2] The appellation "President" appears to have been suggested to the Federal Convention by Charles Pinckney,[3] to whom it may have been suggested by the t.i.tle at that date of the chief magistrate of Delaware.

THE PRESIDENCY IN THE FEDERAL CONVENTION

The relevant clause in the Report from the Committee of Detail of August 6, 1787 to the Federal Convention read as follows: "The Executive Power of the United States shall be vested in a single person. His stile shall be 'The President of the United States of America'; and his t.i.tle shall be 'His Excellency.'"[4] This language recorded the decision of the Convention, sitting in committee of the whole, that the national executive power should be vested in a single person, not a body. For the rest, it is a simple designation of office. The final form of the clause came from the Committee of Style,[5] and was never separately acted on by the Convention.

"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION

Is this term a summary description merely of the powers which are granted in more specific terms in succeeding provisions of article II, or is it also a grant of powers; and if the latter, what powers specifically does it comprise? In the debate on the location of the removal power in the House of Representatives in 1789[6] Madison and others urged that this was "in its nature" an "executive power";[7] and their view prevailed so far as executive officers appointed without stated term by the President, with the advice and consent of the Senate, were concerned. Four years later Hamilton, in defending President Washington's course in issuing a Proclamation of Impartiality upon the outbreak of war between France and Great Britain, developed the following argument: "The second article of the Const.i.tution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.' The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive amba.s.sadors and other public ministers, _and to take care that the laws be faithfully executed._ It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a subst.i.tute for those terms, when antecedently used. The different mode of expression employed in the const.i.tution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are, 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expressions are, 'The _executive power_ shall be vested in a President of the United States.' The enumeration ought therefore to be considered, as intended merely to specify the princ.i.p.al articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Const.i.tution, and with the principles of free government. The general doctrine of our Const.i.tution then is, that the _executive power_ of the nation is vested in the President; subject only to the _exceptions_ and _qualifications_, which are expressed in the instrument."[8]

THE MYERS CASE

These enlarged conceptions of the executive power clause have been ratified by the Supreme Court within recent times. In the Myers case,[9]

decided in 1926, not only was Madison's contention as to the location of the removal power adopted, and indeed extended, but Hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court: "The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, * * *"[10]

THE CURTISS-WRIGHT CASE

Ten years later Justice Sutherland, speaking for the Court in United States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception of the President's role in the foreign relations field to the conception that in this field the National Government is not one of enumerated but of inherent powers;[12] and the practical conclusion he drew was that the const.i.tutional objection to delegation of legislative power does not apply to a delegation by Congress to the President of its "cognate"

powers in this field; that, in short, the merged powers of the two departments may be put at the President's disposal whenever Congress so desires.[13]