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The President, Congress,                          and the Constitution;                         Power and Legitimacy in Am...
,L•/   ‘L                                                                             iu           Copyright © 1984 by The...
54          TUE PRESIDENT, CONGRESS, ANT) THE CONSTITUTION                                                                ...
THE        PRESIDENT,   CONGRESS,   AND THE CONSTITUTION                                                                  ...
5g        Tus PRESIDENT, CONGRESS, AND THE CONSTITUTION                                                                   ...
60       THE Pnrsinanr, Cowcarss,      AND THE   CONSTITUTIONother nations? No other certainly than what subsists between ...
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  1. 1. The President, Congress, and the Constitution; Power and Legitimacy in American Politics written and edited by Christopher H. Pyle and Richard M. Pious THE FREE PRESS A DivLsion of Macmillan, Inc. NEW YORK(Thie 47 on iw [ Collier Macmillan Publishers LONDON
  2. 2. ,L•/ ‘L iu Copyright © 1984 by The Free Press The authors griltefdlly acknowledge permission to reprint the following material: A Division of Macmillan, Inc. Excerpts from Louis Fisher, President dnd Congress, The Free Press, 1972.All rights reserved. No part of this book may be reproduced Copyright © 1972 by The Free Press, A Division of Macmillan Publishing Co., Inc. or transmitted in any form or by any means, electronic or Excerpts from Arthur S. Miller, “The Constitutional Revolution Consolidated: The mechanical, including photocopying, recording, or by anyinformation storage and retrieval system, without permission Rise of the Positive State,” George Washington Law Review 35:2, December 1966, in writing from the Publisher. 172—184. Reprinted with permission of the author. EdwardS. Corwin, “Our Constitutional Revolution,” Pennsylvania BarAssociation The Free Press Quarterly 19. April 1948, 261—284. A Division of Macmillan, Inc. 866 Third Avenue, New York, N.Y. 10022 Richard M. Nixon, “The National Security Power,” The New York Times, May 20, Collier Macmillan Canada, Inc. 1977, p. BlO. Copyright © 1077 by The New York Times Company. Excerpts from Clinton L. Rossfter, Constitutional Dictatorship: Crisis Government Printed in the United States of America in the Modern Democracies. Copyright 1948, © renewed by Princeton University printing number Press. 1 2 3 4 5 6 7 8 9 10 Ronald Goldfarb, “The Permanent State of Emergency,” The Washington Post, January 6, 1974, p. Bi. Reprinted with permission of the author. Excerpts from Barry Goldwater, “Treaty Termination Is a Shared Power,” Library of Congress Cataloging in Publication Data American Bar Association Journal 65, February 1979, 198—200. Pyle, Christopher H. Excerpts from Edward Kennedy, “Normal Relations with China: Good Law, Good The President, Congress, and the Constitution. Policy,” Policy Review, Spring 1979, 126—131. Policy Review is a quarterly journal published by The Heritage Foundation, 513 “C” Street, N.E., Washington, D.C. Bibliography; p. 20002. Includes index. 1. Executive power—United States. 2. Legislative power—United States. 3. Separation of powers—United States. 4. United States—Constitutional law. I. Pious, Richard M. II. United States. Constitution. Ill. Title, KF505.P94 1984 343.73’044 83-48643 ISBN 0-02-925380-2 347.30244
  3. 3. 54 TUE PRESIDENT, CONGRESS, ANT) THE CONSTITUTION Emergency Powers 55themselves with Parliament and the Puritan cause. Their strategy was to heat of the summer in which it was drafted, but also to the confidence thattransform gradually all absolute prerogatives into ordinary ones, which in the delegates placed in George Washington, the man they presumedthe language of the law meant that they could be disputed and, more im would be their first president. The first major test of Washington’s judgportant, would be subject to the doctrine of precedent. One of the earliest, ment came in 1793 and involved the question of who would decide the new and most audacious, assertions of this theory took place on a Sunday in nation’s foreign policy toward the British and French, then at war. Pro- 1612, when King James took offense at the asserted independence of his British Americans, represented by Alexander Hamilton, advocated a judges and raged: “Then I am to be under the law—which it is treason to policy of strict neutrality. Pro-French Americans, led by Thomas Jefferson affirm.” Chief Justice Coke replied: “Thus wrote Bracton, ‘The King and James Madison, urged “benevolent neutrality,” which would keep the ought not to be under any man, but he is under God and the Law.” Of2 country out of direct hostilities, but would permit the French to raise course, Coke was being disingenuous, because the judges claimed the money and troops in the United States and outfit privateers (privately authority to “discover” what the law was, Coke lost that debate and was owned warships) to raid British shipping. Washington issued a Proclama removed from the bench in 1616, but the idea itself could not be stopped. tion of Neutrality which favored the pro-British position and by his action The Puritans and their lawyers also argued that whatever absolute triggered an intense constitutional debate. Did he have the authority to prerogatives the king did possess could only be exercised for the public proclaim neutrality? Hamilton, under the pen name Pacificus, argued that good (salus populi). This concept, which had medieval roots, eventually he did. Madison, writing as Helvidius, insisted that Congress, too, had a became the political justification for the Puritans’ exercise of their “right” role to play in the decision. The opening letters of their debate, published of revolution. in the Gazette of the United States, a Philadelphia newspaper, follow. England underwent two revolutions in the seventeenth century: the Puritan Revolution of 1641—1649 and the so-called Glorious Revolution of 1688. As a result of these parliamentary wars against unpopular kings, subsequent monarchs became the invited guests of Parliament. Parliamen ALEXANDER HAMILTON tary approval of all taxes and imposts was established, and arbitrary ar Pacificus, Letter No. 1, June 29, 1793 rests without charges or bail were ended by legislation guaranteeing the writ of habeas corpus. The continental doctrine of “reasons of state” was largely abandoned, and executive claims of unreviewable authority became reviewable in Parliament, although not always in the courts. 3 It wilL not be disputed that the management of the affairs of this country with By the mid-eighteenth century, the doctrine of royal prerogative had foreign nations is confided to the Government of the UStates. shrunk in fact and theory to a relatively narrow doctrine of emergency It can as little be disputed, that a Proclamation of Neutrality, where a Nation is powers subject to subsequent review by Parliament. One of the emergency at liberty to keep out of a Wr in which other Nations are engaged and means so to prerogatives to survive the rise of Parliament was the greatest of them all, do, is a usttal and a proper measure. the power to declare martial law (i.e., martial rule) as a means of suppress The inquiry then is—what department of the Government of the UStates is the ing insurrection and disorders. Exercise of this prerogative by the royal prop(er) one to make a declaration of Neutrality in the cases in which the governor of Massachusetts in 1776 ignited the American Revolution. engagements (of) the Nation permit and its interests require such a declaration. A correct and well informed mind will discern at once that it can belong neit(her) to the Legislative nor Judicial Department and of course must belong to the Executive. C. The Debate in the Political Arena The Legislative Department is not the organ of intercourse between the UStates and foreign Nations. it is charged neither with making nor interpreting The Neutrality Debate of 1793 Treaties. It is therefore not naturally that Organ of the Government which is to pro flounce the existing condition of the Nation, with regard to foreign Powers, or to ad Like so much of the Constitution, the meaning of Article II had to be monish the Citizens of their obligations and duties as founded upon that condition of worked out in practice. Its brevity and ambiguity were due not only to the things. Still less is it charged with enforcing the execution and observance of these obligations and those duties. 212 Coke 65, 18 Eng. Hist. Rev. 664-75. Campbell, Llve.s of the Chief JustIces, 1(1849), 272. see generally It is equally obvious that the act in question is foreign to the Judiciary Depart 3 the theory and practice of prerogative powers in the seventeenth century, For Francis Worrnuth, The Royal PrerogatIve, 1603—1649 (1939). meat of the Government. The province of that Department is to decide litigations in
  4. 4. THE PRESIDENT, CONGRESS, AND THE CONSTITUTION Emergency Powers 575 If the Legislature have a right to make war on the one hand—it is on the otherparticular cases. It is indeed charged with the interpretation of treaties; but it exer the duty of the Executive to preserve Peace till war is declared; and in fulfilling thatcises this function only in the litigated cases; that is where contending parties bring duty, it must necessarily possess a right of judging what is the nature of the obligabefore it a specific controversy. It has no concern with pronouncing upon the exter tions which the treaties of the Country impose on the Government; and when innal political relations of Treaties between Government and Government. This posi pursuance of this right it has concluded that there is nothing in them inconsistenttion is too plain to need being insisted upon. with a state of neutrality, it becomes both its province and its duty to enforce the It must then of necessity belong to the Executive Department to exercise the laws incident to that state of the Nation. The Executive is charged with the executionfunction in Question—when a proper case for the exercise of it occurs. of all laws, the laws of Nations as well as the Municipal law, which recognises and It appears to be connected with that department in various capacities, as the adopts those laws. It is consequently bound, by faithfully executing the laws oforgan of intercourse between the Nation and foreign Nations—as the interpreter of neutrality, when that is the state of the Nation, to avoid giving a cause of war to the National Treaties in those cases in which the judiciary is not competent, that is in foreign Powers. The Legislature is free to perform its own duties according to its the cases between Government and Covernment----as that Power, which is charged . own sense of them—though the Executive in the exercise of its constitutional with the Execution of the Laws, of which Treaties form a part—as that Power powers, may establish an antecedent state of things which ought to weigh in the which is charged with the command and application of the Public Force. legislative decisions. From the division of the Executive Power there results, in The second Article of the Constitution of the UStates, section 1st, establishes reference to it, a concurrent authority, in the distributed cases, this general Proposition, That “The Executive Power shall be vested in a President of It deserves to be remarked, that as the participation of the senate in the making the United States of America.” of Treaties and the power of the Legislature to declare war are exceptions out of the The same article in a succeeding Section proceeds to designate particular cases general “Executive Power” vested in the President, they are to be construed of Executive Power. It declares among other things that the President shall be Com strictly—and ought to be extended no further than is essential to their execution. mander in Chief of the army and navy of the UStates and of the Militia of the several While therefore the Legislature can alone declare war, can alone actually states when called into the actual service of the UStates that he shall have power by transfer the nation from a state of Peace to a state of War—it belongs to the “Ex and with the advice of the senate to make treaties; that it shall be his duty to receive ecutive Power,” to do whatever else the laws of Nations cooperating with the ambassadors and other public Ministers and to take care that the laws be faithfully Treaties of the Country enjoin, in the intercourse of the UStates with foreign executed. , . Because the difficulty of a complete and perfect specification of all the Powers, cases of Executive authority would naturally dictate the use of general terms—and The President is the constitutional Executor of the laws. Our Treaties and the would render it improbable that a specification of certain particulars was designed laws of Nations form a part of the law of the land. He who is to execute the laws must as a substitute for those terms, when antecedently used. The different mode of ex first judge for himself of their meaning. In order to the observance of that conduct, pression employed in the constitution in regard to the two powers the Legislative which the Laws of nations combined with our treaties prescribed to this country, in and the Executive serves to confirm this inference. In the article which grants the reference to the present War in Europe, it was necessary for the President to fudge legislative powers of the Covernt. the expressions are— “All Legi.slative powers for himself whether there was any thing in our treaties incompatible with an herein granted shall be vested in a Congress of the UStates; “in that which grants the adherence to neutrality. Having judged that there was not, he had a right, and if in Executive Power the expressions are, as already quoted “The Executive Po(wer) his opinion the interests of the Nation required it, it was his duty, as Executor of the• shall be vested in a President of the UStates of America.” laws, to proclaim the neutrality of the Nation, to exhort all persons to observe it, and The enumeration ought rather therefore to be considered as intended by way to warn them of the penalties which would attend its non observance. of greater caution, to specify and regulate the principal articles implied in the defini tion of Executive Power; leaving the rest to flow from the general grant of that Works of Alexander Hamilton, 7 (Hamilton ed., 1851), 76—85. power, interpreted in conformity to other parts (of) the constitution and to the prin ciples of free government. The general doctrine then of our constitution is, that the Executive Power of the Nation is vested in the President; subject only to the exceptions and qu[ajlifica tions which are expressed in the instrument. With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recog nized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.
  5. 5. 5g Tus PRESIDENT, CONGRESS, AND THE CONSTITUTION Emergency Powers 59 Another important inference to be noted is, that the powers of making war and JAMES MADISON treaty being substantially of a legislative, not an executivenature, the rule of inter Helvidius, Letter No. 1, August—September, 1793 preting exceptions strictly must narrow, instead of enlarging, executive pretensions on those subjects.. . . - Let us examine: In the general distribution of powers, we find that of declaring war expresslyOutraged by Hamilton’s argument in favor of implied powers, Jefferson vested in the congress, where every other legislative power is declared to be vested;wrote to Madison: “For God’s sake, my dear Sir, take up your pen, select and without any other qualification than what is common to every other legislativethe most striking heresies, and cut him to pieces in the face of the public.”’ act. The constitutional idea of this power would seem then clearly to be, that it is ofThe first of Madison’s five articles follows. a legislative and not an executive nature. The power of treaties is vested jointly in the president and in the senate, which If we consult, for a moment, the nature and operation of the two powers to is a branch of the legislature. From this arrangement merely, there can be no indeclare war and to make treaties, it will be impossible not to see, that they can never ference that would necessarily exclude the power from the executive class: since thefall within a proper definition of executive powers. The natural province of the ex senate is joined with the president in another power, that of appointing to offices,ecutive magistrate is to execute laws, as that of the legislature is to make laws. All his which, as far as relate to executive offices at least, is considered as of an executiveacts, therefore, properly executive, must presuppose the existence of the laws to be nature. Yet on the other hand, therc are sufficient indications that the power ofexecuted. A treaty is not an execution of laws; it does not presuppose the existericeof treaties is regarded by the constitution as materially different from mere executivelaws. It is, on the contrary, to have itself the force of a law, and to be carried into ex power, and as having more affinity to the legislative than to the executive character.ecution, like all other laws, by the executive magistrate. To say then that the power One circumstance indicating this, is the constitutional regulation under whichof making treaties, which are confessedly laws, belongs naturally to the department the senate give their consent in the case of treaties. In all other cases, the consent ofwhich is to execute laws, is to say, that the executive department naturally includes a the body is expressed by a majority of voices. In this particular case, a concurrence of legislative power. In theory this is an absurdity—in practice a tyranny. two-thirds at least is made necessary, as a substitute or compensation for the other The power to declare war is subject to similar reasoning. A declaration that branch of the legislature, which, on certain occasions, could not be conveniently a there shall be war, is not an execution of laws: it does not suppose pre-existing laws party to the transaction. to be executed: it is not, in any respect, an act merely executive. It is, on the con But the conclusive circumstance is, that treaties, when formed according to the trary, one of the most deliberate acts that can be performed; and when performed, constitutional mode, are confessedly to have force and operation of laws, and are to has the effect of repealing all the laws operating in a state of peace, so far as they are be a rule for the courts in controversies between man and man, as much as any other inconsistent with a state of war; and of enacting, as a rule for the executive, a new laws. They are even emphatically declared by the constitution to be ‘the supreme code adapted to the relation between the society and its foreign enemy. In like man ; law of the land.” ner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives : “The president shall be commander in chief of the army and navy of the United the general laws incident to a state of peace. : States, and of the militia when called into the actual service of the United States.” From this view of the subject it must be evident, that although the executive There can be no relation worth examining between this power and the general may be a convenient organ of preliminary communications with foreign govern power of making treaties. And instead of being analogous to the power of declaring ments, on the subjects of treaty or war; and the proper agent for carrying into execu war, it affords a striking illustration of the incompatibility of the two powers in the tion the final determinations of the competent authority; yet it can have no preten same hands. Those who are to conduct a war cannot in the nature of things, be sions, from the nature of the powers in question compared with the nature of the proper or safe judges, whether a war ought to be commenced, continued, or con executive trust, to that essential agency which gives validity to such determinations . eluded. They are barred from the latter functions by a great principle in free govern It must be further evident, that if these powers be not in their nature purely meat, analogous to that which separates the sword from the purse, or the power of legislative, they partake so much more of that, than of any other quality, that under executing from the power of enacting laws. a constitution leaving them to result to their most natural department, the He shall take care that the laws shall be faithfully executed, and shall cornmis legislature would be without a rival in its claim. sion all officers of the United States.” To see the laws faithfully executed constitutes the essence of the executive authority. But what relation has it to the power of mak ‘Jefferson, Writings, VI (Ford ed. 1892—1899), 338. i ing treaties and war, that is, of determining what the laws shall be with regard to
  6. 6. 60 THE Pnrsinanr, Cowcarss, AND THE CONSTITUTIONother nations? No other certainly than what subsists between the powers of executing and enacting laws; no other, consequently, than what forbids a coalition ofthe powers in the same department. Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It iscountenanced neither by the writers on law; nor by the nature of the powersthemselves; nor by any general arrangements, or particular expressions, or plausible analogies, to he found in the constitution. Whence then can the writer have borrowed it? There is hut one answer to this question. The power of making treaties and the power of declaring war, are royalprerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators. Madison, Writings, 1 (Hunt ed. 1906), 611—21.Notes and Questions 1. Construing silences in the Constitution. Hamilton and Madison agree that a neutrality proclamation is a diplomatic power, but they disagree over which branch that power should be assigned to in the absence of explicit constitutional language. How does Hamilton assign the power to the president? Why would his method of construing silences lead to a vast expansion of presidential power in other areas? Why would Madison’s approach to silences lead to greater authority for Congress and an executive with limited powers? 2. The executive power. Madison argues that “the natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. Ml his acts, therefore, properly executed, must presuppose the existence of laws to be executed.” Would Hamilton agree? What does Hamilton mean by referring to executive power as a “general grant”? .. What limits on this general grant does Hamilton recognize? These issues will be considered in Section D of this chapter, “Claims to Inherent Ex- ecutive Power and the Supreme Court.” 3 3. Tyranny. On what grounds does Madison argue that to assign 1 diplomatic powers to the president, with only such exceptions as are ex- .5 plicitly provided for in the Constitution, would result in a “tyranny”? 3 What other writers on separation of powers viewed tyrannical government from this perspective? I