th
AMERIAN
VOL. 22-NO. 4
SUMMER 1973
LAW
VOLUME
22
SUMMER
1-973
NUMBER
4
THE CONSTITUTIONAL
LIMITATIONS ON THE PRESIDENT'S
POWERS
ARTHUR
J. GOLDBERG*
INTRODUCTION
The executive and legislative branches of our government are currently engaged in a constitutional confrontation on three fronts-the
war power, executive agreements, and executive privilege. While Congress views the repeated exercises of presidential war power as "unilateral" and therefore unauthorized, the executive views its war actions,
particularly in Indochina, as a proper exercise of presidential prerogatives. The conflicting positions of the parties notwithstanding, the Vietnam War dramatized what may fairly be described as a recent concentration of governmental power in the Executive, one effect of which has
* The Author has served as Associate Justice of the Supreme Court, United States
Ambassador to the United Nations, and Secretary of Labor. Currently he is a Professor
of Law and Diplomacy at the American University.
The Author gratefully acknowledges the assistance of Mr. Richard A. Zappa, a
third year student at the American University, Washington College of Law, in preparation of this article.
668
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
been the erosion of Congress' war declaring role. And the post-Vietnam
bombings of Cambodia is further evidence of just how deeply entrenched this accumulation of presidential war power has become.
However, not only is Congress' power to declare war being eroded,
but its power to end war is also in jeopardy. Treaties, which once served
as a means of senatorial, hence, quasi-legislative approval of presidential peace-making activities, all too often, have been replaced by secret
negotiations and executive agreements.
This process of centralization of power in the executive is partially
the result of Congress' own neglect. Congress in the past has been too
prone to rely upon information from the President rather than conduct
its own inquiries. Congress' past reluctance to require administration
officials to disclose pertinent information to it is in a measure due to a
misunderstanding of the scope of the executive privilege against disclosures. This has been particularly true in recent years with Vietnam,
where congressional investigation has been largely ex post facto. Correspondingly, congressional action has tended toward disapproval after
the fact and consequently often too late. Though Congress sees itself in
partnership with the President "for the good of the nation," that attitude may well be at an end because of Vietnam and perhaps, more
because of Watergate.
I.
A.
CONFRONTATION OVER THE WAR POWER
Allocation of the War Power
The expansion of presidential power in the conduct of foreign relations threatens to destroy our system of separation of powers in the war
power area.' Relying on notions of the scope of their power as Commander in Chief, recent Presidents have unilaterally determined whether
this nation should engage in prolonged hostilities abroad. In doing so,
the Executive has pursued an hegemonous course into the war power
domain of Congress which has lead to the usurpation of Congress' war
2
declaring role.
1. See Fulbright, Congress, the President and the War Power, 25 ARK. L. REv. 71
(1971). See also Hearings on S.731, S.J. Res. 18 and S.J. Res. 59, Before the Senate
Comm. on Foreign Relations, 92d Cong., 1st Sess. 128 (1971) (Statement of Senator
Javits) [hereinafter cited as Foreign Relations Comm. Hearings].
2. See Velvel, The Constitution and the War: Some Major Issues, 49 J. URBAN L.
231, 239 (1971). In an addendum to his article, Velvel warns that "the Executive's
hegemony over Congress appears to be increasing, with a concomitantly increasing
breakdown in separation of powers." Id. at 294. He cites as recent examples, the
1973]
THE CONSTITUTIONAL LIMITATIONS
The arguments that allegedly support a broad-based presidential prerogative to wage war in the absence of a congressional declaration of
war, have been rebutted by other commentators. 3 Yet, while the war
power issue can be resolved on academic grounds by reference to one
document-the Constitution-the prevention of future unauthorized
uses of the war power by the President will only come about when
Congress forcibly reasserts itself by legislating in this vital area. The
proposed War Powers Act' discussed later in this section 5 represents the
best effort to date by the Senate to restore our constitutional scheme.
"Nothing in the Constitution is plainer," Justice Jackson observed in
the Steel Seizure Case,6 "than that declaration of a war is entrusted only
to Congress." 7 Indeed the Constitution is unambiguous and unequivocal
in conferring this most important facet of the war power on the Legislature: "Congress shall have power . . . to declare war."' One does not
have to be a jurist or a lawyer to understand these explicit words; nor
does one have to be an historian, although the constitutional debates are
clear that Congress was entrusted with the power to sanction the use of
the sword. In fact, the question of the meaning of the war-making power
vis-a-vis the President, which has caused so much consternation in recent years, was confronted, debated, and answered by the delegates to
the Philadelphia convention in August 1787. In agreeing to give Congress the power "to declare war" as opposed "to make war," the delegates made it clear that the President was given only a limited mandate
to repel sudden attacks against the United States The President's rePresident's basic economic policy decision to freeze wages and prices, the Executive's
refusal to submit its five year military aid plans to Congress, and the Administration's
unwillingness to have the President's primary foreign policy advisor testify before Congress. Id.
3. See, e.g., Wormuth, The Nixon Theory of the War Power: A Critique, 60 CALIF.
L. REV. 623 (1972) [hereinafter cited as Wormuth]. Some of the leading criticisms of
presidential war power by individual Senators are contained in the following articles:
Eagleton, Congress and the War Powers, 37 Mo. L. REV. 1(1972); Spong, Can Balance
Be Restored in the Constititional War Powers of the President and Congress?, 6 U.
RICHMOND L. REV. 1 (1971); Fulbright, Congress, the President and the War Power,
25 ARK. L. REV. 71 (1971). See also Note, Congress, the President and the Power to
Commit Forces to Combat, 81 HARV. L. REV. 1771 (1968).
4. S.440, 93d Cong., Ist Sess. (1973).
5. See text accompanying notes 101-31 infra.
6. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
7. Id. at 642 (Jackson, J., concurring).
8. U.S. CONST. art. I, § 8, cl. 11.
9. 2 M.
FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF
1787, at 318-19
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
pelling power is by definition a defensive exercise of force 0 and was
conferred solely to provide the President with the power to respond to
a surprise attack or to forestall an invasion against this nation until
Congress could act. It was by no means a mandate to Presidents to
initiate hostilities abroad in the absence of a congressional declaration
of war. As one convention delegate would later recount:
It is improbable that a single member of the convention would have
signed his name to the Constitution if he had supposed that the instrument might be construed as authorizing the President to initiate a war,
either general or partial without express authorization of Congress."
Indeed, in a trilogy of early cases, 2 the Supreme Court gave sanctity to Congress' war-making prerogative acknowledging that Congress
may authorize general or limited hostilities. In Bas v. Tingy 3 Justice
Chase said: "Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time."' 4
Viewing the "limited war" as an "imperfect war," but nevertheless
within the exclusive province of Congress to authorize, 5 Justice Pater(rev. ed. 1937). That the delegates intended no greater mandate to the President than
that he possess the power to repel sudden invasions has precedential support in the
Articles of Confederation. In precise and emphatic language Article IX provided that
"The United States in Congress assembled, shall have the sole and exclusive right and
power of determining on peace and war .... " M. FARRAND, THE FRAMING OF THE
CONSTITUTION 216 (1913). Compare Penhallow v. Doane, 3 U.S. (3 DalI.) 44, 64-66
(1795) (Paterson, J., describing the war powers of the Continental Congress). Notwithstanding the desire of the Convention's delegates to create a more functional governmental structure than that effected under the Articles, it is beyond belief that any
substantial shift in war power from Congress to the Executive branch was intended. See
generally Note, The War-Making Power: The Intentions of the Framers in the Light
of ParliamentaryHistory, 50 B.U.L. REV. 5 (Special Issue 1970).
10. Professor Bikel comments:
The "sudden attack" concept of the framers . . .denotes a power to act in
emergencies in order to guard against the threat of attack, as well as against the
attack itself, .... So long as it is understood that this is a reactive, not a selfstarting affirmative power, I have no trouble agreeing that it is vested in the
President by the Constitution .....
Foreign Relations Comm. Hearings,supra note 1, at 553.
I1.Putney, Executive Assumption of the War-Making Power, 7 NAT'L U.L. REV.
5-6 (1927), quoting Pierce Butler of South Carolina.
12. Bas v. Tingy, 4 U.S. (4 DalI.) 32 (1800); Talbot v. Seeman, 5 U.S. (1 Cranch) 1
(1801); Little v. Barreme, 6 U.S. (2 Cranch) 99 (1804).
13. 4 U.S. (4 DalI.) 32 (1800).
14. Id. at 38.
15. Id. at 40 (Paterson, J., concurring). Justice Washington also concurred, stating
1973]
THE CONSTITUTIONAL LIMITATIONS
son went on to say that Congress may circumscribe presidential conduct
during the course of a limited war. "As far as Congress tolerated and
authorized the war on our part, so far may we proceed in hostile opera-
tions."' 6 Again, in Talbot v. Seeman,1 7 Chief Justice Marshall recognized that "[t]he whole powers of war being, by the Constitution of the
United States, vested in congress . . . congress may authorize general
". Later, in Little v.
hostilities . . or partial hostilities .. ."Is
Barreme,"9 Marshall made it clear that not only may Congress authorize
any congrespartial hostilities, but the President must strictly observe
20
sional limitations placed on his conduct of the war.
That Congress was to be the sole repository of the war-making power
is confirmed by other provisions of the Constitution. Congress was given
the power "[t]o provide for the Common Defense21 . . . [t]o raise and
support Armies 22 . . . [t]o provide and maintain a Navy 23 . . . [t]o
that "every contention by force, between two nations in external matters, under the
authority of their respective governments, is not only war; but public war." Id. at 35.
Justice Washington distinguished between "solemn" wars and "imperfect" wars, the
former being a reference to formally declared wars, the latter a reference to wars which
lacked a specific declaration by Congress. Id. at 35-36. See Prize Cases, 67 U.S. (2
Black) 876, 879 (1862). "War has been well defined to be, 'That state in which a nation
prosecutes its right by force.'"
16. 4 U.S. (4 Dall.) at 40. Justice Chase elucidating on the boundaries of the
Commander in Chief's war-waging power made the further comment that:
If a general war is declared, its extent and operations are only restricted and
regulated by thejus belli, forming a part of the law of nations; but if a partial
war is waged, its extent and operation depend on our municipal laws.
Id. Thus where general hostilities are declared by Congress, the President is said to
possess all the common law war powers which are accorded by international law to any
supreme commander. He may, for example, invade a hostile country and subject it to
the sovereignty of the United States. Fleming v. Page, 50 U.S. (9 How.) 634, 646-47
(1850). The President may seize friendly property and compel services from American
citizens and friendly aliens who are situated in a war zone when necessity requires.
United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Mitchell v. Harmony, 54 U.S.
(13 How.) 126 (1851). The President's common law war powers are, however, subject
to both constitutional and congressional limitations. See, e.g., U.S. CONST. amend. V;
54 U.S. (13 How.) at 127; Brown v. United States, 12 U.S. (8 Cranch) 64 (1814). See
generally Wormuth, supra note 3, at 641-52.
17. Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801).
18. Id. at 18.
19. Little v. Barreme, 6 U.S. (2 Cranch) 99 (1804).
20. Id. at 103.
21. U.S. CONST. art. I, § 8, cl. 1.
22. Id. at cl.12.
23. Id. at cl.13.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
make rules for the Government and Regulation of the land and naval
forces. ..,,2and the residuary power "[t]o make all Laws necessary
and proper for carrying into Execution the foregoing powers .... -21
Additionally, by conferring on Congress the exclusive power over ap-
propriations 2 and by limiting military appropriations to two year periods,21 the Constitution equips Congress with a potentially formidable
check against possible expansion of presidential war power .2 s
Moreover, the scope of congressional war power is extensive. During
hostilities, the war power enables Congress to regulate, to a considerable
2
degree, the conduct of warY.
It also enables Congress to regulate the
conduct of and the property rights of enemies, allies, and neutrals. 3° But
the war power of Congress is neither born with a declaration of war nor
24. Id. at cl.14.
25. Id. at cl.18.
26. Id. at § 9, cl. 7.
27. "The Congress shall have Power . . . To raise and support Armies, but no
Appropriation of Money to that Use shall be for a longer Term than two Years." U.S.
CONST. art. I § 8, cl.12. The general appropriation power of Congress was purposely
circumscribed respecting military appropriations in order to reduce the threat to liberty
posed by a large standing army. By requiring legislative authorization of funds every
two years, Congress could keep a watchful eye and a fairly constant check on the size
and propriety of a standing army. THE FEDERALIST No.27, at 170 (J. Cooke ed. 1961)
(A. Hamilton) [hereinafter cited as THE FEDERALIST].
28. Theoretically, the appropriations authority of Congress under article 1,section
8, clause 12 gives the Legislature awesome power over the Executive in the war power
area. Hamilton noted that "[T]he Legislature
. .
.will be obliged, by this provision,
once at least every two years, to deliberate upon the propriety of keeping a military force
on foot
. .
." and that "They are not at liberty to vest in the Executive department,
permanent funds for the support of an army; if they [Congress] were even incautious
enough to be willing to repose in it so improper a confidence." THE FEDERALIST No.
26, at 168 (A. Hamilton). Congress therefore, can reduce the size of the army by
reducing the size of appropriations and can, at least theoretically, do away with a
standing army altogether by refusing to replenish the military fund after current appropriations are exhausted; a measure I would certainly not support. Cf. J. STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1187 (4th ed. 1873).
But see Lovett v. United States, 66 F. Supp. 142, 152 (Ct. Cl. 1945) (Madden, J.,
concurring) "I do not think
. . .
that the power of the purse may be constitutionally
exercised to produce. . . a trespass upon the constitutional functions of another branch
of the Government." aff'd, 328 U.S. 303, 328-29 (1946) (Frankfurter, J., concurring);
United States v. Butler, 297 U.S. 1, 74 (1936).
29. See Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866); U.S. v. Macintosh, 283
U.S. 605, 622 (1931). See notes 12-28 supra and accompanying text.
30. See, e.g., Enemy Alien Act of 1798, ch. 66, § 1, 1 Stat. 577. See also Ludecke v.
Watkins, 335 U.S. 160 (1948).
1973]
THE CONSTITUTIONAL LIMITATIONS
terminated with the advent of peace. 31 Such power properly and neces-
sarily enables Congress to take action to prepare for 32 and prevent
against the possibility of war, 33 and to deal with the aftermath and
consequences of war.
While it is indisputable that the Constitution gives Congress the lion's
share of the war power, the President is not without a role in the pro-
cesses of waging war. The Constitution provides that the President, as
34
Commander in Chief, shall have command over the armed forces.
The Commander's role, however, is a limited one. It was originally
conceived as merely placing the President at the top of the military
pyramid 35 whose principal duty extended to directing the conduct of
war as declared by Congress.36 Therefore, apart from a proper exercise
of the responding or repelling power,37 the Commander, in the absence
of a declaration of war by Congress, possesses no semblance of constitutional authority to commit this nation to a war against any other nation.
Viewed conceptually, the Commander's role is that of executor and
never that of legislator. For even as Commander in Chief, the -President
must adhere to his primary duty as Chief Executive and thereunder
"faithfully observe and execute the laws."' 38 These laws extend neces-
sarily to congressional proclamations as to when and how war shall be
31. L.
HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION
71 (1972). Cessation of
hostilities does not end the war power of Congress. See Fleming v. Mohawk Wrecking
& Lumber Co., 331 U.S. 111, 116 (1947); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 161 (1919); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507
(1870).
32. See, e.g., Selective Draft Law Cases, 245 U.S. 366 (1918) (Court upheld congressional power to pass laws establishing compulsory military conscription).
33. See 78 U.S. ( 1I Wall.) at 507 ("[Congress' war power] carries with it inherently
the power to guard against the immediate renewal of the conflict, and to remedy the
evils which have arisen from its rise and progress.)
34. U.S. CONST. art. II, § 2.
35. Note, Congress, The Presidentand the Power to Commit Forces to Combat, 81
HARV. L. REV. 1771, 1773 (1968). Even Hamilton, a staunch promoter of a strong
executive, equated the Commander's role to that of "first general and admiral of the
confederacy" and viewed the President's powers as Commander in Chief as amounting
"to nothing more than the supreme command and direction of the military and naval
forces. . . ."THE FEDERALIST No. 69, at 465 (A. Hamilton). See also Fleming v. Page,
50 U.S. (9 How.) at 614 ("His duty and his power are purely military. As commanderin-chief, he is authorized to direct the movements of the naval and military forces placed
by law at his command ..... ").
36. See 6 U.S. (2 Cranch) 99. See note 24 supra.
37. See note 9 supra and accompanying text.
38. U.S. CONST. art. II, § 3.
674
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
conducted.
"The Constitution," Chief Justice Stone said in Ex Parte
3
Quirin 9
invests the President as Commander in Chief with the power to wage war
which Congress has declared and to carry into effect all laws passed by
Congress for the conduct of war ....
41
In Ex ParteMilligan,4 Mr. Justice Chase elucidated upon the demarcation that exists between the legislative war power of Congress and the
executory nature of the Commander's duties.
Congress has the power not only to raise and support and govern armies
but to declare war. It has, therefore, the power to provide by law for
carrying on war. This power necessarily extends to all legislation essential
to the prosecution of war with vigor and success, except such as interferes
with the command of the forces and conduct of campaigns. That power
and duty belong to the President as commander-in-chief.2
The constitutional role of Congress, therefore, is not merely to legislate
war into existence.43 It extends far beyond that, permitting Congress
to legislate regarding the scope of hostilities to be engaged in4 and the
general course and conduct of war to be pursued. 5
The Constitution does not subject the lawmaking power of Congress to
Presidential or military supervision or control. .
.
. [T]he founders of
this Nation entrusted the lawmaking power to the Congress alone in both
good and bad times."
39. 317 U.S. 1 (1942).
40. Id. at 26.
41. Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
42. Id. at 139.
43. The declaration of war is characterized as a legislative act. J.Q. ADAMS, THE
AND MONROE 58-59 (1850). See F. WORMUTH, THE VIETNAM
LIVES OF MADISON
WAR: THE PRESIDENT VERSUS THE CONSTITUTION, reprinted in, STAFF OF SENATE
COMM. ON FOREIGN RELATIONS, 91st CONG., 2D SEss., DOCUMENTS RELATING TO THE
WAR POWER OF CONGRESS, THE PRESIDENT'S AUTHORITY As COMMANDER-IN-CHIEF
AND THE WAR IN INDOCHINA, 142, 162 (Comm. Print 1970) [hereinafter cited as
SENATE DOCUMENTS]. Termination of a state of war is likewise construed a legislative
act. "[T]he power which declared the necessity is the power to declare its cessation, and
what the cessation requires. The power is legislative." Commercial Trust Co. v. Miller,
262 U.S. 51, 57 (1923). But see 355 U.S. at 168-69 ("The state of war may be
terminated by treaty or legislation or Presidential proclamation, whatever the mode, its
termination is a political act.").
44. See, e.g., Talbot v. Seeman, 5 U.S. (1 Cranch) at 27; Bas v. Tingy, 4 U.S. (4
Dall.) at 38.
45. See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 99.
46. 343 U.S. at 587-89.
1973]
THE CONSTITUTIONAL LIMITATIONS
The President is limited to his constitutional role, albeit an important
one, as Commander in Chief-to prosecute war in conformity with
congressional directives. He may constitutionally go no farther.
In short, then, Congress, in fidelity to the Constitution, should never
lose ultimate control over war policy, even after it has formally declared
war and has given constitutional authorization to the President to wage
war. Congress' other powers, such as its control over appropriations,4 7
serve to equip it with a continuing check on the President's execution
of congressional war policy.
Despite the all-encompassing constitutional grant of war power to
Congress, it has nonetheless been suggested" that there is a residuum
of inherent power in the Executive. The power is said to derive in part
from the President's dual constitutional roles as Commander in Chief
and Chief Executive and is said to justify the taking of unilateral military actions by the President. Those who have occupied the Presidency
have taken widely disparate views regarding the existence of this alleged
power.49 The Supreme Court, in several early decisions," gave limited
efficacy to the concept of inherent executive power in a strictly domestic
context.5 ' Later decisions by the Court,8 2 particularly the Steel Seizure
47. U.S. CONST. art. I, § 7, cl. 1.
48. See, e.g., Pusey, Presidential War Powers, Wash. Post, April 10, 1973, § A, at
18, col. 3.
49. Compare the perspective of Theodore Roosevelt:
My view was that [the President] was a steward of the people bound actively and
affirmatively to do all he could for the people. . . . I declined to adopt the view
that what was imperatively necessary for the Nation could not be done by the
President unless he could find some specific authorization to do it . . . . It was
not only his [the President's] right but his duty to do anything that the needs of
the Nation demanded unless such action was forbidden by the Constitution or by
the laws.
T. ROOSEvELT, THEODORE ROOSEVELT; AN AUTOBIOGRAPHY 372 (1914), with the view
of William Howard Taft, who explicitly denied that there were any powers capable of
presidential exercise not circumscribed by the Constitution or by statute. W. TAFT, OUR
CHIEF MAGISTRATE AND His POWERS 140 n.126 (1925).
50. See Myers v. United States, 272 U.S. 52 (1926). Proponents of the inherent
power doctrine frequently advert to two early Supreme Court cases, In re Debs, 158
U.S. 565 (1895), and In re Neagle, 135 U.S. 1 (1890). However, Debs, in my view, has
been given a well deserved rest.
5 I. The Court in Neagle recognized that the Chief Executive need not look for
express authorization in order to take necessary steps to protect the life of a Supreme
Court Justice. The Court determined that if a certain power must exist, as a feature of
national government, its source is properly in the executive branch, as the President is
charged by the Constitution with seeing that the laws be faithfully executed, and is the
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
officer empowered to enforce them. 135 U.S. at 63. See 2 B. SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES (pt. I) 63 (1965).
Debs involved the propriety of President Cleveland's ordering of troops into Chicago to quell civil disorder and to operate the railroads which had been disrupted by a
labor stoppage. Cleveland's actions were upheld because the President may use "[tihe
entire strength of the nation . . to enforce in any part of the land the full and free
exercise of all national powers and the security of all rights entrusted by the Constitution
to its care." 158 U.S. at 582.
Thus, the recognition of inherent executive authority in Neagle and Debs is limited
only to the extent necessary to preserve the internal peace and good order of the United
States. It does not follow that these cases offer any authority for expansions of presidential prerogatives in a war-making context. See 2 B. SCHWARTZ, supra note 51, at 64.
For the view that Neagle and Debs did not involve a recognition of an inherent executive
authority, but was an exercise of the President's duty to execute the laws faithfully, see
United States v. Western Union, 272 F. 311, 314 (S.D.N.Y. 1921). But in the court of
history Debs has stood neither the test of time nor more enlightened Supreme Court
decisions.
In Myers, the Court approved the President's removal of a federal postmaster
without the statutorily required Senate assent. The power to remove was held to be,
"... an incident of the power to appoint them, and is in its nature an executive power."
272 U.S. at 161. Myers recognized a viable inherent executive power only in a domestic
and internal context. It has been argued that inherent executive authority was expanded
to an international and war-making context in United States v. Curtiss-Wright Export
Corp., 299 U.S. 304 (1936). The critical language involved was dicta that "[t]he powers
to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic
relations with other sovereignties, if they had never been mentioned in the Constitution,
would have vested in the federal government as necessary concomitants of nationality."
Id. at 318 (dictum). See Kauper, The Steel Seizure Case: Congress, The President and
the Supreme Court, 51 MICH. L. REv. 141, 145 (1952). See also 343 U.S. at 635-36
n.2 (1952) (Jackson, J., concurring). Justice Jackson characterized the Curtiss-Wright
opinion as merely intimating in dictum that the President might act in external affairs
without congressional authorization. Such dictum is too weak a reed upon which to base
the President's inherent war-making power.
52. The impact of the Myers decision has been limited by two later decisions. See
Humphrey's Ex'r v. United States, 295 U.S. 602 (1935) (limiting the power of the
President to remove a member of the Federal Trade Commission during the running of
the seven year term to which he had been appointed) and Wiener v. United States, 357
U.S. 349 (1958) (The President was denied the right to remove a member of the War
Claims Commission without cause even though Congress had been silent on the provisions for removal of the Commissioners. The Court held that the Commissioners may
be removed only for cause.). See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952), where, fearing that a nation-wide strike of steel workers would jeopardize
national security interests, President Truman issued an Executive Order authorizing the
Secretary of Commerce to seize and operate the greatest portion of the nation's steel
making facilities. The steel companies brought suit against the Secretary seeking a
declaratory judgment and injunctive relief. The Court's opinion, per Justice Black,
emphasized that the seizure was unauthorized by the Taft-Hartley Labor-Management
Act, and was a remedy explicitly rejected by Congress. There was therefore, no justification for the action taken and it had to be enjoined.
1973]
THE CONSTITUTIONAL LIMITATIONS
Case, adequately reject the concept of inherent power.5 3
The flaw in the concept of inherent executive power is that it contravenes our constitutional system of separated powers. In the Steel Seizure Case the Executive ordered the seizure of American steel mills
though no statute authorized the particular taking and the Constitution
forbade it. 4 In the more recent Pentagon Papers Case,5" the Executive
sought to enjoin publication of the Pentagon Papers, though no act of
Congress forbade their publication5 6 and despite the fact that Congress
Despite the plethora of opinions and the various perspectives which they reflect,
areas of agreement among all the Justices may be discerned. Namely, the President's
actions were subject to judicial review and constitutional limitations, and that there were
no inherent powers, even in light of the defense interests which can justify the seizure.
See Kauper, supra note 51, at 174-75. That even the Justices in dissent sought and
found a constitutional authorization for the President's action belies continued vitality
to an expansive conception of an inherent executive authority. For additional, and
critical, discussion of the case, see Corwin, The Steel Seizure Case: A Judicial Brick
Without Straw, 53 COLUM. L. REv. 53 (1953); Lea, The Steel Case: The Presidential
Seizure of PrivateIndustry, 47 Nw. U.L. REV. 289 (1952); Schwartz, Inherent Executive Power and the Steel Seizure Case, 30 CAN. BAR REV. 466 (1952).
53. 343 U.S. at 585. But see 50 U.S.C. App. § 468 (1970) (authorizing the President
through the Secretary of Defense to take possession of any steel plant refusing to make
available to steel manufacturers, having orders for steel products required by the armed
forces, such steel production as is necessary to execute such orders); Act of Sept. 8, 1950,
ch. 932 § 201, 64 Stat. 799 (authorizing the President to institute condemnation proceedings to acquire real property or the facilities thereon deemed necessary for the
national defense).
54. U.S. CONST. amend. V. In his concurring opinion in the steel seizure case, Justice
Douglas recognized that the fifth amendment prohibition that no "private property be
taken for public use, without compensation" had "an important bearing on the present
case" and viewed the seizure of the steel plant as "a taking in the constitutional sense."
343 U.S. at 631 (Douglas, J., concurring). In this regard he said:
The President has no power to raise revenues. That power is in Congress . ...
The President might seize and the Congress by subsequent action might ratify the
seizure. But until and unless Congress acted, no condemnation would be lawful.
The branch of government that has the power to pay compensation for a seizure
is the only one able to authorize a seizure or make lawful one that the President
has effected. That seems to me to be the necessary result of the condemnation
provision in the Fifth Amendment.
Id. at 631-32.
55. New York Times Co. v. United States, 403 U.S. 713 (1971). In a per curiam
opinion the Court upheld the District Court's rulings in two consolidated cases which
denied the Government's request for an injunction against the publication of a classified
study on the ground that the Government had not met its "heavy burden of showing
justification for the imposition of such a restraint." Id. at 714.
56. Id. at 720 (Douglas, J., concurring).
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THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 22
specifically refused to authorize censorship in the area.57 In each case,
the Executive asserted claims of inherent power, justifying its acts either
in the name of national emergency conditions," or in the name of national security interests. 5
There can be no doubt that the exercise of unfettered inherent executive power amounts to nothing less than presidential legislation." In
condemning the Executive seizure order in the Steel Seizure Case, Justice Black refuted the theory that the Executive possesses powers commensurate with those of the Legislature.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the
framework of our Constitution, the President's power to see that the laws
are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal about who shall make
laws which the President is to execute. The first section of the first article
says that all Legislative Powers herein granted shall be vested in a Congress of the United States .... 11
In the Pentagon Papers Case, Justice Marshall saw the serious threat
to the concept of separated powers posed by presidential legislation.
It would, however, be utterly inconsistent with the concept of separation
57. Id. at 745 (Marshall, J., concurring).
58. 343 U.S. at 585.
59. 403 U.S. at 723 (Douglas, J., concurring).
60. 343 U.S. at 630-31 (Douglas, J., concurring) ("The seizure of the steel mill was
equivalent to an act of condemnation, a strictly legislative act.").
61. Id. at 587-88. Justice Black's remarks notwithstanding, it has been submitted
that the President possesses legislative powers in the area of foreign affairs.
Although "legislative powers" in foreign affairs. . . are conferred upon Congress
and presumably denied the President, some of the President's international acts
also have domestic effect as law in the United States. The President makes
domestic law. . . when he makes a treaty or executive agreement which becomes
the law of the land, or when he decides to violate international law, or denounce
or break an international agreement, and thereby denies them effect as law of the
land.
L.
HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION
56 (1972). This analysis breaks
down, however, when one considers that presidential policies implemented through
treaties are nonetheless effected only through the Senate's approval. And while executive agreements are admittedly the unilateral acts of the President, the content of such
agreements is limited to routine matters. See text and accompanying notes 132-88
infra.
1973]
THE CONSTITUTIONAL LIMITATIONS
of power for this Court to use its power of contempt to prevent behavior
that Congress has specifically declined to prohibit. . . . The Constitution
provides that Congress shall make laws, the President execute laws, and
courts interpret law. . . . It did not provide for government by injunction
in which the courts and the Executive can "make laws" without regard
to the action of Congress."
The words of the Justices are no less applicable to presidential
abuse of war authority. Presidential commitment of troops to hostilities,
absent a declaration of war by Congress, is tantamount to presidential
legislation. 3 Such acts supplant Congress' legislative authority on matters of war and represent direct and serious encroachments on the concept of separation of powers.64
This is not to say that the President, as Commander in Chief, is
devoid of emergency war powers. Obviously, the President, as Commander in Chief, in the exercise of national self-defense may take immediate action to repel an invasion or respond to an armed attack by
means limited to the emergent need.65 President Roosevelt did so in the
surprise attack at Pearl Harbor. But all will recall that President Roosevelt immediately after this "day of infamy" submitted to Congress the
question of the state of war between us and our attacker. 6 His military
actions amounted to nothing more than a legitimate exercise of his
repelling power.
Moreover, it is one thing to repel a surprise invasion but quite another
to deploy and commit our armed forces to sustained hostilities far from
62. 403 U.S. at 742 (Marshall, J., concurring), citing 343 U.S. 579.
63. See note 43 supra.
64. Justice Douglas would apparently reach this conclusion. In the Pentagon Papers
Case, he refutes the existence of presidential war power, absent a constitutional or
congressional derivation for the exercise of such power.
The power to wage war is "the power to wage war successfully." See Hirabayashi
v. United States, 320 U.S. 81, 93. But the war power stems from the declaration
of war. The Constitution . . . gives Congress, not the President, power "[t]o
declare War." Nowhere are presidential wars authorized.
403 U.S. at 722 (Douglas, J., concurring) (dictum).
65. See notes 9-10 supra and accompanying text.
66. President Roosevelt asked Congress for a declaration of war against Japan,
retroactive to the date of the Pearl Harbor attack, to which Congress promptly acceded. Act of Dec. 8, 1941, ch. 561, 55 Stat. 795. It was only after Germany and Italy
formally declared war against the United States that Roosevelt petitioned Congress for
formal declarations of wars against those nations. Congress responded that very day.
Act of Dec. 11, 1941, ch. 564, 55 Stat. 796 (against Germany); Act of Dec. 11, 1941,
ch. 565, 55 Stat. 797 (against Italy).
680
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
our shores without a congressional declaration of war. In his war mes-
sage to Congress on April 2, 1917, President Wilson fully recognized
this when he said:
I have called the Congress into extraordinary session because there are
serious, very serious, choices of policy to be made, and made immediately, which it is neither right nor Constitutionally permissible that I
should assume the responsibility of making."7
Using the "constitutional processes," Congress responded by issuing the
68
proper declarations of war.
And even earlier in our history when the Barbary States were marauding American shipping and after Tripoli had declared war on the
United States, President Jefferson used only defensive military measures, acknowledging that he was "[u]nauthorized by the Constitution;
without the sanctions of Congress, to go beyond the line of defense" and
that "[t]he Legislature will doubtless consider whether by authorizing
measures of offense
. .
. [Congress] will place our force on equal foot-
ing with that of its adversaries.""
There are those who loosely interpret the constitutional mandate that
Congress shall declare war. They maintain that Congress may declare
war without using those exact words. The Tonkin Gulf Resolution," for
example, has been viewed by some as the "functional equivalent" of a
congressional declaration of war, 7' thereby justifying United States' in67. 1 THE PUBLIC PAPERS OF WOODROW WILSON 6 (R. Baker & W. Dodd ed.
1925-27). See Hearings Before the Subcomm. on National Security Developments of
the Comm. on Foreign Affairs, 92d Cong., 1st Sess. 142-45 (1971).
68. Act of April 6, 1917, ch. 1, 40 Stat. I (against Germany). Congress declared war
against Austria-Hungary eight months later. Act of Dec. 7, 1917, ch. 1, 40 Stat. 429.
69. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 326 (J. Richardson ed. 1908). In
a later confrontation with Spain, President Jefferson again recognized the constitutional
limitations on his offensive military powers as Commander in Chief. Addressing Congress in 1805, he said:
Considering that Congress alone is constitutionally invested with the power of
changing our position from peace to war, I have thought it my duty to await their
authority before using force in any degree which could be avoided.
Id. at 389.
70. Resolution of Aug. 10, 1964, H.R.J. Res. 1145, Pub. L. No. 88-408, § 1,78 Stat.
384. The Resolution pertinently stated that ".
.
. Congress approves and supports the
determination of the President as Commander in Chief, to take all necessary measures
to repel any armed attack against the forces of the United States and to prevent further
aggression." Id.
71. Hearings on U.S. Commitments to Foreign Powers Before the Senate Comm.
on Foreign Relations, 90th Cong., 1st Sess. 82 (1967) (statement of Undersecretary of
19731
THE CONSTITUTIONAL LIMITATIONS
tervention in the Vietnam War. My comment with respect to this is to
recall Justice Holmes' statement that words are the skin of living
thoughts.
7
Penetrating beneath the skin, however, reveals true intent,
and in the case of the Tonkin Gulf Resolution it is clear that Congress
intended only that military action be used to repel an allegedly "unpro-
voked attack" by a few gun boats. 73 It was certainly no carte blanche
4
7
to the Executive to wage large scale war unilaterally and indefinitely.
State Katzenbach). But see Wormuth, supra note 3, at 692, ". . since the Tonkin Gulf
Resolution performed none of the functions of a declaration of war, it cannot have been
the functional equivalent of a declaration of war." Id. Wormuth cites four critical
differences between a congressional declaration of war and the Gulf of Tonkin Resolution. Unlike a formal declaration of war, the Resolution did not initiate hostilities but
merely authorized the President to do so at some future time if the need arose; it did
not specify the type of hostilities to be engaged in, either general or limited war; it did
not specify a named adversary; and it did not provide that the Senate alone could
terminate hostilities through a treaty of peace. Id. at 691-92. See also Velvel, The War
in Vietnam: Unconstitutional,Justiciableand JurisdictionallyAttackable, 16 U. KAN.
L. REv. 449 (1968). Understandably, neither President Johnson nor President Nixon
ultimately relied on the Resolution for authority to conduct war in Indochina. S. REP.
No. 834, 91 st Cong., 2d Sess. 35 (1970) (termination of Middle East and Southeast Asia
Resolutions). President Nixon has, for the most part, predicated Executive action in
Indochina on a broad interpretation of his Commander in Chief powers. N.Y. Times,
Jan. 1, 197 1, at I, col. 8. See also Wormuth, supranote 3, at 624. Thus, President Nixon
offered no resistance to the repeal of the Tonkin Gulf Resolution in January, 1971. H.R.
15628. Act of Jan. 12, 1971, Pub. L. No. 91-672, § 12, 84 Stat. 384.
72. Towne v. Eisner, 245 U.S. 418, 425 (1918).
73. See N.Y.U. SCHOOL OF LAW, THE WAR IN SOUTHEAST ASIA: A LEGAL POSITION
PAPER
(1970), reprinted in
SENATE DOCUMENTS,
supra note 43, at 105-06. See
generally Velvel, supra note 71. In an effort to avoid future complications over what is
intended by the congressional war resolutions, the Senate Foreign Relations Committee
has suggested that any subsequent resolution which is intended to operate as a congressional authorization of hostilities should clearly "authorize" the President rather than
merely support him or recognize his power and should state "as explicitly as possible
under the circumstances the kind of military action that is being authorized and the
place and purpose of its use . . . and . . . a time limit on the resolution." SENATE
COMM. ON FOREIGN RELATIONS, NATIONAL COMMITTMENTS, S. REP. No. 129, 91st
Cong., 1st Sess. 33 (1969).
the real answer to the Tonkin Gulf resolution
74. Professor Bikel notes that "...
[sic] is that if it authorized anything, beyond an immediate reaction, beyond its own
factual context, it was an unconstitutionally broad delegation." Foreign Relation
Comm. Hearings, supra note 1, at 563 (testimony of Prof. Bikel). Both Professors
Wormuth and Velvel agree that the Tonkin Gulf Resolution, if construed as congressional authorization for the Vietnam War, would amount to an unlawful delegation of
legislative power to the President. Compare F. WORMUTH, The Vietnam War: The
President versus the Constitution (occasional Paper No. 1, 1970), reprinted in 2 THE
682
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
Our experience with the Tonkin Gulf Resolution dramatizes the virtue in adhering to the solemnity of a resolution entitled a "Declaration
of War." 5 Not only does it assure the deliberate consideration by Congress of the consequences and desirability of engaging in war, but it also,
and perhaps more importantly in light of recent history, sets the parameters within which presidential military action is mandated. In any
event, making a formal declaration of war a condition precedent to the
Commander's military action, assures Congress its exclusive power to
determine whether to engage this nation in hostilities, be they general
or limited in nature and scope.
In addition to relying on serious distortions of the scope of the Commander's powers and on disputed notions of inherent executive power,
recent administrations have placed great weight on the President's foreign relations powers to support its claims to broad Executive prerogatives in the war power area. 6 But, notwithstanding the President's role
as "sole organ" 7 of the nation in foreign relations, his foreign relations
power is subject to important restrictions, the most salient of which is
the Senate's right to advise and consent to his making of treaties and
his appointment of ambassadors.7 s Furthermore, Congress has the
power to pass laws to raise revenue for foreign affairs79 as well as for
military operations,'" giving it the power of the purse as well as the
power of the sword.
Despite the President's rather formidable foreign affairs role it should
be understood that the power to conduct foreign relations provides the
President with no independent source of war power. It certainly does
not enlarge Executive prerogative to such an extent as to permit independent military operations by the President. At best, the Executive's
role in the foreign affairs of this nation is a shared role with Congress:
the President leads our foreign relations but it is Congress that ultiVIETNAM WAR AND INTERNATIONAL LAW 711, 780-99 (R. Falk ed. 1969) [hereinafter
cited as The Vietnam War], with Velvel, supra note 71, at 478. But see Rostow, Great
Cases Make Bad Law: The War Powers Act, 50 TEXAS L. REv. 833, 885-92 (1972).
75. Foreign Relations Comm. Hearings, supra note 1, at 785-86 (statement of the
Hon. Arthur Goldberg).
76. See Fulbright, supra note 1, at 73.
77. 299 U.S., at 319.
78. U.S. CONST. art. II, § 3.
79. This power is incidental to Congress' general appropriations power. U.S. CONST.
art. I, § 9, cl. 7. Cf Reveley, Presidential War-Making: ConstitutionalPrerogativeor
Usurpation?, 55 VA. L. REv. 1243, 1276 (1969).
80. U.S. CONST. art. I, § 8, cl. 12. See notes 27-28 supra.
1973]
THE CONSTITUTIONAL LIMITATIONS
mately determines foreign policy."' Congress alone possesses the power
to enact legislation for the effective regulation of foreign affairs.
It is true that we have treaty obligations, some of which make an
attack upon allies an attack upon us." And it is equally true that the
President as Chief Executive has the duty to faithfully observe and
execute "the supreme law of the land" of which treaties are included. 3
But our treaties of alliance do not call automatically for the waging of
war by the United States without an appropriate declaration by Con-
gress. 4 If such were permitted by treaty, then the constitutional mandate making Congress the declarer of war would be seriously delimited.
Surely, the President could not do something by Treaty which was not
permitted in the Constitution. Since only the Senate ratifies treaties,8 5
the House's function in the war-making process would be rendered
nugatory. The Constitution is clear that "Congress" shall have the war
declaring power-that clearly means both houses of Congress.88
81. See 6 J. MADISON, WRITINGS 138,
KOENIG, THE CHIEF EXECUTIVE 211 (1964)
147-50 (G. Hunt ed. 1910). But see L.
which contains a statement by President
Truman that he could make American foreign policy. Id. at 211.
82. See, e.g., Southeast Asia Collective Defense Treaty, Sept. 8, 1954 [1955] 1 U.S.T.
81, T.I.A.S. No. 3170; North Atlantic Treaty, April 4, 1949, 63 Stat. 2244 (1949),
T.I.A.S. No. 1964. Typical is the language of the NATO Treaty which provides that
"an attack against one [Treaty member]. . . shall be considered an attack against them
all .
. . ."
Id. art. 5. President Johnson's military action in the Dominican Republic in
1965 was rationalized under the Rio Pact. Rio de Janero Pact, Sept. 2, 1947, 62 Stat.
1681 (1948), T.I.A.S. No. 1838. See A. CHAYES, T. ERLICH & A. LOWENFELD, INTERNATIONAL LEGAL PROCESS 1179-82 (1969). The SEATO treaty has been cited as
authority for American involvement in the Vietnam War. See U.S. Dep't of State, The
Legality of U.S. Participationin the Defense of Viet-Nam, 112 CONG. REC. 11,202,
11,204-05 (1966). But the SEATO treaty and the Rio Pact do not affect recourse to
our constitutional processes. See U.S. CONST. art. I, § 8, cl. 10.
83. U.S. CONST. art. VI.
84. Instead, they predicate the use of armed forces upon "constitutional processes."
See notes 89-90 infra.
85. U.S. CONST. art. 2, § 3.
86. The Constitutional debates negate the theory that the President may engage this
nation in hostilities solely on treaty delegated authority. At the Constitutional Convention the delegates considered and rejected a proposal to vest the power to declare war
in the Senate alone. J. MADISON,
NOTES OF THE DEBATES IN THE FEDERAL CONVENTION
1787, at 475 (Ohio Univ. ed. 1966). See Note, Congress, The President, and the
Power to Commit Forces to Combat, 81 HARV. L. REV. 1771 (1968) in which Madison's
notes reflect that Mr. Mason opposed giving the power of war to the Senate "because
[it was] not so constructed as to be entitled to it." Both he and Mr. Ellsworth felt that
it should be easier to get out of war than into it and hence, that while it would be
sufficient to give only the Senate power to ratify peace treaties, the entire "legislature"
OF
684
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
Moreover, if our mutual defense treaties were interpreted as selfexecuting 7 at the discretion of the President, they would be questionable
as an improper delegation of power between two branches of government.88 Not only would overly broad delegations of war power to the
Executive be violative of the doctrine of separation of powers"8 but, in
the case of self-executing treaties, the Senate would a fortiori be making
an improper delegation of authority. The Senate would be giving away
had the power of war. These notes seem to indicate a deliberate intent to include the
House of Representatives, with its popular representation, in the war-making decision.
Id. at 1799-800. See also YALE LAW SCHOOL, INDOCHINA: THE CONSTITUTIONAL
CRISES (1970); SENATE DOCUMENTS, supra note 43, at 81. Accord, The Vietnam War,
supra note 74, at 153. Wormuth comments that "if this [that the House has no input
into the decision to make war] be true, the President and the Senate might make a treaty
with Liberia, let us say, and then embark upon a war with any country in the world.
This is to substitute Liberia for the House of Representatives." Id.
87. If a treaty is self-executing, no congressional implementation is required save the
initial ratification by the Senate. Conversely, if a treaty is not self-executing, the President is obliged to seek prompt legislative implementation before exercising authority
under it. See L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 156-61 (1972).
88. A treaty cannot be used to delegate Congress' exclusive war making powers to
the President and thereby alter the constitutional distribution of powers.
[N]o agreement with a foreign nation can confer power on the Congress, or any
other branch of Government, which is free from the restraints of the Constitution. .
.
. [TJhe prohibitions of the Constitution were designed to apply to all
branches of the National Government and they cannot be nullified by the Executive [as per Executive agreement] or by the Executive and the Senate combined
[as per treaty].
Reid v. Covert, 354 U.S. 1, 16-17 (1956). See also Geofroy v. Riggs, 133 U.S. 258,
267 (1889) ("It would not be contended that it [the treaty power] extends so far as to
authorize what the Constitution forbids, or a change in the character of the government. ..
").
89. See also Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (Section 9(c) of the
National Recovery Act of 1933 held to be an overly broad delegation of legislative
power to the President). Though Panama Refining involved a domestic statute passed
under the general legislative power of Congress, the proscription against the delegation
of legislative powers which emerged from this case was applied in subsequent cases
which involved acts passed under the war power. See, e.g., Woods v. Miller Co., 333
U.S. 138 (1948) (rent controls); Yakus v. United States, 321 U.S. 414 (1944) (price
controls); Hirabayashi v. United States, 320 U.S. 81 (1943) (wartime curfew). But see
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Though dictum in
the Curtiss-Wright case advanced the proposition that the prohibition against the delegation of legislative authority did not apply in the foreign affairs area, subsequent
decisions by the Court seriously delimited the exception, if not refuting it entirely. See
Wormuth, supra note 3, at 692-97. Compare 299 U.S. at 315, 324, with Zemel v. Rusk,
381, U.S. 1, 17 (1965).
19731
THE CONSTITUTIONAL LIMITATIONS
the whole of the war power when in fact it possesses only half. Our
mutual defense treaties, however, are not self-executing. Instead, they
specifically provide that we shall intervene by force only subject to our
constitutional processes." This plainly means subject to congressional
approval."'
Yet, despite the unambiguous constitutional language concerning the
war power, our national experience, not only in Vietnam but in the
Dominican Republic" and elsewhere, reflects repeated presidential ero-
sions on the war power domain of Congress. Much of the testimony
before Congress, not only in recent hearings93 but dating back to Undersecretary of State Nicholas deB. Katzenbach's presentation to the
Senate Foreign Relations Committee several years ago,94 has dealt with
practice and tradition through many years of our national existence
which allegedly support the President's authority to deploy and commit
our armed forces to hostilities in support of our nation's foreign policy. 5
90. See, e.g., Southeast Asia Collective Defense Treaty, Sept. 8, 1954, art. 1 [1955]
I U.S.T. 81, T.I.A.S. No. 3170; North Atlantic Treaty, April 4, 1949, art. 11, 63 Stat.
2241, 2246 [1949], T.I.A.S. No. 1964.
91. Senators Cooper, Stennis, and former Senator Watkins insisted during the course
of the 1954 Senate debates on the Korean Defense Treaty "that the proper interpretation of the term 'constitutonal processes' as used in the treaty required the authorization
of the Congress." SENATE COMM. ON FOREIGN RELATIONS, WAR POWERS, S. REP. No.
606, 92d Cong., 2d Sess. 31 (1972). Professor Bikel construes the Constitution as
requiring that "our constitutional processes" be adhered to irrespective of whether a
treaty states as much in explicit terms. ForeignRelations Comm. Hearings,supra note
1, at 571.
92. In April 1965, President Johnson sent United States Marines into the Dominican
Republic without congressional authorization, justifying his decision as a necessary
incident to his power to protect the safety of American citizens. See N.Y. Times, April
29, 1965, at 1, col. 8; id. April 30, 1965, at 1, col. 8. Shortly thereafter, President
Johnson abandoned this justification choosing instead to rely on the principles enunciated in the charter of the Organization of American States. Id. May 31, 1965, at 10,
col. I.
93. See, e.g., Foreign Relations Comm. Hearings,supra note 1, at 17 (testimony of
Prof. Henry Steele Commager).
94. See note 71 supra.
95. The State Department has on occasion published lists which compile instances
in which past Presidents have engaged in military actions without specific congressional
authorization. See, e.g., U.S. Dep't of State, Research Project No. 806A (August 1967);
J. ROGERS, WORLD POLICING AND THE CONSTITUTION (1945). See also Senator Goldwater's list of 153 "military actions" taken by the United States abroad without a
declaration of war, published in the Congressional Record. 117 CONG. REc. 55640-46
(daily ed. April 16, 1971), republished in Foreign Relations Comm. Hearings, supra
note I, at 359-76. These lists or similar lists have been used to justify President
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
The historical evidence upon analysis, however, has proved too weak a
reed upon which to rely in sustaining unfettered broad presidential
powers to make war. 8
When testifying before the Senate Foreign Relations Committee in
1971, Professor Henry Steele Commager repudiated the proposition
that Executive assumption of war power, at least to the degree exercised
in recent years, is supported by past presidential precedents. Though
recognizing that "in the course of time, especially in the 19th and 20th
Century, the Presidents have repeatedly . . . used the military power
to intervene outside the United States," he distinguishes "these interventions" on the basis of their "limited character" and flatly denies that
they provide precedent to the presidential undertakings of recent years.
Noting that "in all previous interventions, some ninety-five percent
lasted less than two days," Professor Commager concluded:
It is only in the last 20 years or so that Presidents have thrown caution
and even constitutional scruples to the wind, as it were, and ventured, on
their own authority, into military operations that were in fact acts of war,
that were on a large scale. . . that were in distant parts of the globe and
that constituted "commitments" whose vindication threatened the integrity of our political and constitutional system.
More importantly, however, under settled constitutonal principles,
past practices cannot make unconstitutional action constitutional) At
best, what can be said of past practice is that it may be a guide to
interpreting an ambiguous constitutional provision or that prior congressional acquiescence has permitted a course of conduct to flourish
without challenge. But it cannot justify a departure from a plain constitutional mandate.
Johnson's actions in the Vietnam War, on the basis of historical precedent. See Meeker,
The Legality of United States Participationin the Defense of Vietnam, 54 DEP'T STATE
BULL. 474 (1966). These historical precedents, however, do not sustain broad
presidential war-making power.
96. See text accompanying notes 97-98 infra. See also Wormuth, at 652-64.
97. Foreign Relations Comm. Hearings, supra note 1, at 3.
98. Id. Professor Wormuth, after a careful analysis of the "supposed precedents,"
has likewise rejected the claim that the more recent presidential actions in Korea and
Indochina are supported by past presidential uses of the Commander in Chief powers
Wormuth, supra note 3, at 652-64.
99. Foreign Relation Comm. Hearings,supra note 1, at 8.
100. See 343 U.S. at 588-89.
1973]
B.
THE CONSTITUTIONAL LIMITATIONS
The War Powers Act
In an effort to resolve the "large and deeply troubling questions" '
in this constitutional confrontation, and using the Vietnam War as its
focal point, Congress has produced a number of recent amendments
which, in varying degrees, limited United States military involvement
in Indochina. The Cooper-Church Amendments" 2 and the Mansfield
Amendment, 03 as well as other unsuccessful amendments 04 signify a
concerned and persistent effort by Congress to use its "power of the
purse"'0 5 to excise unconstitutionally held war powers from the Executive and return the war policy making function to Congress. The most
recent and perhaps "one of the most important pieces of legislation in
the national security field" ' 6 to come before the Senate in this century
is the proposed War Powers Act 1 7 which would substantially circumscribe presidential authority to commit the nation to sustained hostili-
ties without the consent of Congress. Approved overwhelmingly by the
Senate as Senate bill 2956 on April 13, 1972,111 the War Powers Act was
reintroduced in the Senate by its original sponsor, Senator Javits, on
101. Mora v. McNamara, 387 F.2d 862 (D.C. Cir. 1967), cert. denied 389 U.S. 934,
935 (1967) (Stewart, J., dissenting).
102. See, e.g., Dep't of Defense Appropriation Act of 1970, Pub. L. No. 91171, § 643, 83 Stat. 469 (Cooper-Church Amendment); Special Foreign Assistance Act
of 1971, Pub. L. No. 91-652 § 7, 84 Stat. 1942 (Cooper-Church Amendment).
103. Pub. L. No. 92-156 § 601(a), 85 Stat. 430.
104. E.g., the unsuccessful Hatfield-McGovern amendment to the Military Procurement Act of 1971 purported to predicate use of funds under the Act upon a formal
congressional declaration of war. Amend. No. 605 to H.R. 17123, 91st Cong., 2d Sess.,
116 CONG. REC. 13,547 (1970). A subsequently proposed but unsuccessful amendment
to the same act by the same sponsors would have limited the use of funds for the sole
purpose of terminating military operations in Indochina and withdrawing remaining
American troops by a specified date. Amend. No. 862 to H.R. 17123, 91st Cong., 2d
Sess., 116 CONG. REc. 30,080 (1970).
105. Congress' appropriations power under the Constitution gives it a formidable
check over the President in the area of the war power and foreign policy. U.S. CONST.
7. See notes 21-28 supra and
art. I, § 7, cl. 2; id. at § 8, cls. 1, 2, 12; id. at § 9, cl.
accompanying text. Secretary of State Rogers views Congress' "sole authority to appropriate funds" as "a vital power in the war powers and foreign relations area." Rogers,
Congress, The President and the War Powers, 59 CALIF. L. REV. 1194, 1195 (1971).
106. 119 CONG. REC. S.873 (daily ed. Jan. 18, 1973) (remarks of Senator Javits,
March 29, 1972).
107. S.440, 93d Cong., 1st Sess. (1973) [hereinafter cited as War Powers Act].
108. S.2956 was passed in the Senate by a vote of 68 to 16. 118 CONG. REC. S.6101
(daily ed. April 13, 1973).
688
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
January 18, 19731°9 and approved by the Senate Foreign Relations Committee on May 17, 1973.110
Though the original bill met resistance in the House leading to its
ultimate demise in the 92d Congress, the newly introduced War Powers
Act seems assured of a minimum of debate"' and, once again, overwhelming approval in the Senate. Moreover, the legislative history of
the original, and much weaker House bill"' which would have merely
109. 119 CONG. REc. S. 870 (daily ed. Jan. 18, 1973).
110. Wash. Post, May 18, 1973, § A, at 22, col. 1.
11l. Debate of the issues raised in the war power controversy has been exhaustive.
See generally ForeignRelations Comm. Hearings,supra note 1, Hearingson Congress,
the President, and the War Power Before the Subcomm. on National Security Policy
and Scientific Developments of the House Comm. on Foreign Affairs, 91st Cong., 2d
Sess. (1970); Hearings on War Powers Legislation Before the Subcomm. on National
Security Policy and Scientific Developments of the House Comm. on Foreign Affairs,
92d Cong., 1st Sess. (1971). See also SENATE COMM. ON FOREIGN RELATIONS, WAR
POWERS, S. REP. No. 2956, 92d Cong., 2d Sess. (1972) (to accompany S. 2956, 92d
Cong., 2d Sess. (1972)); SENATE DOCUMENTS, supra note 43.
112. H.R.J. Res. 1355, 91st Cong., 2d Sess. (1970). With the Cambodian incursion
of May, 1970 providing the impetus, Representative Zablocki, introduced to the House
H.R.J. Res. 1355, a resolution which merely required the President to present to Congress a formal explanation whenever he committed American troops to foreign soil for
the purpose of conducting hostilities or where there was reasonable risk of armed
conflict. See H.R. REP. No. 1547, 91st Cong., 2d Sess. (1970) (to accompany H.R.J.
Res. 1355, 91st Cong., 2d Sess. (1970)). Though passed overwhelmingly in the House,
the Senate failed to act on the resolution and it died with adjournment of the 91st
Congress. H.R. REP. No. 1302, 92d Cong., 2d Sess. (1972) (to accompany S. 2956, 92d
Cong., 2d Sess. (1972)). On the opening day of the ninety-second Congress, Representative Zablocki reintroduced the resolution in slightly modified form as H.R.J. Res. 1,
92d Cong., 1st Sess. (1971). The modification consisted of deleting the phrase "whenever feasible" from the following section of H.R.J. Res. 1355.
It is the sense of Congress that, whenever feasible, the President should seek
appropriate consultation with the Congress before involving the Armed Forces
* * * in armed conflict . ...
While the deletion would seemingly indicate that the consultation requirement be mandatory, the House report makes clear that "the entire section remains a 'sense of
Congress' provision and thus advisory, rather than mandatory, on the President." H.R.
REP. No. 383, 92d Cong., 1st Sess. 2 (1971) (to accompany H.R.J. Res. 1, 92d Cong.,
1st Sess. (1971)). On August 2, 1971, H.R.J. Res. I was again passed overwhelmingly
in the House but when it was submitted to the Senate Foreign Relations Committee,
that committee chose instead to pass out the Javits war power bill, S. 2956. After a
parliamentary snarl developed which prevented a House-Senate conference to resolve
the differences between the two proposals, Representative Zablocki urged the House
Committee on Foreign Affairs to take up S. 2956 and amend it with the language of
H.R.J. Res. 1. On August 14, 1972, S. 2956 as amended passed the House by a vote of
19731
THE CONSTITUTIONAL LIMITATIONS
required that the President submit a report to Congress when committing troops to hostilities," 3 gives strong indication that the House will
be more amenable to approving a bill comparable to the tougher Senate
version."'
Upon analysis, the Senate bill represents a long overdue, but moderate reassertion by Congress of its war-making power. Relying on the
implementation clause of the Constitution," 5 the proposed Act makes
clear that it "is not intended to encroach upon the recognized powers
-16
of the President, as Commander in Chief and Chief Executive.
The Act proceeds to define the President's recognized power:
[t]o conduct hostilities authorized by the Congress, to respond to attacks
or the imminent threat of attacks upon the United States, including its
territories and possessions, to repel attacks or forestall the imminent
threat of attacks against the Armed Forces of the United States, and
under proper circumstances, to rescue endangered citizens and nationals
of the United States located in foreign countries."'
By codifying the repelling power and the emergency power of the President, the Act gives definition to the President's previously undefined
role as Commander in Chief.
In addition to specifically defining the President's emergency powers,"' the Act makes the following additional disclaimer:
344 to 13, but, like the two preceding House resolutions, was assailed by the Senate as
a weak substitute to the original Javits Bill. Weak Bill to Curb President'sPower is
Passed by House, Wash. Post, Aug. 15, 1972, § A, at 15, col. 1. S. 2956, as amended,
died with the close of the ninety-second Congress. S.2956, 92d Cong., 2d Sess., (1972).
On the opening day of the ninety-third Congress, Representative Zablocki introduced-with eleven co-sponsors-H.R.J. Res. 2, a much stronger resolution which,
unlike preceding House versions, incorporated many of the features of the Senate Bill.
See H.R.J. Res. 2, 93d Cong., 1st Sess. (1973).
113. H.R.J. Res. 1355, 91st Cong., 2d Sess. §§ 2, 3 (1970). See also H.R.J. Res. 1,
92d Cong., 1st Sess. §§ 2, 3 (1971).
114. Senator Javits, when introducing S.440 into the ninety-third Congress, was
encouraged by H.R.J. Res. 2, which "contains some significant new elements bringing
it closer to the Senate bill." 119 Cong. Rec. S 871 (daily ed. Jan. 18, 1973).
115. The War Powers Act, at § 2, expressly relies on U.S. CONST. art. I, § 8 as the
source for this exercise of congressional power.
116. See H.R.J. Res. 2, 93d Cong., 1st Sess. § 2 (1973), which contains a similar
disclaimer.
117. War Powers Act, at § 2. H.R.J. Res. 2, unlike the Senate version, does not
define the President's emergency powers in its "purpose and policy" provision. However, in section 3 of the House Resolution, some effort is made to generally scope out
such powers. H.R.J. Res. 2, 93d Cong., 1st Sess. § 3 (1973).
118. War Powers Act, at § 2, § 3.
690
THE AMERICAN UNIVERSITY LAW REVIEW
[A]uthority to introduce the Armed Forces... in hostilities
[Vol. 22
shall
not be inferred (A) from any provision of law hereafter enacted, including
any provision contained in any appropriation Act, unless such provision
specifically authorized the introduction of Armed Forces in hostilities and
specifically exempts the introduction of such Armed Forces from compliance with .
this Act, or (B) from any treaty hereafter ratified unless
such treaty is implemented by legislation specifically authorizing the introduction of Armed Forces in hostilities
and specifically exempting
the introduction of such Armed Forces from compliance with . . this
9
Act."
By including this provision, Congress has made two points extremely
clear: (1)congressional appropriations of funds used for the purpose of
waging war should not be construed as congressional authorization of
war;' 2 and (2) mutual defense treaties are not to be interpreted as selfexecuting at the discretion of the President.' 2 ' The overall effect of the
definitional sections of the Act and the disclaimer provision is to enumerate the totality of circumstances in which the President may commit
United States troops to hostilities without a congressional declaration
22
of war.
The Act further provides that the President may not use his emergency powers to sustain hostilities beyond thirty days unless Congress
has acted positively to authorize such hostilities. 2 The only pertinent
119. Id. at § 3.
120. The provision is obviously an attempt to prevent future contentions like those
made by the Administration in the Vietnam War that the war had legislative sanction
by virtue of a succession of appropriations acts through which Congress enabled the
President to sustain the war. See Meeker, The Legality of the United States Participation in the Defense of Viet-Nam, 54 DEP'T STATE BULL. 474 (1966). For an analysis of
the appropriations argument see Velvel, The Constitution and the War: Some Major
Issues, 49 J. URBAN L. 231, 239 (1971). See also note 71 supra. This provision will
minimize the effect of recent judicial support for the Administration's theory of de facto
authorization of war through appropriations. See, e.g., United States v. Mitchell, 246
F. Supp. 874, 898 (D. Conn. 1965) ("While Congress has not formally declared war with
respect to military action in Viet Nam, nor did it in Korea, it has given its wholehearted
approval to the action of the President by appropriations and other implementing
legislation.").
121. See note 87 supra.
122. Compare War Powers Act, at § 3, with H.R.J. Res. 2, 93d Cong., 1st Sess. § 2
(1973) which purports to give the President broad discretion to implement his emergency
powers "to respond to any act or situation that endangers the United States . . .when
the necessity to respond. . . in the judgment of the President constitutes. . . extraordinary and emergency circumstances ... " (emphasis added).
123. War Powers Act, at § 5.
THE CONSTITUTIONAL
1973]
LIMITATIONS
exceptions to the "30 day" limitation permitted occur when the President determines and certifies to the Congress in writing that "unavoidable military necessity" requires continued use of armed forces during the
process of "disengagement from such hostilities"'2 4 or "when Congress
is physically unable to meet as a result of armed attack upon the United
States."'2 5 And, except for these limitations, the Act provides that Congress may terminate any use of armed forces committed to hostilities
by the President within the thirty day period by act or resolution.'26
The thirty day authorization period has several positive effects. It has
the primary effect of re-vesting in Congress ultimate control over
whether this country should or should not go to war. Second, by requiring positive congressional action within thirty days after initial troop
deployment, it enables Congress to rectify improvidently taken military
actions by the President before such hostilities escalate into full war.
Third, the provision sets out a statutory check on those Presidents
whose unilateral acts might precipitate United States' involvement in
long and unnecessary wars abroad and makes it clear that congressional
inaction is neither ratification of nor acquiescence to the carrying for1 27
ward of such acts. And by further including a reporting requirement
in which the President is mandated to inform Congress of the circumstances which allegedly justify initial military engagement, Congress
should be able to make informed decisions.
Yet, despite these theoretical benefits, there must be misgivings as to
the efficacy of the concept that support for armed forces deployed by
the President will be terminated after the lapse of a given number of
days unless Congress ratifies the President's actions in committing
troops to hostilities. While the Vietnam War has taught us some painful
lessons, it is extremely difficult for Congress after the fact to counter
the traditional argument which any President is bound to advance after
precipitating us into war:
-A crisis is at hand.
-Aggression must be stopped and prevented.
-The President must be free to act.
-The minimum possible reaction has been ordered.
-We seek no wider war.
124.
125.
126.
127.
Id. at
Id. at
Id. at
Id. at
§
§
§
§
5(1).
5(2).
6.
4.
692
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
-Now, with success in our grasp, all that is needed is national unity and
support for the Commander in Chief.
-Congress will be kept fully informed.
-The leadership approves.
-Further questions now will jeopardize the safety of our troops.
Moreover, the Act's recognition of a presidential power to "forestall the imminent threat of. . .an attack"'' 8 may have inadvertently
enlarged the implied powers of the Commander. By virtue of this provision the President is given a broad discretionary grant of power by
which he may justify independent military adventures he formerly justified under disputed notions of inherent power. 20 And when this recognized power is coupled with the exceptions of the thirty day limited
authorization period, the President has the statutory power to sustain
hostilities beyond thirty days. All that a President need do is predicate
the initial deployment of troops to hostilities upon his recognized power
to forestall the alleged imminency of an attack and then, within thirty
days, report to Congress that "unavoidable military necessity" compels
the continued use of armed forces during the "process of disengagement."' 3 0
In this light, two points bear mentioning. First, American presence
in other countries has global dimensions. United States troops are located in many European and Asian nations as the result of numerous
collective security agreements.13 ' In many other nations, particularly
the developing nations of Asia and Africa and the Middle East, we
extend foreign aid and military assistance and, of course, do private
business. It is because of the pervasiveness of our presence abroad, as
history has taught us, that we are perculiarly susceptible to becoming
involved in other nations' political and military disputes. It is because
of our propensity to become involved in other peoples' wars that restraint upon unilateral presidential military action is required. Second,
the Vietnam War taught us about the inordinate difficulty in withdrawing from hostilities after a sizable commitment of American troops is
made. Recent history has shown us that "disengagement from hostilities" vis-a-vis the Vietnamization Program requires a time commitment
of not simply a few weeks or months, but years.
128.
129.
130.
131.
[1949],
Id. at § 3(1)(2).
See notes 48-64 and accompanying text supra.
War Powers Act, at § 6.
See, e.g., the NATO treaty. North Atlantic Treaty, April 4, 1949, 63 Stat. 2241
T.I.A.S. No. 1964.
1973]
THE CONSTITUTIONAL
LIMITATIONS
In discussing the war power issue, I must frankly express the convic-
tion that all recent Presidents and all recent Congresses bear an equal
measure of responsibility for the present state of affairs. But in fairness,
I should add that Congress has recently taken the lead in the attempt
to return to our basic constitutional principles. And despite my misgivings about the efficacy of the Senate bill, the trauma of the Vietnam
War is such and our past practices have so far departed from the Constitution, that legislation along the lines of the Senate bill may be helpful
in returning us to our Constitution. And in this and many other areas,
we need, above almost everything else, a reaffirmation of our constitu-
tional faith and commitment.
II.
EXECUTIVE AGREEMENTS
The proliferation of executive agreements in recent decades,1 2 underscores a second, more subtle area of constitutional confrontation
between the President and Congress. While justified by administrations,
past and present, as a proper manifestation of presidential prerogative,'
the use of the executive agreement, which requires no legislative
approval, has been the subject of Senate disapprobation. 34 And, indeed, the unrestrained use of executive agreements threatens to seriously
delimit the Senate's participation in the treaty-making process.
A.
Allocation of Power to Conduct Foreign Relations
That the treaty power is shared by the President and Senate is
verified by explicit constitutional language. "He [the Executive] shall
have power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur."135 This
132. In 1930, twenty-five treaties and ten executive agreements were concluded. In
1968, the United States entered into 206 executive agreements as compared with only
sixteen treaties. As of January 1, 1969, the United States was party to 4882 international
agreements, only 909 of which were treaties. 14 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 210 (1970).
133. See II DEPARTMENT OF STATE, FOREIGN AFFAIRS MANUAL (1969). These
guidelines confine the use of an executive agreement to the following situations: (1)
where it is pursuant to or in accordance with existing legislation or a treaty; (2) where
it is subject to congressional approval; or (3) where it is pursuant to and in accordance
with the President's constitutional power. Id. at 722.
134. See, e.g., S.J. Res. 2, 83d Cong., 1st Sess. (1953); S.J. Res. 1, 83d Cong., 1st
Sess. (1953); S.REP. No. 3067, 83d Cong., 2d Sess. (1954); Pub. L. No. 92-403 § 112b,
86 Stat. 619 (1972). For a discussion of this attempt to limit the President's use of
executive agreements, see text accompanying notes 174-88 infra.
135. U.S. CONST. art. II, § 2.
694
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
substantive provision was the result of the deliberate and thoughtful
consideration of the Founding Fathers as they endeavored to decide to
whom this important governmental function should be delegated. Fearful of a concentration of power in the Executive, the framers were
painstakingly cautious to withhold from the President the power to
unilaterally enter into international obligations on behalf of the United
States. Thus, Alexander Hamilton remarked in the Federalist: 3"
The history of human conduct does not warrant that exalted opinion of
human virtue which would make it wise . . . to commit interests of so
delicate and momentous a kind as those which concern its intercourse
with the rest of the world to the sole disposal of a magistrate, created and
circumstanced, as would be a president of the United States.' 31
However, while the convention delegates were well acquainted with
the evils attendant to one individual possessing unlimited power, they
also perceived that the proper conduct of foreign relations required a
degree of secrecy and dispatch which the Executive was best suited to
provide.'3 Not only might foreign nations be reluctant to discuss confidential matters with numerous American legislators, but also, on practical grounds a single executive would be better able to act with the
expeditiousness so often required within the realm of international affairs. These considerations prompted the entrusting of the treaty function to two coordinate branches of our government, neither of which was
empowered to act without the other's approval. 3 '
The Constitution's treaty-making clause represents a pragmatic approach which confers the treaty-making function upon officials, executive and legislative, most adequately prepared to execute it. It was recognized that delegation of this function to officials with more extensive
terms of office permits those parties to gain knowledge and expertise
invaluable in performing treaty-making duties.'40 The vesting of the
136.
THE FEDERALIST
No. 75, at 506-07 (A. Hamilton).
137. Id. at 505-06.
138. Id. No. 64, at 432 (J. Jay).
139. Id. at 434-35 (J. Jay).
140. Id. at 433. The framers were cognizant of the fact that delegation of the treatymaking power to the President would entail certain risks. Since the President was
responsible to the population at large, it was feared that an apathetic public might
enable the President to wield the treaty-making power free from any constraints. Since
at the time the Constitution was framed, Senators were elected by electors chosen by
state legislatures, it was believed that the most judicious exercise of the treaty-making
power would be conducted by the Senate. THE FEDERALIST No. 64, at 432 (J. Jay).
1973]
THE CONSTITUTIONAL LIMITATIONS
treaty-making power in the President and in the Senate where, at most
only one-third of the Senators will change seats every two years, pro-
vides further assurances that there is a continuing reservoir of available
experience. 4' The Senate, additionally, has enormous resources poten-
tially available to it, can conduct thorough investigations, and may be
convened by the President at a moments notice.4 2 Nevertheless, legislative approval is not required at each stage of the treaty-making process.
The Constitution vests the Executive with the power to individually
conduct treaty negotiations. This is the time when secrecy and dispatch,
which the Executive is most capable of providing, is usually required.
Prior to any treaty becoming effective, however, the Senate must consent to the proposed agreement.'
Unfortunately, today, as well as in the recent past, the Executive is
enlarging this constitutional scheme designed to restrict its activity in
the area of foreign affairs. Viewing its use of executive agreements in
lieu of treaties as constitutionally permissible, Presidents contend that
the form of agreement to be utilized is solely the choice of the President,
and that this choice is dictated not by the Constitution but rather by the
merits of the individual case.'44 This is not the teaching of the Constitu-45
tion. Although express language in the Constitution relates to treaties,
141. Id. at 433-34. It was for this reason that the House of Representatives was not
involved in the treaty-making procedure.
142. Id. at 435-36.
143. See note 2 supra.
144. Letter from Acting Legal Adviser, Department of State, Leonard Meeker to
Senator Fulbright, Chairman of the Senate Foreign Relations Comm., Feb. 24, 1965,
printed in 11l CONG. REc. 9064-65 (daily ed. April 30, 1965). The Executive has
resisted the formulation of demarcation lines between executive and congressional authority on two grounds: first, that there are numerous possible variations in circumstances; and second, that no resolution can alter the President's constitutional powers. Letter
from Assistant Secretary for Congressional Relations, Department of State, to Senator
Fulbright, March 10, 1969, (commenting on the National Commitments Resolution)
[see note 177 infra and accompanying text], printed in S. REP. No. 129, 91st Cong.,
Ist Sess. (1969).
145. U.S. CONST. art. I, § 10 ("No State shall enter into any Treaty, Alliance, or
Confederation"); id., art. II, § 2 ("[The Executive] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators
present concur"); id., art. III, § 2 ("The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority"); id., art. VI ("This
Constitution, and the laws which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the
Supreme Law of the Land.").
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
there is no express mention of executive agreements. The Constitution
recognizes agreements in forms other than treaties, such as alliances,
confederations, agreements, and compacts. But such words are used in
a provision circumscribing state powers, 46 and hence can hardly be
claimed by the Executive to be an affirmative grant of agreement making power. Furthermore, although the framers were cognizant of com-
pacts other than treaties, it was manifest that all international obligations of any consequence were to be subject to formal treaty-making
procedures. "7 In fact, throughout the Constitutional Convention of
1787, treaties were regarded as merely contracts between the United
States and foreign nations, to be concluded in accord with treatymaking procedures. "'
The sphere of American international activity has expanded vastly in
the 185 years since the Convention. It is argued that to require adherence to treaty-making procedures in consummating every agreement,
regardless of substance, would be impractical. In support, a number of
constitutional provisions are cited: "executive power shall be vested in
a President of the United States of America; "9 The President shall be
Commander in Chief of the Army and Navy; 50 He [the Executive] shall
receive Ambassadors and other Public Ministers;"'' or "He shall take
care that the laws be Faithfully executed."' But these provisions do not
support the exercise of presidential power to make substantive agree-
ments with foreign powers and thereby to contravene express constitu146. Id., art. I, § 10 ("No State shall enter into any Treaty, Alliance, or Confederation;"); ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . ."). Id.
147. See THE FEDERALIST No. 75, at 504 (A. Hamilton). ("Its objects [treaties] are
CONTRACTS with foreign nations, which have the force of law, but derive it from the
obligations of good faith.").
148. The drafters introduced a number of proposals at the Convention, the effect of
which would have been to vary the required approval procedures according to the nature
of the subject matter of the treaty. See J. MADISON, NOTES IN THE DEBATES OF THE
FEDERAL CONSTITUTIONAL CONVENTION OF
1787, 521 (Ohio Univ. ed. 1966), August
23, 1787, proposal to permit the President and the Senate to make treaties of alliance
for limited terms, but require concurrence of both Houses of the Legislature in all other
treaties; Sept. 7, 1787 [id. at 599]; (proposal that treaties of peace not require presidential concurrence). The treaty-making provision in the Constitution, however, prescribes
a uniform procedure.
149. U.S. CONST. art. II, § I.
150. Id. at § 2.
151. Id. at § 3.
152. Id.
THE CONSTITUTIONAL LIMITATIONS
1973]
tional requirements regarding the making of treaties. In two decisions
in which the Court could have resolved these questions, B. Altman &
Co. v. United States,'53 and Belmont v. United States,'54 it refrained
from doing so.'
Executive agreements recently concluded demonstrate the extension
of presidential powers. The Portugal agreements' 56 provide for the con-
tinued stationing of American forces in Portugal'57 and large grants of
economic assistance,' and the agreement with Bahrain relates to the
153. B. Altman & Co. v. United States, 224 U.S. 583 (1912).
154. United States v. Belmont, 301 U.S. 324 (1937).
155. In Altman, the Court failed to define the word "treaty" as it is used in the
Constitution. It was determined that the commercial agreement between the United
States and France was a treaty, as that term is used in the Circuit Court of Appeals
Act which permits, in certain cases, a direct appeal to the Supreme Court. 224 U.S.
583 at 599-601. Again, in United States v. Belmont, the Court failed to address itself
directly to the question of the scope of the treaty power. The compact involved was an
agreement which affected property rights while establishing normal diplomatic relations
with the Soviet Union. In construing the agreement, the Court held "that an international compact, as this was, is not always a treaty which requires the participation of
the Senate. There are many such compacts, of which a prQtocol, a modus vivendi, a
postal convention and agreements like that now under consideration are illustrations."
301 U.S. at 330-31.
156. Bilateral Troop Maintenance Agreement for Use of Facilities in the Azores with
Portugal of September 6, 1951, [1956] 5 U.S.T. 2263, T.I.A.S. No. 3087.
157. The agreement pertinently provides:
I have the honor to propose that the continued use by American forces of the
facilities at Lajes Base be authorized by the Government of Portugal for a period
of five years dating from February 3, 1969. The continued use of such facilities
will be regulated by mutual arrangements affirmed and described in the letter of
the Foreign Minister of Portugal dated December 29, 1962
. .
. I should like to
propose that, if agreeable to your Government this note together with your reply,
shall constitute an agreement between our two Governments.
Bilateral Troop Maintenance Agreement with Portugal of December 9, 1971, [1972] 22
U.S.T. 2106, T.I.A.S. No. 7254.
158. The agreement provides for the following economic assistance to Portugal:
I. A PL-480 program that will make available agricultural commodities valued
at up to $15 million during fiscal year 1972 and the same amount during fiscal
year 1973 . .
..
2. Financing for certain [development] projects of the Government of Portugal
3. The hydrographic vessel USNS Kellar on a no cost basis, subject to the terms
of a lease to be negotiated.
4. A grant of $1 million to fund educational development projects selected by
the Government of Portugal.
5. Five million dollars in "drawing rights" at new acquisition value of any non-
698
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
stationing of American troops within that country." 9 The Executive
expressly relies on inherent power and past practice to support the
expansive presidential role in concluding these agreements. 10 Such reli-
ance, however, is misplaced and judicial precedent lends no credence to
his position.' 6' Both the Portugal and Bahrain agreements involve mat-
ters of more substance than the commercial agreement concluded by the
Executive with France in Altman.12 Moreover, in Altman there was
military excess equipment which may be found to meet Portugese requirements
over a period of two years ....
Economic Assistance Treaty Between the United States and Portugal of December 9,
1971, [1972] T.I.A.S. No. 7303.
159. Deployment in Bahrain of the United States Middle East Force [1971], 22
U.S.T. 2184 T.I.A.S. No. 7263. The agreement sets forth regulations which relate to
United States activity within Bahrain and procedures to be followed by American
military personnel stationed within the country. Specifically the agreement contains
provisions regarding (1) access of American vessels and aircraft to Bahrain ports and
airfields, (2) passport and visa requirements, (3) civil claims and jurisdiction, (4) driving
permits, and (5) taxation.
160. Compare letter from Acting Legal Advisor Leonard C. Meeker to Senator
Fulbright, Chairman of Senate Foreign Relations Committee, February 24, 1965
printed in 111
CONG. REC. 9064-65 (daily ed. April 10, 1965)
OF STATE, FOREIGN AFFAIRS MANUAL (1969) with statements
and 11 DEPARTMENT
of Undersecretary of
State for Political Affairs Johnson at Hearings on S. Res. 214 Before The Senate
Comm. on Foreign Relations, 92d Cong., 2d Sess., (1972) at 8 [hereinafter cited as
Executive Agreements Hearings]and id. at 4 (testimony of Senator Case). Senator Case
has introduced a bill that would require these agreements to be submitted for Senate
approval, S. Res. 214, 92d Cong., 2d Sess. (1971). The basis for these proposals is that
they involve "clearly a matter of sufficient importance to necessitate its submission to
the Senate as a treaty." Id. at 3. Senator Fulbright concurred. See Foreign Relations
Comm. Hearings, supra note 1, at 21. The press has also joined in this criticism. See,
e.g., Needed: Candor and Consent, N.Y. Times, Jan. 10, 1972 at 32, col. 1; Showing
the Flag Off India, Phil. Eve. Bull., Jan. 10, 1972 at 12, col. 1; What's Our Game in
the Indian Ocean, Wash. Post, Jan. 9, 1972, § C, at 6, col. 1; In Contempt of the
Constitution, N.Y. Times, Dec. 26, 1971, § 4, at 8, col. 2; Advice and Consent, Trenton
Eve. Times, Dec. 20, 1971, at 14, col. 1; Trade Leads The Flag, Wash. Post, Dec. 18,
1971, § A, at 14, col. 1.
161. See notes 50-51 supra.
162. Senator Case's comments explore the possible consequences of the unilateral
executive actions.
In the case of Portugal, we would be furnishing large amounts of assistance to a
country which is presently involved in three separate colonial wars in Africa...
whether providing such large amounts of assistance to Portugal would not be
contrary to the stated U.S. Government position of supporting self-determination
for the peoples living in Portugal's colonies.
The Bahrain agreement is significant in that it provides for a permanent Ameri-
19731
THE CONSTITUTIONAL LIMITATIONS
congressional authorization" 3 for executive action, whereas no authorization was conferred to conclude the Portugal and Bahrain agreements.
And the appearance of legislative authorization in Altman quite possibly was the dispositive factor in the Court's holding that the agreement
was not a treaty in the constitutional sense.164 Belmont, which concerned
diplomatic recognition of a foreign government, can also be distinguished from the Portugal and Bahrain situations. As the Court noted,
formal recognition of foreign states has throughout American history
been part and parcel of the Executive's authority.
This court held that the conduct of foreign relations was committed by
the Constitution to the political departments of the government, and the
propriety of what may be done in the exercise of this political power was
not subject to judicial inquiry or decision; that who is the sovereign of a
territory is not a judicial question, but one the determination of which
by the politicaldepartments conclusively binds the courts; and that recognition by these departments is retroactive and validates all actions and
conduct of the government so recognized from the commencement of its
existence. 5
Neither the agreements in Belmont or Altman had the substantive qualities of the Portugal and Bahrain agreements, which the Executive has
unilaterally concluded. Belmont and Altman dealt with either routine
subjects or matters solely within the power of the Executive. This cannot
be said of the two agreements under discussion.
The current Administration also contends that in light of modern
times and exigencies, inherent executive power supports its action.'66
Allegedly derived from the President's powers as Commander in Chief
can base in an area where we have never before had our own installation. Despite
a State Department spokeman's statement that "all we are doing is changing
landlords," the establishment of an American base in a foreign country is a very
serious matter.
Executive Agreement Hearings,supra note 160, at 3-4 (testimony of Senator Case).
That the Bahrain agreement involves important substantive matters is noted by Senator
Fulbright who views the agreement as the initial step to more substantial American
commitments to the Bahrain government [id. at 21]. The Portuguese government's
referral to the United States-Portugal agreement as a treaty is indicative of the contents of the agreement. Id. at 25-26 (statement of Senator Case).
163. Tariff Act of July 24, 1897, ch. 11, § 3, 30 Stat. 203. See 224 U.S. at 601-02.
164. The court avoided the question by resolving that the agreement was a treaty
within the meaning of the Circuit Court of Appeals Act. See note 30 supra.
165. 301 U.S. at 328 (emphasis added). Cf Oetjin v. Central Leather Co., 246 U.S.
297 (1918).
166. See notes 49-51 and accompanying text, supra.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
and conductor of foreign policy, the power purportedly allows him to
conclude far-reaching agreements for the nation's protection.) 7 As in
the war power area, the concept of inherent executive power is without
constitutional foundation. 6 ' The Constitution is allergic to the doctrine
of inherent powers; we are a nation of laws not of men. The President
possesses only delegated powers and those which may be implied from
these express delegations." 9
The Constitution does impliedly empower the Executive to conduct
foreign policy; accordingly he is in charge of international negotiations.
Yet, prior to becoming effective, he is required to submit non-routine
agreements' 0 to the Senate for its advice and consent. The delegates to
the Constitutional Convention formulated a specific method for concluding important international agreements which cannot be disregarded. The President as Chief Executive also possesses some degree of
implied power to enter binding agreements. However, the negative implications of the treaty clause confine the exercise of this power to
matters of a routine or administrative nature, or to substantive matters
in which the President is authorized to act by the Senate, or through
7
appropriate legislation.1 '
The Nixon Administration also argues that tradition sustains the
Executive's power to conclude executive agreements concerning substantive as well as routine issues.' Congress' past practice of acquiescence to Presidential actions, as in the area of war powers, cannot justify
departure from explicit constitutional mandates.13 At most, past prac167. See notes 93-99, 144, 156-58 and accompanying text, supra.
168. See notes 78-86 supra.
169. See note 88 supra.
170. The distinction between treaty matters and matters characteristically the subject
of executive agreements has been stated as follows:
International agreements involving political issues of changes of national policy
and those involving international agreements of a permanent character, usually
take the form of treaties. But international agreements embodying adjustments
of detail, carrying out well established national policies and traditions, and those
involving agreements of a more temporary nature, usually take the form of Executive Agreements.
5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 400 (1943). See Executive Agree-
ment Hearings,supra note 160, at 74 (statement of Senator Fulbright); See also id. at
3 (statement of Senator Case).
171. See notes 145, 148 supra.
172. See notes 160-65 and accompanying text, supra.
173. The President's analysis of the historical tradition of executive agreements has
placed undue reliance upon the actions of his predecessors in office. As one critic has
stated:
1973]
THE CONSTITUTIONAL LIMITATIONS
tice demonstrates that Congress has not been fully responsive in per-
forming its constitutional responsibilities, while the Executive has been
over-assertive in extending its authority beyond the Constitution.
B.
CongressionalResponse
Congress has understandably reacted' to this recent proliferation
of executive agreements.' 75 At the insistence of Senator Fulbright, the
Senate has enacted the National Commitments Resolution, S. 85,178
which predicates United States military or economic commitments to
other nations upon congressional authorization.'77 At the behest of Sen-
ator Case, the Senate has approved legislation' requiring the Secretary
of State to inform Congress of executive agreements entered into by or
on behalf of the President.
Senator Ervin has recently introduced a similar but more comprehensive bill, S. 3475, which defines executive agreements and requires the
Secretary of State to transmit each such agreement to both houses of
The destroyer deal of 1940 was followed by a long series of important new
commitments incurred by Executive agreement or declaration. Each one of these
set a precedent for further Presidential takeover of the Senate's treaty powers,
until now, with apparent sincerity, the Executive regards the resulting imbalance
as the appropriate historically sanctioned distribution of constitutional powers.
14 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 203 (1970).
The sincerity of the President is no justification for Congress' permitting the Executive
to extend its powers beyond constitutional limits. Nor does the difficulty in overcoming
the pressure to support the Executive, created by public declarations as to policy,
absolve Congress from its constitutional responsibilities. Hearings on S. Res. 151,
Before the Sen. Comm. on Foreign Relations, 90th Cong., 1st Sess. 255 (1967).
174. See, e.g., notes 176-83 infra. Congressional reaction to the Executive's encroachment on the Senate's treaty power was predicted by the commentators as early
as 1943. See Briggs, Treaties, Executive Agreements and the PanamaJoint Resolution
of 1943, 37 POL. Sci. REv. 686 (1943). However, past Congressional attempts to correct
the constitutional imbalance created by Executive abuses of the treaty power have
proved largely ineffective. See, e.g., S.J. Res. 2, 83d Cong., 1st Sess. (1953); S.J. Res.
I, 83d Cong., 1st Sess. § 3 (1953); S. REP. No. 3067, 83d Cong., 2d Sess. (1954).
175. See note I supra.
176. S. Res. 85, 91st Cong., 1st Sess. (1969).
177. The Resolution pertinently provides:
• . . it is the sense of the Senate that a national commitment by the United States
results only from affirmative action taken by the executive and legislative
branches . . . by means of a treaty, statute, or concurrent resolution of both
Houses of Congress specifically providing for such commitment.
Id. at 17245.
178. Subsequently the bill has become law. See 1 U.S.C.A. § 1126 (Supp. 1973).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
Congress. 79 If, in the opinion of the President, the disclosure of any such
agreement will be prejudicial to national security, the bill provides for
the transfer of the agreement to the Senate Committee on Foreign
Relations and the House Committee on Foreign Affairs, under an appropriate injunction of secrecy. 8 Under this injunction, only the members of both houses of Congress will be permitted to inspect the document. 8'
The bill further provides that each executive agreement transmitted
to Congress shall come into force and be made effective after sixty days,
or later if the agreement so provides"' 2-unless, between the date the
agreement is transmitted to Congress and the end of a sixty-day period,
both houses pass a concurrent resolution which expresses disapproval
of the agreement. 8 3 In other words, Congress, in its shared-power role,
will at least have an opportunity to state that it does not approve of an
executive agreement.
Regretfully, the executive branch of the government regards congressional efforts in this area to be an attack upon presidential powers and
prerogative.'84 But Congress' efforts should be welcomed as a return to
the true constitutional faith, upon which Judge Learned Hand once
reminded us, we have risked our all.'
If the Administration continues to conclude executive agreements of
a substantive character, without recourse to Congress, Congress may
well adopt the remedy proposed by Senator Case-the blocking of financial assistance promised in so-called "executive agreements", with
such payments to remain suspended until the Executive submits the
agreements for Senate approval. 8' This is an extreme remedy but within
congressional authority. 8 1 What other recourse will Congress have to
179. S. 3475, 92d Cong., 2d Sess., § 1(a) (1972).
180. Id. at § 1 (a).
181. Id.
182. Id.
183. Id. at § 1 (b).
184. See note 144 supra.
185. United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943).
186. See Executive Agreements Hearings,supra note 160, at 2.
187. "All Bills for raising Revenue shall originate in the House of Representatives;
but the Senate may propose or concur with Amendments as on other Bills." U.S.
CONST. art. I, § 7.
See also Chermak, Financial Control Congress and the Executive Branch, 1962
MILITARY L. REV. 83 (1962); Chermak, Federal Legislation, the Role of Congress in
Shaping FiscalPolicy-The Legislative Budget, 36 GEo. L.J. 34 (1947).
1973]
THE CONSTITUTIONAL LIMITATIONS
halt the Executive's continuing disregard of the Constitution? Congress
has attempted less drastic measures without success.' 8 Out of a justifiable sense of frustration, Congress will sooner or later employ the power
of the purse in the interests of constitutional government.
I hope therefore, that in this area, as well as in the area of war powers,
the Executive will cooperate rather than resist in returning us to our
constitutional concepts of separation of powers and checks and balances.
III.
EXECUTIVE PRIVILEGE
The third area of confrontation between the Executive and Congress is over the use of executive privilege. This confrontation has widened to include the press and the entire subject of the withholding of
information by the Executive from Congress, the press, and the public.' a The Nixon administration has continuously relied upon executive
privilege as a vehicle to stop the flow of governmental information to
sources outside the executive offices. For example, in 1968 Secretary of
Defense Laird simply refused to transmit the Pentagon Papers to the
Senate Committee on Foreign Relations;'90 on three separate occasions,
the Department refused to release the Command Central Study of the
Gulf of Tonkin Incident to the Senate Foreign Relations Committee;'91
188. See notes 174-83 supra.
189. See, e.g., 403 U.S. 713 (1971).
190. Letter from Secretary of Defense Laird to Senator Fulbright, Dec. 20, 1969,
cited in Hearingson Executive Privilege:The Withholding of Informationby the Executive, Before the Senate Subcomm. on Separation of Powers of the Senate Comm. on
the Judiciary, 92d Cong., 1st Sess., at 37-38 (1971) [hereinafter cited as Ervin
Hearings].
191. See Ervin Hearings, supra note 190, at 39. The President claims that he has
invoked the privilege only four times since his election in 1968. His claim is based upon
this reasoning, i.e., the procedure he established for invoking the privilege has been
utilized only four times, thus executive privilege has been invoked only four times. This
procedure provided that once Congress or a related agency requested information from
an executive department if the head of that department felt there was a need to invoke
executive privilege he should confer with the Attorney General. Subsequently, if either
the department head or the Attorney General still felt that the privilege should be used
the matter would go to the President who would make the final decision. Thus, only
the President can invoke the privilege. Memorandum from President Nixon, for the
Heads of Executive Departments and Agencies, Establishing a Procedureto Govern in
Compliance with CongressionalDemands For Information, March 24, 1969, printed in
Ervin Hearings, supra note 190, at 37 [hereinafter cited as Nixon Memo]. Thus, the
occasions outlined in the text, during which congressional requests for information were
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
Congress' request for the Five-Year Plan for the Military Assistance
Program has also been rebuffed;9 2 moreover, executive privilege until
recently has been invoked to prevent or curtail present and former
White House staff members from testifying on the Watergate affair.'93
This pattern of resistance to congressional and judicial requests to
obtain information is particularly disturbing in light of the elusive nature the doctrine of executive privilege has taken under the Nixon ad-
ministration. The doctrine of executive privilege has become chameleon-
like. For example, the Nixon administration on March 12, 1973 issued
a policy statement'94 on executive privilege purporting to restrict the use
of executive privilege to, "those particular instances in which disclosure
would harm the public interest" and pledged that, "executive privilege
will not be used as a shield to prevent embarrassing information from
being made available."' 95 The gratifying language employed in this
statement is reminiscent of some past Administration pronouncements.'9 6 But the source from which the staff members allegedly derive
a privilege-the Chief Executive-belies the Administration's claim
denied, would not, under the President's view, qualify as examples of the use of executive
privilege. A Library of Congress study, in which form is not exalted over substance,
maintains that the privilege has been invoked nineteen times. See N.Y. Times, March
28, 1973, at 31, col. 2.
192. Ervin Hearings, supra note 190, at 44.
193. On June 17, 1972, five men were arrested inside the Democrats' Watergate
headquarters. They were subsequently convicted for acts of political espionage and
sabotage, including bugging the Watergate headquarters. As events unfolded, the conspirators were linked with the Committee to Reelect the President and top White House
aides. A select Senate committee headed by Senator Sam Ervin was convened to investigate the Watergate case as well as related activities aimed at sabotaging the 1972
Democratic campaign. The committee sought to interrogate presidential counsel John
W. Dean III concerning allegations that he may have misused FBI files to conduct an
internal Watergate investigation for the President and sought to question other White
House aides about their relationship with the conspirators. On March 12, 1973, the
President invoked the doctrine of executive privilege to prevent the committee from
questioning his aides. Wash. Post, March 19, 1973, § A, at 20, col. 1.
194. See Policy Statement on Executive Privilege, issued by President Nixon, March
12, 1973, republished in CONG. Q., March 17, 1973, at 608-09 [hereinafter cited as
Policy Statement].
195. Id. at 608.
196. See, e.g., Nixon Memo, supra note 191, at 36:
While the Executive Branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this
Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise.
19731
THE CONSTITUTIONAL LIMITATIONS
that the privilege is limited in scope.'97 In substance the new guidelines
cover any person who is employed by the White House or was employed
by the President.' 8 The privilege also purports to protect any document
or conversation emanating from the White House or concerning the
President no matter where prepared.'99
Statements of Administration spokesmen are also indicative of the
Executive's perception of the scope of executive privilege and fortify the
conclusion that the privilege is being broadened beyond past practice.
One such spokesman maintained that whether or not the privilege is
appropriately invoked in a given case is for the Executive-not Con-
gress-to decide."' 0 Although this proposition may be true where Congress so provides, or where the withheld information contains certain
substantive matters encompassed within the privilege, it is certainly not
a general constitutional truism.2"' It has also been claimed that the
substantive scope of executive privilege encompasses executive functions
performed by administrative agencies and presumably could not be altered by congressional action.2
2
Although it may be that the executive
privilege constitutionally immunizes from congressional inquiry certain
non-criminal president-staff discussions, it is questionable whether the
constitutional immunity extends to agencies.
These recent Administration policy statements and its past practice
suggest that the executive privilege has now taken on an expanded
scope. Its use heightens what some regard as a classic conflict between
197. See Policy Statement, supra note 194, at 608.
198. Id. at 609.
Under the doctrine of separation of powers, the manner in which the President
personally exercises his assigned executive powers is not subject to questioning
by another branch of government. If the President is not subject to such questioning, it is equally appropriate that members of his staff not be so questioned, for
their roles are in effect an extension of the President.
Id. at 608. Subsequently, in a statement issued by the White House on May 3, 1973,
the President limited the extent to which executive privilege would be used. The statement said that past and present presidential staff members would invoke executive
privilege "only in connection with conversations with the President, conversations
among themselves (involving communications with the President) and as to Presidential
papers." See Executive Privilege Guidelines, republished in CONG. Q., May 19, 1973,
at 1120 [hereinafter cited as Executive Privilege Guidelines].
199. Policy Statement, supra note 194, at 609.
200. Rogers, ConstitutionalLaw: The Papers of the Executive Branch, 44 A.B.A.J.
941, 1012 (1958).
201. See note 209 and accompanying text, infra.
202. See Rogers, supra note 200, at 1013.
706
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
freedom and responsibility, between order and liberty, between the right
of the public and their representatives to know-in the name and spirit
of democracy-and the Executive's need to withhold-in the name of
security. But freedom and viable government are indivisible concepts.
They can be reconciled-they must be reconciled-if our form of government is to survive as it has done for almost two hundred years.
A.
Scope of the Privilege
The Administration justifies its use of an expansive executive privilege
on the following precedents: first, the practices of the executive branch
in the formative years of the Republic 03 and second, the language
employed in defining legislative and executive powers. 24 An evaluation
of these purported bases of support, however, suggests that the Administration's justifications are not well founded.
1. the historical bases
On the theory that longevity confers legitimacy, proponents of the
Administration's view have sought sanction in events dating from the
inception of the nation.0 5 Yet, the incidents marshalled in support of it
are ambiguous at best.
An Administration spokesman took comfort in the fact that a provision expressly authorizing congressional access to department records
was absent from the Act establishing the Department of Foreign Affairs."' 0 He reasoned that since such a provision was mentioned in the
Act establishing the original department under the Continental Con203. See Ervin Hearings,supra note 190, at 428. For a thorough analysis of alleged
historical precedent in support of executive privilege, see Berger, Executive Privilege v.
Congressional Inquiry (pt. 1), 12 U.C.L.A. L. REV. 1044 (1965).
204. Rogers, supra note 200, at 1010.
205. Id. at 994, wherein it is claimed that the practices of the Executive Branch in
the formative years of the Republic gave the doctrine aded weight since " . . . both
the Executive and Legislative Branches were comprised of many men who had served
in the Continental Congress, who had participated in the Constitutional Convention and
who successfully assisted in achieving the ratification of the Constitution."
206. The Act passed by the First Congress creating the Department of Foreign
Affairs provided that the Secretary ".
.
. shall forthwith after his appointment, be
entitled to have custody and charge of all records, books, and papers in the office of
Secretary for the Department of Foreign Affairs, heretofore established by the United
States in Congress assembled." Act of July 27, 1789, ch. 4 § 1, 1 Stat. 28, Act of Sept.
15, 1789, ch. 14, 1 Stat. 68 as amended 22 U.S.C. §§ 2651-84 (1970) ("Organization
of Department of State" probably refers directly to § 2657 which is the equivalent
custodial section).
1973]
THE CONSTITUTIONAL LIMITATIONS
gress, 0 7 the members of the First Congress'who revised the Act must
have intended to terminate the former practice.'"' However, the congressional debates leading to the passage of the final Act are silent on this
point." 9 But since the same Congress enacted a statute requiring the
Secretary of the Treasury to furnish information to Congress on request,2"' it seems unwarranted, on a silent record, to infer a radically
different intent with respect to the Department of Foreign Affairs.
President Washington's response to what was apparently the first
congressional request for information from the executive branch has
frequently been miscited in support of executive privilege 1 In that
case, members of the House passed a resolution requesting the Secretary of War to furnish documents relating to the unsuccessful St. Clair
expedition. 212 Concerned with the precedent he was about to set, the
President convened his Cabinet to discuss the matter. The conclusions
ultimately reached were:
1.that the house was an inquest, & therefore might institute inquiries.
2. that they might call for papers generally. 3. that the Executive ought
to communicate such papers as the public good would permit, & ought
to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion. 4. that neither the commee nor
House had a right to call on the head of a deptmt, who & whose papers
207. The original statute creating the Department of Foreign Affairs in 1782 provided that "any member of Congress shall have access" to the records of the Department. Act of July 27, 1789, 1 Stat. 28. See The Power of the President to Withhold
Informationfrom Congress, as printed in HearingsBefore the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 85th Cong., 2d Sess. (1958)
(memorandum of Attorney General Rogers) [hereinafter cited as Att'y Gen. Memo.].
208. Att'y Gen. Memo., supra note 207, 14l.
209. Wolkinson, Demands of Congressional Committees for Executive Papers (pt.
3), 10 FED. B.J. 319, 329-30 (1949).
210. Act of September 2, 1789, 31 U.S.C. § 1002 (1970) provides that the Secretary
of the Treasury " . . . make report[s] and give information to either branch of the
Legislature in person or in writing, as may be required, respecting all matters referred
to him by the Senate or House of Representatives, of which shall appertain to his
office." This Act has been interpreted by one Attorney General of the United States as
being applicable to all Executive Departments "by legal implication." 6 Op. ATr'Y GEN.
326, 333 (1856).
211. See Ervin Hearings, supra note 190, at 429-30. Rogers, supra note 200, at
943-44.
212. 3 ANNALS OF CONG. 493 (1792) [1849 ed.]. Nine hundred members of the
expedition died during a surprise Indian attack on Nov. 3, 1791. Wiggins, Government
Operations and the Public's Right to Know, 19 FED. B.J. 62, 76 (1959).
708
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
were under the Presidt, alone, but that the commee, shd instruct their
chairman to move the house to address the President. . ..
[sic].2
Despite the reservation of a "discretion" to withhold information in
some instances, all of the St. Clair documents were turned over to the
committee.21 4 As one Washington biographer noted, "not even the ugli-
est line on the flight of the beaten troops was eliminated."
'
21
hardly suggestive of an expansive view of executive privilege.
This is
Nor does Washington's refusal to supply the House with information
surrounding the negotiation of the Jay Treaty support an expansive
view. For that refusal was predicated on the fact that the Constitution
vested the treaty-making power exclusively in the President and the
Senate, and, consequently, "the inspection of the papers asked for can
[not] be relative to any purpose under the cognizance of the House...
except that of an impeachment; which the resolution has not expressed. ' 217 The fact that Washington supplied the Senate with information affecting the negotiations 2 8 vitiates the impact of this incident as
precedent for the doctrine of executive privilege.
Those who rely on historical events for support similarly misconceive
the import of incidents that occurred during the Adams, Jefferson, and
Jackson administrations. John Adams complied with a House resolution seeking the instructions to officials involved in unsuccessful nego-
tiations with France, omitting only the identities of the persons in-
volved. 2" Thomas Jefferson also complied with a House resolution re213. I WRITINGS OF THOMAS JEFFERSON 189-90 (Ford ed. 1892). This is Jefferson's
unofficial version of what transpired at the Cabinet meeting. There is no record which
discloses that President Washington ever communicated an absolute discretion in the
Executive as the official policy of his administration. Berger, supra note 203, at 1080.
214. 1 WRITINGS OF THOMAS JEFFERSON 189-90 (Ford ed. 1892). Secretary Rogers
concedes as much. See, Ervin Hearings,supranote 190, at 430; Rogers, supra note 200,
at 944.
215. 6 D. FREEMAN, BIOGRAPHY OF WASHINGTON 339 (1948-57).
216. In 1796, President Washington refused a request by the House of Representatives that he furnish it with all documents and instructions involved in the negotiations
of the Jay Treaty with England. The House felt it had a right to such information since
it was required to appropriate funds in order for the treaty to be implemented. W.
BINKLEY, PRESIDENT AND CONGRESS 44 (1947).
217. 5 ANNALS OF CONG. 760 (1796) [1849 ed.]. Apparently, the President felt that
to permit the House to participate in the making of treaties would set an undesirable
precedent. Wolkinson, supra note 209, at 109.
218. 5 ANNALS OF CONG. 761 (1796) [1849 ed.].
219. 8 ANNALS OF CONG. 1370 (1798) [1851 ed.]. These negotiations subsequently
became known as the "XYZ Affair."
19731
THE CONSTITUTIONAL
LIMITATIONS
questing information relating to the Burr conspiracy'221 omitting only
those documents whose truth could not be substantiated and the names
of those who gave information in confidence.2 2 1 In neither instance was
information cavalierly withheld. President Adams at least technically
complied with the resolution in full, and the resolution directed to Jefferson expressly exempted disclosure of information which might ad222
versely affect the public interest.
The Administration's claim of an uncontrolled discretion to withhold
information from Congress lies on this tenuous foundation. Yet, while
Congress may not have approved certain actions taken by the Executive,
neither has it ever forced a showdown. No Congress has ever attempted
23
to challenge the executive privilege doctrine in court.
2.
the constitutional basis
The Administration also claims that the language employed in the
Constitution and the doctrine of separation of powers as judicially construed justify its actions in withholding information from Congress. The
former is relied upon to support the view that the executive branch is
constitutionally "more equal" than the legislative branch; the latter is
invoked to justify the use of an expansive privilege. As with historical
precedent, however, the arguments marshalled by the Administration in
support of its claims are not persuasive.
At first blush, the language of the Constitution lends superficial support to the Administration's position. Article II, section 1 is perceived
as a general grant of plenary power to the President, with the powers
subsequently enumerated merely emphasizing authority inhering in the
basic grant. 2 4 Article I, section 1 expressly limits the powers of the
legislature to those enumerated.2 25 The contrasting language employed
220. Aaron Burr, previously Jefferson's Vice President, was on trial for planning to
precipitate a war with Spain. Part of his alleged plan was to organize the Western states,
which were dissatisfied with the federal government, to participate in the war and
withdraw from the Union. F.T. HILL, DECIsIvE BATTLES OF THE LAW 33 (1907).
221. 1 MESSAGES AND PAPERS OF THE PRESIDENTS 412 (J. Richardson ed. 18891897). Jefferson, explaining that "neither safety nor justice will permit the exposing of
names," replied to Congress that the information withheld was "chiefly in the form of
letters, often containing such a mixture of rumors, conjectures and suspicions as renders
it difficult to sift out the real facts. . .
."
Id.
222. Att'y Gen. Memo, supra note 207, at 6.
223. See generally Berger, supra note 203.
224. U.S. CONST. art. II, § I.
225. U.S. CONST. art. I, § 1.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
to describe the powers of each branch-the first merely illustrative and
not confining, the second limiting-is relied upon in support of the
Administration's claim that the power to withhold information from
Congress is subsumed within an expansive executive power. However,
the tenability of this claim rests upon the assumption that the executive
power granted was intended to be expansive. This claim cannot withstand close scrutiny.
Admittedly, at one stage in the original draft of article II, section 1,
that section read "that a national Executive ought to be instituted with
power to carry into effect the national laws
. . .
and to execute such
other powers as may from time to time be delegated by national Legislature.""22 However, the substitution of the phrase "Executive Power" for
the earlier language in the original draft was not intended to increase
the powers of the executive beyond those enumerated. Rather, the final
wording was adopted to settle the controversy as to whether the executive branch should be single or plural and to give the Executive a title. 27
This interpretation of the import of the alteration of language contained
in article II, section Iis fortified by several other facts: first, that there
was a preconstitutional preference for a strong legislature and a nonmonarchial executive; 228 and second, that the methodical and piecemeal
expansion of enumerated executive powers leading to the final draft
would have been unnecessary if the Executive possessed plenary powers
inany event.229 These facts undermine the view that the Constitution
grants plenary power to the President within which is subsumed the
power to withhold information sought by Congress.
The Administration, through the President and his spokesmen, also
relies upon the doctrine of separation of powers as construed by the
courts to support its view that the executive privilege is not limited as
226. I M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 67 (rev.
ed. 1937).
227. Berger, supra note 203, at 1073.
228. Id. at 1069-73. Berger remarks that:
it is incongrous to attribute to a generation so in dread of executive tyranny an
intention to give a newly created executive a blank check at the very moment
when it was carefully enumerating the powers that were being granted, down to
the veriest trifle.
Id. at 1076.
229. The better view is that of Mr. Justice Holmes that "the duty of the President
to see that the laws be executed is a duty that does not go beyond the laws. . . ." Myers
v. United States, 272 U.S. at 177 (1928) (Holmes, J., dissenting). See 343 U.S. at
640-41 (Jackson, J., concurring).
1973]
THE CONSTITUTIONAL
LIMITATIONS
to the substance of information the Executive seeks to withhold and
concomitantly that the propriety of the Executive's invocation of the
privilege is free from congressional and judicial scrutiny. 3 The judicial
precedent marshalled in support of these claims do not sustain this
position.
Admittedly, the Court has assiduously adhered to the view that information about certain matters is protected by the privilege from either
judicial or congressional scrutiny. In United States v. Reynolds,21 the
Court sustained the Executive's claim of authority to withhold information about certain military secrets from compulsory process. But the
Court explicitly relied on the fact that a privilege against revealing
military secrets was recognized by the law of evidence; 32 it declined to
predicate the decision on the government's contention that executive
department heads may withhold any documents from judicial review if
they deem it in the public interest. The existence of an executive privilege for military secrets in no way supports a similar privilege for all
other information within the Executive's peculiar sphere of knowledge.
The contrary view, posited by Administration spokesmen, is unsupportable.
Nor can the Administration's view, that the propriety of the use of
executive privilege is a question solely for the Executive, be sustained.
Congressional inquiry is inappropriate only where such inquiry seeks
particularly sensitive military secrets or is unrelated to Congress' prescribed function.2 33 This principle in no way impairs the proposition
that Congress may make inquiry in furtherance of its constitutional
duties. Where information is needed in order for Congress to perform
these duties, the request for information is legitimate, and the propriety
of an executive refusal on privilege grounds is questionable. Contrary
to the view of one Administration spokesman, 34 this is true irrespective
of whether an executive official acts pursuant to statutory prescriptions
35
mandating action or acts at the behest of the President.
230. See note 199 supra and accompanying text.
231. 345 U.S. 1 (1953).
232. Id. at 6-7.
233. Kilbourn v. Thompson, 103 U.S. 168 (1880). (The House of Representatives had
exceeded its authority in attempting to investigate a private real estate pool in connection with its alleged dealings with a bankrupt debtor of the United States government.
The Court relied on the fact that the investigation was not traceable to any legitimate
legislative function of the House.)
234. Rogers, supra note 200, at 1010.
235. In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Court distinguished
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
It is also clear that the claims of executive privilege are not immune
from judicial inquiry. The right to obtain compulsory process against
the President is much mooted. 3 The only applicable historical evidence is that the President may be justified in refusing to obey such
process where compliance would prevent the performance of his duties.
But the right to obtain process remains. Moreover, judicial access to
documents is contingent not upon the character of the person holding
the document but the character of the document. Where sensitive military secrets are involved, United States v. Reynolds237 indicates that the
scope of judicial inquiry is to be exercised with great discretion. But
judicial review in principle cannot be precluded.238 This proposition was
23
recently confirmed in Environmental Protection Agency v. Mink
where the Court acknowledged congressional power to prescribe a test
for activating the privilege which would be limited only by the type of
24
Absent legislation authorizinformation contained in the documentY.
ing the invocation of the privilege as to factual matter in the Executive's
between the duties of a presidential aide conferred solely by executive authority and
those conferred by legislative authority.
236. See U.S. v. Burr, 25 F. Cas. 30, 33 (No. 14,692d) (C.C. D. Va. 1807) (Person
charged with crime in federal court may compel process of any person).
237. 345 U.S. 1 (1953).
238. Administration spokesmen have relied on the Reynolds case to support the
broad proposition that executive department heads may withhold any documents in
their custody from judicial review if they deem it in the public interest. See Rogers,
supra note 200, at 1012. In Reynolds, however, the Court rested its holding on the
narrow ground that a privilege against revealing military secrets was recognized by the
law of evidence, and on that ground declined to order disclosure. 345 U.S. at 6. While
conceding that the privilege may be invoked in certain circumstances without complete
disclosure to the court, the Court nevertheless left no doubt that the decision as to its
appropriateness was to be made by the judiciary and not by the executive. Id. at 8.
239. 93 S.Ct. 827 (1973). The case does not support a contrary conclusion. Although
the Court suggests that there is an area of executive discretion upon which Congress
may not encroach, it repeatedly asserted that the unqualified right of the President to
invoke executive privilege free from judicial inquiry was statutorily and not constitutionally based. The scope of Congress' authority to prescribe new procedures, perhaps even
procedures subjecting the claim of executive privilege to judicial scrutiny was depicted
as follows:
Congress could certainly have provided that the Executive Branch adopt new
procedures or it could have established its own procedures-subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U.S. 1 (1953).
Id. at 834.
240. Id. at 834, 836.
1973]
THE CONSTITUTIONAL LIMITATIONS
possession, Congress' power to require disclosure and the scope of judicial inquiry concerning the propriety of invoking the privilege is broad.
The Administration's view241 that the executive privilege itself protects
a panoply of subjects and itself bars congressional or judicial inquiry is
not well founded.
The Administration's claims that both historical precedent and the
doctrine of separation of powers as judicially construed support their
view as to an appropriate reconciliation between the right of the public
and their representatives to know and the Executive's need to withhold
information are unconvincing. The past practice on which the Administration relies cannot be invoked to frustrate that which the Constitution
mandates. Thus, we must look to the Constitution for reconciliation.
Chief Justice Hughes expressed the premise upon which the Constitution reconciles the right of the public and their representatives to know
and the Executive's need to withhold in the following words:
[I]mperative is the need to preserve inviolate the constitutional rights of
free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be
responsive to the will of the people and that changes, if desired, may be
obtained by peaceful means. Therein lies the security
of the Republic, the
2 42
very foundation of constitutional government.
This premise, an orderly framework in which the rights and needs of
the Executive, Congress, the public, and the press, can be rationalized
and reconciled, is, in my view, governed by the following guidelines.
B.
CountervailingInterests
First, in mandating government by the consent of the governed, our
constitutional system requires that the people be adequately and honestly informed about the great issues that affect their lives and welfare.24 3 The first amendment was conceived as a basic safeguard of the
241. See Policy Statement, supra note 194. See also Executive Privilege Guidelines,
supra note 198.
242. De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Cf. New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964); Whitney v. California, 274 U.S. 357, 377 (1927)
(Brandeis, J., concurring); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes,
J., dissenting).
243. See 403 U.S. at 713 (1971) (Black, J., concurring); Red Lion Broadcasting Co.
v. F.C.C., 395 U.S. 367, 390 (1969); Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964);
376 U.S. at 269 (1964). For an explication of the doctrinal basis of the public's right to
know, see Comment, The Broadcasting Media and The First Amendment; A
Redefinition, 22 AM. U.L. REV. 180, 182-86 (1972).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
public's right to know, as well as the press' right to publish. Without
the first amendment, our Constitution would not have been adopted.
Second, there is no justification for denying to Congress the information necessary to the performance of its duties. If the people have a right
to know, their representatives have a need to know. Congress performs
a critical function in its role as a national forum wherein the major
issues of the day are discussed and debated. The more vigorous the
debate, the better informed and educated is the public. Congress oversees the fiscal administration of the government, even in areas where it
has delegated its policy making authority to the Executive.2 44 Nothing
can contribute more to the weakening of Congress and undue concentration of power in the Executive than the latter's recalcitrance in sharing
information with Congress. With adequate information, Congress under
our constitutional framework can be the full partner in the evolution of
policy and the resolution of our foreign and domestic problems envisioned by the Founding Fathers. Without it, Congress cannot appropriately perform functions entrusted to it under the Constitution.
Third, as the history of civilization, ancient and modern, teaches, any
government, including our own, has more to fear from a captive press
than from a zealous press, more to fear from the journalistic apologist
for an Administration-any Administration-than the journalistic antagonist of an Administration.2 4 5 By commanding freedom for the press,
our Constitution seeks to inspire responsibility by the press. As an
essential safeguard, the framers of our Constitution vested in the courts
the duty of assuring the constitutional freedom of the press as well as
the orderly exercise of the government.
All of us surely recall Thomas Jefferson's familiar dictum: "The basis
of our government being the opinion of the people, the very first object
244. See Schwartz, Executive Privilege and CongressionalInvestigatory Power, 47
L. REv. 3, 9 (1959). Congress' powers do not consist merely of enacting laws.
It was early recognized that the constitutional power to legislate necessarily imparts to
the Congress a right to obtain information necessary to the performance of this function.
CALIF.
See also note 210 supra and accompanying text. A further discussion of the other
constitutional functions of the Congress, including appropriation, fiscal management,
and the Senate's role in advising and consenting to treaties, and the necessary investigatory powers that these functions entail is found in Note, Development in the Law, The
NationalSecurity Interest and Civil Liberties, 85 HARV. L. REv. 1130, 1207 (1972). See
also Ervin Hearings,supra note 190, at 455, 462 (statement of G. Reedy).
245. 403 U.S. at 717 (Black, J., concurring). Cf. Cohen v. California, 403 U.S. 15,
24, 25 (1971); McCartney, Must the Media Be "Used", COLUM. JOURNALISM REV. 37
(Winter 1969-70).
1973]
THE CONSTITUTIONAL
LIMITATIONS
should be to keep the right; and were it left to me to decide whether we
should have a government without newspapers, or newspapers without
a government, I should not hesitate to prefer the latter. ' 2 Now Thomas
Jefferson, one of our greatest Presidents, like many public officials
ancient and modern, can be cited to the opposite effect. But this aphorism does contain a germ of truth. Fortunately in our history, with very
few exceptions, we have not been compelled to make his choice. And
despite the present impasse, I trust that we may not have to. We cannot
have a free press without a free government, and we cannot have a free
government without a free press.
I do not mean to suggest that the Executive does not require a modicum of secrecy in the conduct of its vital operations, that each day's
collection of confidential messages with foreign governments should be
broadcast on the six o'clock news, or that the engineering details of
advanced weapons systems must be published in the Congressional Record. After all, ".
.
. while the Constitution protects against invasions
of individual rights it is not a suicide pact. Similarly, Congress has
broad power under the Necessary and Proper Clause to enact legislation
for the regulation of foreign affairs. Latitude in this area is necessary
to ensure effectuation of this indispensable function of government." '47
Indeed, article II, vesting the executive power of the United States
in the President, necessarily implies that certain legitimate governmental activities he conducts, either directly or through his staff and the
executive department are privileged. By the same reasoning, under
article I, certain activities of Congress, whether directly or through its
staff are also privileged. Both privileges are designed to insure that
members of the respective branches can function free from unwarranted
intrusions from either of the co-equal branches.248 But where action of
one branch impinges upon individual rights, i.e., where the claim of
executive privilege impinges upon the rights of individual members of
the public to know, that branch is not immunized by the Constitution
from judicial scrutiny.241 Moreover, the scope of the privilege-whether
it be the legislative or executive-is confined to that which relates to the
246. Letter from Thomas Jefferson to E. Carrington, [Jan. 16, 1787] quoted in N.
24
(1964).
247. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).
248. Compare Gravel v. United States, 408 U.S. 606, 617 (1971) with Barr v. Matteo,
360 U.S. 564, 472-73 (1959).
249. 408 U.S. at 628 n.17.
MINNOw, EQUAL TIME: THE PRIVATE BROADCASTER AND THE PUBLIC INTEREST
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 22
legitimate functioning of either branch. It does not extend to criminal
activity."'
The time is overdue for Congress to act in this entire area with due
sensitivity for national security and for the protection of the legitimate
privilege; of the Executive as well as Congress' rights and responsibilities and the public's right to know. In any statute dealing with this
subject, we must bear in mind that "[t]he First and Fourteenth Amendment rights of free speech and free association are fundamental and
highly prized and 'need breathing space to survive.'"25 Moreover,
"[f]reedoms such as these are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle governmental
interferences." 252 Perhaps if we honor these precepts, a viable solution
can be reached in the present confrontation between the Executive and
Congress and the press.
CONCLUSION
It is my ultimate conclusion that the Constitution itself provides the
guidelines for a resolution of the existing constitutional confrontation
between the President, Congress and the press. What is imperatively
required, however, is a shared willingness to abide by the spirit as well
as the letter of the supreme law. That spirit in recent days has been
notably lacking; I can only express the hope that all concerned will
rededicate themselves to the true constitutional faith. A continuing impasse between the President, Congress and the press can only serve to
paralyze our body politic with untoward consequences at home and
abroad.
250. Id. at 627.
251. N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963).
252. Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 544 (1963)
as cited in Bates v. Little Rock, 361 U.S. 516, 523 (1960).