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The Law of the Executive Branch - Presidential Power by Fisher, Louis (29th January 2014)

Three The Powers of the President

From: The Law of the Executive Branch: Presidential Power

Dr. Louis Fisher

(p. 58) Three  The Powers of the President

Presidential power has many sources: provisions expressly stated in the Constitution, authorities reasonably implied in those provisions, statutory grants from Congress, judicial decisions, national emergencies (real and contrived), and attempts by Presidents to exercise powers that are not expressly stated or reasonably implied. This chapter begins by analyzing three concepts that go beyond powers expressly stated: “implied,” “inherent,” and “prerogative.” It is important to understand how they differ. Subsequent sections focus on specific presidential powers, such as the power to remove executive officials and to issue pardons. Presidential powers wax and wane depending on who occupies the Oval Office, initiatives urged by advisers and supporters, national and international pressures, popular support (and lack thereof), and actions taken by the legislative and judicial branches to encourage or curb executive power.

1. Enumerated and implied powers

Chapter 1 touched briefly on “inherent” powers and how they differ from constitutionally legitimate “implied” powers. They have fundamentally different meanings. On occasion, members of Congress, executive officials, federal courts, and scholars refer to the U.S. Constitution as one of “enumerated powers.” Those statements suggest that every power granted to the national government is expressly stated in the Constitution, and anything beyond powers specifically enumerated lacks legitimacy. In McCulloch v. Maryland (1819), Chief Justice John Marshall made this claim: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it...is now universally admitted.”1

All governments require more than enumerated powers, and yet some scholars conclude: “A necessary corollary (and one that leaps from the Constitution) is that Congress is limited to its enumerated powers.”2 Congress is not restricted to enumerated powers nor is the President or the judiciary. All three branches have access to a number of implied powers that can be legitimately drawn from their express powers.(p. 59)

In McCulloch, Chief Justice Marshall had to decide whether Congress possessed authority to create a national bank (the U.S. Bank). Nothing in the Constitution specifically grants Congress that power. Marshall admitted: “Among the enumerated powers, we do not find that of establishing a bank or creating a corporation.”3 He found it necessary to jettison his model of enumerated powers by reasoning: “there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.”4 He upheld the Bank’s creation on the basis of implied powers and by interpreting in broad fashion the Necessary and Proper Clause of Article I.5 Marshall counseled: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”6 Details of the U.S. Bank dispute are covered later in this section.

Marshall did not write on a clean slate. His grasp of implied powers benefited from principles developed by the Framers. They understood the need for implied powers. Madison wrote in Federalist No. 44: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”7 During the First Congress, Madison successfully defeated an effort to limit the national government to powers expressly delegated. The Articles of Confederation, which became effective in 1781, gave broad protection to the states. They retained all powers except those “expressly delegated” to the national government.8

When the members of the First Congress debated the Bill of Rights, someone proposed that the Tenth Amendment include the words “expressly delegated.” The constitutional language would read: “The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Madison objected to the word “expressly” because the functions and duties of the federal government could not be delineated with such precision. It was impossible, he said, to confine a government to the exercise of express or enumerated powers, for there “must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae.”9 Madison’s argument prevailed. The word “expressly” was deleted.

Another constitutional dispute in the First Congress concerned the President’s authority to remove executive officials. The Constitution makes no express mention of that power. From May 19 through June 24, 1789, lawmakers debated the existence of a removal power.10 Key to that discussion was the President’s express duty under Article II to “take Care that the Laws be faithfully executed.” What would happen if a department head interfered with the execution (p. 60) of law? Could the President remove that individual? As recounted in section 7 of this chapter, Madison led the debate and both houses of Congress agreed that the President possesses an implied power to remove department heads. Interestingly, lawmakers also recognized that certain officials within a department should not serve at the pleasure of the President or take direction from the President. That point is underscored throughout this chapter, especially section 6 on ministerial and discretionary powers.

The issue of implied powers resurfaced in 1791 when Congress decided to create a national bank. The Continental Congress had formed a national bank ten years earlier to deal with the crisis of the Revolutionary War,11 but delegates at the Philadelphia convention gave little attention to the authority of Congress to create a national bank. While debating a section granting Congress authority to establish post offices and post roads, the delegates discussed the legislative power “to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.”12 On September 14, 1787, Rufus King of Massachusetts expressed concern that Congress might use the power to establish a national bank, sparking new tensions between banking interests in Philadelphia and New York. The delegates decided to omit language on incorporation.13

When the House debated a national bank in 1791, Madison objected that the power of creating a national bank was not among the enumerated powers listed in Article I. He also said a national bank would interfere with the rights of the states.14 His colleagues pointed to the inconsistency of his constitutional analysis. Two years earlier he had defended the President’s implied power to remove department heads. Why support implied powers for the President but not for Congress?15 During debate on the Bill of Rights, Madison had argued persuasively that the national government required not merely enumerated powers but implied powers as well.

The bill for a national bank passed the House 39 to 20.16 The Senate had already supported the measure. President George Washington turned to his Cabinet for advice on whether the bill was constitutional. Attorney General Edmund Randolph and Secretary of State Thomas Jefferson concluded that Congress lacked authority to create a bank.17 However, Jefferson suggested that congressional judgment in favor of constitutionality could weigh against strict legal reasoning. He advised Washington that if “the pro and con hang so even as to balance his judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favour of their opinion.”18

Secretary of the Treasury Alexander Hamilton strongly defended the constitutionality of a national bank. When Chief Justice Marshall later upheld the bank in McCulloch, he depended (p. 61) not merely on Hamilton’s reasoning about implied powers but his very language. Like Hamilton, Marshall read the Necessary and Proper Clause broadly. Compare the structure and words used by Hamilton in advising Washington: “If the end be clearly comprehended within any of the specified powers, & if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority.”19 Marshall’s version: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”20

Although implied powers were recognized during the debates over the Constitution and in the early years of the national government, judicial rulings continued to describe the Constitution as one of “enumerated powers.” In 1821, the Supreme Court decided whether Congress possessed authority to hold individuals in contempt. No such authority is granted in the Constitution. A unanimous Court cautioned: “It is true, that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers.”21 Yet the Court dealt amicably with these hostile forces, admitting that in the Constitution there is not “a grant of powers which does not draw after it others, not expressed, but vital to their exercise.”22 Without the power of contempt, Congress would be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it.”23

Implied powers are regularly acknowledged by federal courts.24 Nevertheless, the doctrine of “enumerated powers” remains on prominent display. In 1995, while striking down a congressional effort to regulate guns in schoolyards, the Supreme Court announced: “We start with first principles. The Constitution creates a Federal Government of enumerated powers.”25 That is not a first principle. If it were, the Court would not have the power of judicial review to invalidate actions by Congress, the President, and the states. Judicial review is not enumerated in the Constitution. In 1997 the Court again stated: “Under our Constitution, the Federal Government is one of enumerated powers.”26 In supporting the Affordable Care Act in 2012, Chief Justice Roberts made this claim: “If no enumerated power authorizes Congress to pass a certain law, that Law may not be enacted....”27 Congressional power has never been defined or restricted in that manner. Some powers are enumerated, but the federal government is more than that. (p. 62) All three branches have numerous implied powers, provided they are reasonably drawn from enumerated powers.

2. The Vesting Clause

Scholars differ on the breadth of what is called the Vesting Clause. Article II, section 1 begins: “The executive Power shall be vested in a President of the United States of America.” Are those powers the ones specifically identified in the Constitution, augmented by implied powers, necessarily drawn from them? Or is the “executive Power” a source of power that goes beyond enumerated and implied powers? Some studies, including by Steven Calabresi and Kevin Rhodes, read the Vesting Clause to empower the President to exercise exclusive control over the executive branch, creating a “Unitary Executive” that cannot be limited by Congress, such as creating statutory limitations on the President’s power to remove executive officials.28

This doctrine encounters two problems: one historical, the other theoretical. As explained in section 7 of this chapter, the President’s removal power was restricted by Congress in 1789 when it created the office of Comptroller in the Treasury Department as an executive official who did not serve at the pleasure of the President, but exercised an independent capacity to ensure the legality of expenditures. Many members of the First Congress were delegates at the Philadelphia convention and had recent experience with and understanding of constitutional principles. A broad reading of the Vesting Clause also has a theoretical hurdle. If the President’s power under Article II is subject to no limitations by Congress (or by the judiciary), such a power could recreate part of the executive authority that William Blackstone fashioned for the British king—a system of government the Framers clearly rejected.

Research by Calabresi and Rhodes stimulated a series of articles in 1994 in the Northwestern University Law Review.29 In justifying their conclusions, Calabresi stated that the federal government “is one of limited and enumerated powers (even if some of those enumerated powers sometimes seem pretty sweeping).”30 But all three branches have access to both enumerated and implied powers.

In a 2001 study, Saikrishna Prakash and Michael Ramsey advocated a “residual” presidential power that incorporates broad executive prerogatives developed by Locke and Blackstone from British practice.31 Claims of residual power open the door to Blackstone’s prerogative that gave the executive exclusive control over external affairs, which the Framers explicitly rejected. The President possesses certain implied powers needed to carry out the enumerated powers of (p. 63) Article II. In a separate study, Ramsey rejected the notion that the President possesses “inherent powers in foreign affairs.”32 Curtis Bradley and Martin Flaherty observed that “there is not a single reference to the Vesting Clause Thesis in all of the records of the Federal Convention.” The repeated opposition of most delegates to creating a President that “resembled the British monarch further weighs against the Thesis.”33 Other studies conclude that presidential power must be based not from broad theories of the Vesting Clause but from powers expressly stated and those that may be reasonably drawn as implied powers.34

3. The “herein-granted” debate

Propenents of broad presidential power often distinguish between the powers granted by Article I for Congress and Article II for the President. Article I begins: “All legislative Powers herein granted shall be vested in a Congress of the United States....” Was the intent to limit Congress to those powers specifically enumerated? Article II appears to provide greater breadth: “The executive Power shall be vested in a President of the United States of America.” What authorities might be included in the “executive power”? The executive power originally granted to the British king? Such a theory runs counter to the text of the Constitution, America’s rejection of royal power, and its commitment to republican principles, separation of powers, and checks and balances.

Is it possible to crisply delineate between “legislative powers herein granted” and presidential powers not subject to that limitation? That effort might have some appeal if the Constitution limited the national government—and its three branches—to enumerated powers. But it does not. The Framers clearly rejected that form of government. Notwithstanding the different vesting clauses, Congress, the President, and the judiciary all have access to an array of implied powers.

During oral argument in the Steel Seizure Case of 1952, Holmes Baldridge of the Justice Department advised District Judge David Pine about the difference between Articles I and II, with “herein granted” supposedly providing a narrower grant of power than the Vesting Clause for the President. To Baldridge, it was “obvious that the legislative powers are limited to those specifically enumerated, whereas all executive power, whether or not enumerated, is vested in the Chief Executive. Hence, the executive power is broader.” Building on that theory, Baldridge concluded that the President in a time of national emergency possesses whatever power is needed to meet the emergency.35 Judge Pine was unimpressed with that argument and rejected the claim of inherent and emergency presidential powers. The Supreme Court affirmed his opinion (Chapter 8, section 6).(p. 64)

A. Pacificus-Helvidius

One of the first attempts to limit the powers of Congress under Article I and to expand presidential power under Article II was by Alexander Hamilton, writing under the name “Pacificus” in 1793. He came to the defense of President Washington for issuing a proclamation of neutrality in the war between England and France. Critics protested that Washington had overstepped his constitutional authority. Hamilton disagreed, pointing to the broad language of Article II: “the executive power shall be vested in a President of the United States of America.”36 Although Article II proceeded to identify specific powers for the President, including the power to nominate and grant pardons, he said it “would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations.”37

To Hamilton, Article II vests in the President the full “executive power” subject to certain express limits, such as the power of Congress to override a veto or the requirement that the Senate agree to treaties by a two-thirds vote. He compared the general grant of executive power to what might appear to be narrower authority for Congress: “In the article which gives the legislative powers of the government, the expressions are: ‘All legislative powers herein granted shall be vested in a Congress of the United States.’”38 Hamilton concluded that this language was adopted to limit Congress to the powers specifically enumerated in Article I.

Madison, using the pseudonym “Helvidius,” published a number of articles to rebut Hamilton. From what source, he asked, did Hamilton borrow in creating this broad scope of presidential power in foreign affairs? To Madison, there “is but one answer to this question. The power of making treaties and the power of declaring war, are royal prerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators.”39 Madison charged that Hamilton was not analyzing the language of Articles I and II. He was going outside the Constitution to incorporate British doctrines of unchecked executive power.

Madison had some fun by quoting from a published work that defended the draft Constitution. The author of that work said this about the treaty power: “Though several writers on the subject of government placed that power [of making treaties] in the class of executive authorities, yet this is evidently an arbitrary disposition. For if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them.”40 The language comes from Federalist No. 75, written by Hamilton. Madison predicted that if Hamilton’s broad theory of “executive power” were ever adopted, “no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”41 That point is further developed in sections 4 and 5 of this chapter, dealing with inherent powers and the prerogative.(p. 65)

B. Roosevelt-Taft models

Some of the flavor of the Pacificus-Helvidius debate reappears in the works of Theodore Roosevelt and William Howard Taft. Roosevelt said he regarded himself as “a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin.”42 He disagreed with 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.”43 Roosevelt advanced a highly simplistic and shallow understanding of the Constitution. No President before him felt confined to powers particularly authorized. It was well understood that the Constitution grants the President a combination of express and implied powers, the latter including the power to remove department officials and to withhold from Congress certain documents.44

Roosevelt believed “it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or the laws.” Under that interpretation, he said, “I did and caused to be done many things not previously done by the President and the heads of the departments.”45 In making that statement, Roosevelt seemed to go outside express and implied powers and claim a broader authority, perhaps some type of prerogative or inherent power. But he offered no examples of exercising executive power in such a bold and ambitious manner. Roosevelt’s rhetoric regularly exceeded his performance in office.46

Roosevelt created two presidential models: one covering Andrew Jackson and Abraham Lincoln, the other for James Buchanan, who took the “narrowly legalistic view that the President is the servant of Congress rather than of the people, and can do nothing, no matter how necessary it be to act, unless the Constitution explicitly commands the action.”47 No President read the Constitution that narrowly, not even Buchanan.48 Nevertheless, Roosevelt charged that his successor to the White House, William Howard Taft, “took this, the Buchanan, view of the President’s powers and duties.”49 There is nothing to Roosevelt’s accusation other than personal spite and animosity. One of Roosevelt’s biographers made this observation about his views about Taft in later years: “The violence of Roosevelt’s denunciations of the man he had loved and admired approached hysteria.”50 The two models created by Roosevelt marked a self-serving effort to associate himself with Jackson and Lincoln while assigning Taft to the ranks of Buchanan. With a light touch of humor, Taft remarked that the “identification of Mr. Roosevelt with Mr. Lincoln might have otherwise escaped notice, because there are many (p. 66) differences between the two, presumably superficial, which would give the impartial student of history a different impression.”51

In the Steel Seizure Case of 1952, Holmes Baldridge of the Justice Department described for Judge Pine the “stewardship theory of the Presidency” and how Theodore Roosevelt believed that the President “can do what is imperatively necessary for the good of the nation without specific authorization.”52 Judge Pine repudiated the stewardship model, regarding it as “a theory with which our government of laws and not of men is constantly at war.”53 The Supreme Court also found no merit to the stewardship model (Chapter 8, section 6).

Taft explained in his book that he did not confine himself to powers specifically authorized in statutes or in the Constitution: “the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise.”54 He exercised both enumerated and implied powers. In Taft’s judgment, Lincoln’s “claim of right to suspend the writ of habeas corpus...was well founded.”55 Executive power, Taft said, “is sometimes created by custom, and so strong is the influence of custom that it seems almost to amend the Constitution.”56 Limits could be placed on executive power “so far as it is possible to limit such a power consistent with that discretion and promptness of action that are essential to preserve the interests of the public in times of emergency, or legislative neglect or inaction.”57 Taft’s model is drawn from the Constitution and precedents. Roosevelt’s model is intended to inflate his status and denigrate Taft, often with misconceptions and exaggerations.

C. Contemporary analysis of “herein granted”

Hamilton’s reasoning about Article I’s “herein granted” language has been adopted by some public officials and legal scholars. John Yoo, during his service with the Justice Department from 2001 to 2003, wrote a series of memos that broadly interpreted presidential power in the field of war-making and foreign affairs. In a memo dated September 25, 2001, he concluded that “any ambiguities in the allocation of a power that is executive in nature—such as the power to conduct military hostilities—must be resolved in favor of the executive branch.”58 The reason: “Article II, section 1 provides that ‘[t]‌he executive Power shall be vested in a President of the United States.’”59 Article I, Yoo noted, “gives Congress only the powers ‘herein granted.’”60 To Yoo, the “difference in language indicates that Congress’s legislative powers are limited to the list enumerated in Article I, section 8, while the (p. 67) President’s powers include inherent executive powers that are unenumerated in the Constitution.”61 Yoo relied on Hamilton for his analysis.62

Congress is not limited to the powers enumerated in Article I, section 8. It has a range of powers that are implied in its express duty to legislate. To legislate in an informed manner and to oversee the laws that are enacted, it has the implied powers to investigate, to issue subpoenas, and to hold individuals in contempt.63 With regard to Yoo’s dependence on “inherent” powers for the President, that subject is analyzed in section 4 of this chapter.

In their writings on the “unitary executive,” Steven Calabresi and Christopher Yoo similarly read Article II expansively while pointing to the supposedly more restrictive “herein granted” language in Article I. They note that Hamilton’s principal thesis is that the “executive power” of the nation is vested in the President, “subject only to the exceptions and qualifications which are expressed in the instrument.”64 Hamilton, they say, “bolstered” his analysis by comparing the Vesting Clauses of Article I and II, with Congress receiving powers “herein granted” and the President the “executive power.” They add that this construction of Article II is made “all the more authoritative” by Hamilton’s observation: “this mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate; of which the power of removal from office is an important instance.”65

Hamilton confused two concepts. The President’s authority to remove Cabinet heads is an implied power, reasonably drawn from the President’s express power to see that the laws are faithfully carried out. If the head of a department is unwilling or unable to carry out a law, the President needs power to remove that individual and put in place someone capable of honoring both the statute and the Constitution. Furthermore, the President’s removal power is limited and Madison recognized those limits, as explained in section 7 of this chapter. Section 6, which discusses the difference between ministerial and discretionary duties in the executive branch, makes clear that the rule of law places definite limits on a President’s constitutional authority to interfere with or in any way direct the decisions reached by subordinates within executive departments and agencies. Those limits have been recognized both by federal courts and by Attorneys General.

In recent years, Congress has debated a bill called the Enumerated Powers Act. It is actually something else. The bill would merely require that each statute of Congress “shall contain a concise explanation of the specific constitutional authority relied upon for the enactment of each portion of that Act.”66 The bill is not confined to express or enumerated authority but rather to “specific constitutional authority.” That phrase could include something as broad as the Necessary and Proper Clause, the Commerce Clause, or the taxing power. It could include a (p. 68) range of implied powers, such as the implied congressional power to investigate, issue subpoenas, and hold witnesses in contempt.

On January 5, 2011, the House of Representatives adopted a rule (Clause 7 of Rule XII) that requires members, when introducing a bill or joint resolution, to indicate how their legislation is justified by specific powers granted to the Congress in the Constitution. Members vary in the details included in their “Constitutional Authority Statement.” In introducing H.R. 603 in 2011, Rep. Gregg Harper provided this information: “Congress has the power to enact this legislation pursuant to the following: Article I, Section 8, Clauses 1 and 3 of the Constitution of the United States.”67 A statement by Rep. Erik Paulsen in introducing H.R. 605 that year was even briefer: “Congress has the power to enact this legislation pursuant to the following: Article I, Section 8.”68

In supporting the Enumerated Powers Act, Senator Orrin Hatch stated that Article I gives Congress “only ‘legislative powers herein granted.’ Those powers are listed, or enumerated, in article I, section 8.”69 However, Congress also has powers that are implied. Hatch continued: “The 10th amendment affirms that the Federal Government has only powers that are affirmatively delegated to it.”70 That is a misconception, suggesting that the national government is limited to powers expressly delegated to it. The word “expressly” does not appear in the Tenth Amendment. Hatch further noted: “James Madison agreed in Federalist No. 45 that the powers delegated to the Federal Government are ‘few and defined.’”71 In using those words, Madison never meant that Congress was restricted to enumerated powers. As explained in the section on implied power at the start of this chapter, Madison vigorously denied in the Federalist Papers and in the debates on the Tenth Amendment that a government could be limited to powers expressly identified. To survive and function, all three branches of government require implied powers.

4. Inherent powers

Scholars at times refer to “inherent” presidential power when the more accurate word is implied. For example, in a study on treaties and international agreements, Oona Hathaway stated that the President “has the power to make international agreements entirely on his own inherent constitutional authority. Yet that power is not unlimited.”72 The limits, she explained, are not supplied (p. 69) by international law but by domestic law, and in the United States “the central source to which we must turn is the U.S. Constitution, which is the source of both the President’s unilateral international lawmaking authority and the limits thereon.”73 In other words, the authority is a mix of express and implied powers, not inherent, which as invoked by Presidents and their advisers means powers not subject to checks by the legislative and judicial branches.

A study by Jack Goldsmith and John Manning explored the President’s “completion” power. They state that “each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it.”74 They correctly note that President Truman “relied not on express statutory authority” to seize the steel mills in 1952, “but rather on inherent executive authority emanating from the Clause vesting ‘the executive Power’ in the President, the Commander in Chief Clause, and the Clause enjoining the President to ‘take Care that the Laws be faithfully executed.’”75 Expressed in that manner, it seems that Truman pointed to enumerated and implied powers, but in fact he went beyond those sources and claimed inherent powers not subject to the control of the other branches. As explained in this section and in Chapter 8, section 6, he lost that constitutional argument because it represented a direct attack on the concept of limited government and the American system of checks and balances.

When read in full, the article by Goldsmith and Manning does not argue for inherent presidential power. Instead, they refer to powers expressly stated (the Commander in Chief Clause, the Take Care Clause, and the Executive Vesting Clause) plus powers that are “reasonably incidental” to a statutory command76—that is, a mix of express and implied powers. Importantly (and contrary to those who claim inherent presidential power), the type of power they describe “does not permit the President to act contra legem.”77 They find much of merit in the dissent by Chief Justice Vinson in the Steel Seizure Case, but Vinson did not advocate inherent presidential power. He defended Truman on the basis of legislatively approved policies, treaty obligations (the UN Charter), and military appropriations.78

An express commitment to inherent presidential power comes from John Yoo, who during his service in the Justice Department supported “inherent executive powers that are unenumerated in the Constitution.”79 Some scholars treat implied powers and inherent powers as the same.80 They are quite different. Implied powers are drawn reasonably from express powers. They are therefore anchored in the Constitution. Inherent powers, by definition, are not drawn from express powers. As the word suggests, these powers “inhere” in a person or an office. Black’s Law Dictionary has defined inherent power in this manner: “An authority possessed without its being derived from another....[P]‌owers over and beyond those explicitly granted in the (p. 70) Constitution or reasonably to be implied from express grants.”81 As a concept, inherent power is clearly set apart from express and implied powers.

The Constitution is protected when Presidents act under express and implied powers. It is in danger when they claim inherent powers. John Yoo consistently treats inherent powers as so central to presidential power and national security that they cannot be limited by statutes or treaties. According to his analysis, any power “that is executive in nature” must be vested solely in the executive branch.82 The President, he argues, possesses “complete discretion in exercising the Commander-in-Chief power.”83 Congress’s power to declare war “does not constrain the President’s independent and plenary constitutional authority over the use of military force.”84 The President exercises “plenary authority in foreign affairs.”85 Congress may not by statute “place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”86 The scope and limits of the Commander in Chief Clause are analyzed in Chapter 8.

A constitution safeguards individual rights and liberties by specifying and limiting government. Express and implied powers serve that purpose. Inherent powers invite claims of power that have no limits, other than those voluntarily accepted by the President. What “inheres” in the President? The word “inherent” is sometimes cross-referenced to “intrinsic,” which can be something “belonging to the essential nature or construction of a thing.”87 What is in the “nature” of a political office? Nebulous words and concepts invite political abuse and unconstitutional actions. They threaten individual liberties. Presidents who assert inherent powers move the nation from one of limited powers to boundless and ill-defined authority, undermining republican government, the doctrine of separation of powers, and the system of checks and balances.88 When this type of authority is asserted, as Madison noted in his Helvidius article, “no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.”89

Presidents have at times declined to exercise powers that are not expressly granted or reasonably implied. In 1851, President Fillmore was asked by the marshal of the southern district of New York to provide him with counsel “at the public expense to advise, protect, and defend him” in cases arising under the Fugitive Slave Law. Attorney General Crittenden advised Fillmore “to forbear from interference with the functions of subordinate public officers, and to leave them to the discharge of their proper duties under all their legal responsibilities, and subject also, to removal from office for every neglect or abuse of their official trust.” This principle of non-intervention did not apply to “employment of counsel in cases to which the United (p. 71) States are parties.” To Crittenden, the cases alluded to by the New York marshal “are not of that description.” He concluded that “in this instance, you have no proper authority to comply with the request made by the marshal, and that it would be inexpedient, also, to do so.”90

A different result occurred in 1890, when the Supreme Court supported President Benjamin Harrison’s assignment of David Neagle, a U.S. deputy marshal, to ride circuit to offer protection to Justice Stephen Field.91 Field’s life had been threatened by two people he had sent to jail, David and Sarah Terry. One morning during breakfast, David Terry assaulted Field. Neagle, after identifying himself as a public officer, shot and killed Terry. Attorneys defending Neagle acknowledged that no specific statute made it a duty to furnish protection to a Supreme Court Justice, but argued that whatever was “necessarily implied is as much a part of the Constitution and statutes as if it were actually expressed therein.”92 The Court, divided 6 to 2, agreed: “In the view we take of the Constitution of the United States, any obligation fairly and properly inferrible from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is ‘a law’ within the meaning of this phrase.”93

Two Justices dissented. They agreed with the proposition that “whatever is necessarily implied in the Constitution and laws of the United States is as much a part of them as if they were actually expressed.”94 But the implied powers they recognized were in Article I under the Necessary and Proper Clause. Finding no such law passed by Congress specifically authorizing the President’s decision, and therefore no power of the national government to try a man charged with murder, they would have had Neagle placed in the custody of the sheriff of San Joaquin, California, to be tried in the courts of that state.95

In 1895, a unanimous Court upheld the decision of President Grover Cleveland to send troops to Chicago to break a railroad strike. The railroads were under contract to carry, and did carry, the mails of the United States. Cleveland did not exercise inherent power. Instead, he acted under the implied power of the national government to protect its enumerated interests. At issue for the Court was whether the responsibility of the federal government over interstate commerce and the transportation of the mails authorized direct action to prevent obstruction.96 In describing the system of federalism that divides political power between the nation and the states, the Court claimed that the nation “is properly styled a government of enumerated powers.”97 Implied powers had been recognized for more than a century, but here again is a fixation on enumerated powers for the national government. Still, the Court reasoned: “within the limits of such enumeration it has all the attributes of sovereignty, and, in the exercise of those enumerated powers, acts directly upon the citizen, and not through the intermediate agency of the State.”98(p. 72)

The Court agreed with previous rulings that the national government possessed authority to use physical force to carry out the powers belonging to it.99 Among those powers are the control of interstate commerce and the creation of a post office system for the nation. In exercising those powers, Congress had passed many legislative acts, including the operation of interstate railroads.100 The Court had no doubt that the national government could prevent any unlawful and forcible interference with interstate commerce and the mails. Those who interfered could be prosecuted in the courts. The Court asked: “But is that the only remedy?” If it were, states could regularly frustrate legitimate national interests.101 The Court refused to see such “impotency” on the part of the national government laws.102

Several Presidents have claimed the right to exercise inherent powers. On each occasion they were rebuffed by Congress, the courts, or both: Truman trying to seize steel mills in 1952 to prosecute the war in Korea (Chapter 8, section 6), Nixon impounding appropriated funds (Chapter 6, section 6), Nixon conducting warrantless domestic surveillance (next paragraph), and Bush after the 9/11 terrorist attacks creating military tribunals without first obtaining authority from Congress (Chapter 9, section 8C).

On June 5, 1970, President Nixon met with the heads of several intelligence agencies, including the National Security Agency (NSA), to initiate a program designed to monitor what the administration considered radical individuals and groups in the United States. Joining others at the meeting was Tom Charles Huston, a young attorney working at the White House. He drafted a 43-page top-secret memorandum that became known as the Huston Plan. Huston put the matter bluntly to Nixon: “Use of this technique is clearly illegal; it amounts to burglary.”103 His plan directed NSA to use its technological capacity to intercept—without judicial warrant—the communications of U.S. citizens using international phone calls or telegrams.104

Although Nixon, under pressure from FBI Director J. Edgar Hoover, withdrew the Huston Plan, NSA had been targeting domestic groups for several years and continued to do so. Huston’s blueprint, kept in a White House safe, became public in 1973, after Congress investigated the Watergate affair, and provided documentary evidence that Nixon has ordered NSA to illegally monitor American citizens. To conduct its surveillance operations, NSA entered into agreements with U.S. companies, including Western Union and RCA Global. U.S. citizens, expecting that their telegrams would be handled with utmost privacy, learned that American companies had been turning over telegrams to NSA.105

In 1971, a district court expressly dismissed the claim of a broad “inherent” presidential power to conduct domestic surveillances without a warrant.106 The Sixth Circuit affirmed, unimpressed by the government’s sweeping argument that the power at issue “is the inherent power of the President to safeguard the security of the nation.”107 Unanimously, the Supreme Court (p. 73) affirmed the Sixth Circuit and held that the Fourth Amendment required prior judicial approval for surveillances of domestic organizations.108 The executive branch asserted that the surveillance “was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President’s power (exercised through the Attorney General) to protect the national security.”109 A unanimous Court disagreed. Fourth Amendment freedoms “cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch.” The Fourth Amendment “does not contemplate the executive officers of Government as neutral and disinterested magistrates.”110

Following these decisions, Congress passed legislation to provide statutory guidelines for the President’s power to conduct surveillance over foreign powers. The result was the Foreign Intelligence Surveillance Act (FISA) of 1978.111 In congressional hearings, Attorney General Edward H. Levi testified in support of legislation that would require “independent review at a critical point by a detached and neutral magistrate.”112 The theory of independent and inherent presidential power would be replaced by a judicial check. FISA established a special court, the Foreign Intelligence Surveillance Court (FISC) to ensure outside supervision on the exercise of executive power. FISA made clear that the statutory procedures for electronic surveillance within the United States for intelligence purposes “shall be the exclusive means” for conducting such surveillance.113

5. Prerogative powers

Inherent power is at times identified with the prerogative power. They have very different meanings. Under inherent power, the President claims authority to act independently without any interference from the other branches. Prerogative accepts that the executive may take the initiative, but only with the understanding that the legislative branch must act later: approving or modifying the executive’s decision or even punishing and removing the executive for illegal and unconstitutional conduct. In exercising the prerogative, the President recognizes that he is not acting under the law.

In 1690, John Locke defined prerogative as the power of the executive “to act according to discretion for the public good, without the prescription of the law and sometimes even against it.”114 William Blackstone, writing in 1765, regarded the king’s prerogative as “those rights and (p. 74) capacities which the king enjoys alone.”115 At the Philadelphia convention, the delegates recognized that the President was authorized to “repel sudden attacks,” especially when Congress was not in session to take legislative action.116 There are no grounds, however, for believing that the Framers embraced the British model of Locke and Blackstone, who put all of external affairs with the executive (Chapters 7 and 8).

Presidents have at times gone beyond express and implied powers to unilaterally announce and decide national policy. Generally they discover they need legislative support, either by statute or by treaty. An early example is the neutrality proclamation issued by President Washington in 1793. As explained in section 11B of this chapter, he was embarrassed to discover that his initiative was ineffective in prosecuting those who failed to comply with the proclamation. The reason: jurors refused to find defendants guilty because he lacked statutory authority, a deficiency he proceeded to remedy by requesting what became the Neutrality Act of 1794. President Jefferson exercised the prerogative when he decided to go beyond the instructions of Congress in purchasing territory from France. After receiving legislative authority to pay as much as $10 million for New Orleans and the Floridas, he learned that Napoleon Bonaparte was willing to sell all of Louisiana because he needed money to fight Great Britain. On April 30, 1803, France ceded the vast territory of Louisiana for $15,000,000. The Senate approved the Louisiana treaties and the United States took possession of 828,000 square miles, doubling the size of the nation.117

Jefferson recognized that he lacked authority to act as he did. He wondered whether a constitutional amendment might be required.118 Instead of fabricating a strained constitutional theory to justify his action, he asked Congress for support, which it granted. Particularly because of the “constitutional difficulty,” he thought it might be best for Congress to engage in “as little debate as possible.”119 To his Attorney General, Levi Lincoln, Jefferson decided that a constitutional amendment was not necessary or advisable: “the less that is said about any constitutional difficulty, the better; and that it will be desirable for Congress to do what is necessary, in silence.”120

For certain military actions, Jefferson believed he had authority to act first in defensive operations and seek congressional approval later. After Congress recessed in 1807, a British (p. 75) vessel fired on the American ship Chesapeake. Without specific appropriations for that purpose, Jefferson ordered military purchases for the emergency and reported to Congress after it convened. “To have awaited a previous and special sanction by law,” he said, “would have lost occasions which might not be retrieved.”121 Objections were raised by some lawmakers, but Congress voted overwhelmingly to support Jefferson’s initiative.122

After leaving the presidency, Jefferson wrote to John B. Colvin on September 20, 1810, responding to the question whether “circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law.”123 Jefferson warned that the question “is easy of solution in principle, but sometimes embarrassing in practice.”124 He explained: “A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”125

Jefferson cautioned Colvin about legal and political hazards. A President who acts outside the law “does indeed risk himself on the justice of the controlling powers of the constitution, and his station makes it his duty to incur that risk.”126 Jefferson did not invite “persons charged with petty duties” to exercise the prerogative. Political risks are reserved to higher authorities.127 The prerogative is thus limited by a crucial check: the executive needs to seek and obtain legislative authority.

Nothing in Jefferson’s career in public office reveals a careless or cavalier attitude about the law. His service as Secretary of State in the Washington administration and his eight years as President demonstrate a conscientious effort to ensure the responsible exercise of executive power.128 Examples are offered in Chapter 8 with regard to military actions against the Barbary pirates and possible conflict with Spain. On each occasion he recognized that the institution authorized to take the country from a state of peace to a state of war was Congress, not the President.

President James Monroe exercised a form of prerogative in 1823 by issuing what became known as the “Monroe Doctrine.” It declared the “new world” of the Americas to be off-limits to any attempts by foreign powers to exert their control over neighboring countries. His message to Congress on December 2, 1823, stated that the “American continents” are “henceforth not to be considered as subjects for future colonization by any European powers.”129 Congress could (p. 76) have modified or reversed his doctrine, but Monroe captured a position widely accepted by lawmakers and citizens. In 1904, President Theodore Roosevelt warned that nations in the Western Hemisphere need not fear U.S. interference in their internal affairs, provided that they act with “reasonable efficiency and decency in social and political matters...[and] if it keeps order and pays its obligations....”130 Implied in his announcement was that the United States might feel compelled to intervene militarily when mismanagement prevents nations from meeting their foreign and financial obligations. This policy became known as the “Roosevelt Corollary” to the Monroe Doctrine.131

Presidents have frequently intervened in the Caribbean, Central America, and South America by using military force to pursue U.S. interests: Panama in 1903; the Dominican Republic in 1904; Taft’s interventions in Nicaragua, Honduras, and Cuba; Wilson in Veracruz, the Dominican Republic, and Haiti; Kennedy in Cuba; Reagan in Nicaragua and Grenada; Bush I in Panama; and Clinton in Haiti.132

President Barack Obama has referred to the term “prerogative” to defend what he considered to be his constitutional authority, but his remarks misuse the word. In an April 15, 2011, signing statement, he raised objections to a bill that defunded certain “czar” positions.133 He spoke of the President’s “well-established authority to supervise and oversee the executive branch” and the President’s “prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities.”134 Yes, the President has authority to supervise the executive branch and obtain advice, but he has no authority to create and fund White House positions. That authority belongs to Congress, which can increase and decrease the number of White House officials and increase or decrease their salaries.135 His signing statement claimed that the statutory restrictions “violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”136 The statute did not violate separation of powers. Congress acted within its constitutional authority to decide how many aides a President may have and how much they will be paid. Obama referred to a prerogative that did not exist. The only advice a President is entitled to, without limit, is advice from individuals in the private sector.

6. Ministerial and discretionary powers

Marbury v. Madison (1803) is incorrectly praised for the doctrine of judicial supremacy. The author of that opinion, Chief Justice John Marshall, did not believe that judicial rulings were (p. 77) necessarily preeminent over the other branches and controlling on them. He knew that any effort by him to order President Jefferson or Secretary of State Madison to deliver the disputed commission to William Marbury would have been ignored. The legal and political issues of Marbury are covered in Chapter 9, section 1. Of interest here is the valuable distinction that Marshall drew between ministerial and discretionary duties.

Marshall explained that the heads of executive departments function in part as political agents of the President. At the same time, they receive legal duties assigned to them by Congress. Focusing on the Secretary of State, Marshall said the office exercised two types of duties: ministerial and discretionary. The first duty extends to the nation and the law. By statutory command, Congress may direct executive officers to carry out certain activities. When a Secretary of State performs “as an officer of the United States,” he or she is “bound to obey the laws.”137 Functioning in that capacity, the Secretary acts “under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.”138

Marshall recognized that the President under the Constitution “is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience.”139 To assist him in the performance of those duties, “he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders.”140 In such cases, “their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive....The acts of such an officer, as an officer, can never be examinable by the courts.”141

At times the Secretary of State conforms to the President’s will. On other occasions Congress by statute may direct the Secretary of State to carry out specified ministerial acts. Marshall underscored that point: “But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot, at his discretion sport away the vested rights of others.”142

A. Attorney General opinions

The distinction between ministerial/legal and discretionary/political has been the subject of many opinions issued by Attorneys General and federal courts. In 1823, Attorney General William Wirt analyzed for President James Monroe the extent of his control over agency accounting officers. The laws regulating the settlement of public accounts required Auditors in the Treasury Department to (p. 78) receive and examine accounts and certify them to the Comptrollers, who then examined and passed judgment on them. Although the Constitution requires the President to “take Care that the Laws be faithfully executed,” he is not expected to execute each law by himself. If officers under his supervision fail to carry out their duties, the President needs to see that they are “displaced, prosecuted, or impeached.”143 It “could never have been the intention of the constitution, in assigning this general power to the President to take care that the laws be executed, that he should in person execute the laws himself.” Such a burden would be “an impossibility.”144

It is not the President’s duty to audit public accounts. If Auditors and Comptrollers “continue to discharge their duties faithfully,” Wirt advised Monroe, “the President has no authority to interfere.”145 Any person dissatisfied with the Comptroller’s decision may, under law, appeal within six months. At that point “the right of appeal stops; there is no proviso for an appeal to the President.”146 Wirt reminded Monroe of his constitutional duties over foreign and domestic relations, as Commander in Chief, exercise of the pardon power, and handling appointments, including the filling of vacancies during a Senate recess.147 How could the President perform those duties, and others, “if he is also to exercise the appellate power of revising and correcting the settlement of all the individual accounts which pass through the hands of the accounting officers?”148

Over the next few years, Wirt had frequent occasion to instruct Monroe that he had no business being involved in the settlement of accounts.149 Interference by the President “in any form would, in my opinion, be illegal.”150 It “would be an unauthorized assumption of authority for you to interfere in the case in any manner whatever.”151 Two more opinions by Wirt in 1825 drove home the same point.152 In 1831, Attorney General Roger Taney advised President Andrew Jackson that a dispute over the decision of the Treasury Department about a government contractor had to be left to Congress. An appeal could not be submitted “to the President. The power to give relief resides in Congress; and to them, in my opinion, the application must be made.”153

Attorney General John Mason offered similar advice to President James Polk in 1846. An appeal had been forwarded to the President following a decision by the Commissioner of Pensions, later approved by the Secretary of War. The Constitution, Mason said, “assigns to Congress the power of designating the duties of particular subordinate officers,” and the power of removal does not include “the power of correcting, by his own official act, the errors of judgment (p. 79) of incompetent or unfaithful subordinates.”154 Moreover, the President could not discharge “the high constitutional duties of the President” if he were to “undertake to review the decisions of subordinates on the weight or effect of evidence in cases appropriately belonging to them.”155 If someone wanted to appeal a decision of the Commissioner, they were entitled to “apply for relief to Congress, whose power cannot be doubted.”156

In 1850, Attorney General John Crittenden advised President Millard Fillmore that a decision by the Comptroller of the Treasury on a claim was “final and conclusive” on all branches of the executive government. Presidents had no business exercising an appellate jurisdiction in the settlement of claims. Their duties were of a higher order: “the settlement & adjustment of accounts have been left to accountants.”157 In a memo to President Franklin Pierce in 1854, Attorney General Caleb Cushing distinguished between ministerial and discretionary acts: “Where the laws define what is to be done by a given head of department, and how he is to do it, there the President’s discretion stops; but if the law require an executive act to be performed, without saying how or by whom, it must be for him to supply the direction, in virtue of his powers under the Constitution, he remaining subject always to that, to the analogies of statute, and to the general rules of law and of right.”158 Presidents Abraham Lincoln, Ulysses S. Grant, Chester A. Arthur, and Benjamin Harrison received similar advice from their Attorneys General.159

B. Amos Kendall case

Through litigation, federal courts developed their own understanding of ministerial and discretionary duties. A major case involved a private contract entered into with William T. Barry, Postmaster General of the United States. The contractors were entitled to certain credits and allowances for transporting mail. In 1835, Barry resigned and Amos Kendall took his place. Kendall reexamined the contracts and ordered that the allowances and credits be withdrawn. Congress passed legislation on July 2, 1836, directing the Solicitor of the Treasury Department to settle and adjust the claims brought by the contractors.160 The Solicitor completed his assignment and awarded the contractors the amount of $161,563.89 in principal and interest. Instead, Kendall awarded them $122,101.46.161

The contractors requested President Andrew Jackson to comply with the statute and award them the full amount. He advised them to take their grievance to Congress, which would be “the best expounder of the intent and meaning of their own law.”162 The Senate Judiciary Committee, after reviewing the matter, concluded that Congress intended the Solicitor’s award to be final (p. 80) and that Congress need take no further action. A district court and circuit court ruled against Kendall, issuing a mandamus requiring him to credit the contractors with the full amount as decided by the Solicitor.163

In arguments before the Supreme Court, the administration protested that the “judiciary has assumed a power which the executive department resists. It is a power hitherto unknown to the judiciary—hitherto exercised by the executive alone, without question.”164 Intervention by the judiciary “annihilates one great department in one of its appropriate functions, if not all the departments.”165 The executive power “is vested in the President, and cannot be vested elsewhere....[I]‌t cannot be given to the courts, because it is not judicial power.”166 The attorney representing the contractors summarized the administration’s position in these terms: “Substantially, this Court is asked...to expunge the act of congress from the statute book; and to treat the proceedings of the solicitor as a nullity.”167

Attorney General Benjamin Butler told the Court that when Congress passes legislation “in matters properly concerning the executive department, it belongs to the President to take care that this law be faithfully executed; and we apply to such a case the remark of Gen. Hamilton, in Pacificus, that ‘he who is to execute the laws, must first judge for himself of their meaning.’”168 Butler parted company with Attorneys General before him who regularly counseled Presidents not to involve themselves in the settlement of accounts because it was impracticable and inappropriate for them to function as an accountant.

The Court rejected the administration’s legal and constitutional arguments. Justice Smith Thompson, writing for the Court, denied that the case interfered “in any respect whatever” with the rights and duties of the President. The mandamus ordered the performance “of a mere ministerial act, which neither he nor the President had any authority to deny or control.”169 To Thompson, the vesting of the executive power in the President did not mean “that every officer in every branch of that department is under the exclusive direction of the President.” Certain political duties imposed on executive officers are under the direction of the President, “[b]‌ut it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.”170

The statute directed the Postmaster General to credit the contractors with whatever sum the Solicitor decided was due them. No one in the executive branch could exercise discretion or control over the Solicitor’s decision.171 In the words of Justice Thompson: “To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to (p. 81) forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”172 Chief Justice Taney differed with Thompson only on the authority of the circuit court to issue a writ of mandamus in this case.173 Justice Barbour also dissented from the majority opinion with regard to the circuit court’s mandamus authority.174 Justice Catron concurred in the opinions of Taney and Barbour.175

Kendall’s case was cited by the Supreme Court in 1840 when it decided the case of Susan Decatur, widow of Captain Stephen Decatur. Congress had passed two laws: a general one for widows of any officer who died in the naval service, and a second one specifically for Susan Decatur. She wanted compensation under both laws. The Secretary of the Navy, supported by the Attorney General, advised her to select one. She chose the general law. After the Secretary of the Navy retired and was replaced by James K. Paulding, she asked for compensation under both laws and took the dispute to court. The Supreme Court held it had no jurisdiction to second-guess the Secretary’s decision.176 Some of the Justices wondered why the Court would even take a case where it had to sit in judgment of the Secretary of the Navy backed by the President and the Attorney General.177

Within a few years, Amos Kendall was back in court. The contractors sued him for damages resulting from the delay in payment and costs in court. A jury found malice in Kendall’s conduct and awarded damages of $11,000. The allegation of malice was later dropped but Kendall was again found liable.178 To Chief Justice Taney, a public officer is not liable when “it is his duty to exercise judgment and discretion; even although an individual may suffer by his mistake.”179 Taney said that Kendall “committed an error in supposing that he had a right to set aside allowances for services rendered upon which his predecessor in office had finally decided.” But Kendall acted “from a sense of public duty and without malice,” and his action in a matter properly belonging to his department could give no cause for a second lawsuit against him.180

Taney denied that a private party may bring two lawsuits for the same cause of action. The contractors in the mandamus suit recovered “the full amount of the award.”181 The second suit was an effort to recover damages resulting from the detention of the money. Taney found that procedure impermissible: “The law does not permit a party to be twice harassed for the same cause of action; nor suffer a plaintiff to proceed in one suit to recover the principal sum of money, and then support another to recover damages for the detention.”182 Had Kendall refused to obey the mandamus, “then indeed an action on the case might have been maintained against (p. 82) him. But the present suit is not brought on that ground.”183 Taney found another point objectionable. The largest item in the amount of $11,000 consisted of interest of more than $9,000, but the record showed that the contractors had earlier requested interest from the Solicitor, who granted them $6,893.93 for that purpose. To allow this claim in the second suit “was to enable the plaintiffs to recover twice for the same thing.”184

In a dissenting opinion, Justice McLean disagreed about giving immunity to an executive officer who is said to act in good faith.185 It seemed immaterial to McLean whether an officer does or does not act in good faith. The issue was “the character of the act and its consequences,” not “the intent with which it was done.”186 If a public officer injured an individual in an action that did not come within the exercise of discretion, the officer “may be held legally responsible.”187 A year after the Court’s decision, Congress passed a private bill providing Kendall with counsel fees and other expenses in this second lawsuit.188

C. Other court rulings

Federal courts frequently explored the distinction between ministerial and discretionary duties. In 1880, the Supreme Court reviewed the case of an individual who appeared to be entitled to 160 acres in Utah. The title for the property had been prepared with instructions to deliver it to him. When he appeared at the local land-office in Salt Lake City, he learned that the title had been returned to the Department of the Interior, subject to the control of Secretary of the Interior Carl Schurz. Could a court issue a mandamus ordering Schurz to deliver the title to the individual?189 The Court reviewed the principles that had been developed under Marbury v. Madison and Kendall v. United States, distinguishing between executive acts that require judgment and discretion versus those that are merely ministerial.190

The Court turned to the Article IV authority of Congress “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”191 Under this statutory structure of the case, the Court decided that once a title for property of public lands is granted to a citizen, the President signs the title and it is countersigned by the recorder of the land-office and recorded in the record book kept for that purpose, the public act of the government is complete. Delivery of the title is not necessary.192 The land “has ceased to be the land of the government.”193 There “remains the duty, simply ministerial, to deliver the patent to the owner,—a duty which, within all the definitions, can be enforced by the writ (p. 83) of mandamus.”194 In their dissent, Chief Justice Waite and Justice Swayne agreed that when all steps of granting public land to an individual are complete, actions after that point are ministerial. Actual delivery is not necessary. But the record convinced Waite and Swayne that a dispute pending before the department required judgment and discretion. Only after resolving that dispute in the individual’s favor, they said, would the action in granting title be considered ministerial.195

A Supreme Court decision in 1884 analyzed competing theories of executive control. In one, the Secretary has ultimate control over every action within the department.196 In the other, the Secretary’s control depends on the nature of the duties entrusted to subordinates and the statutory policy adopted by Congress.197 A unanimous Court held that legislative policy for the Department of the Interior created a system of tribunals and judicial proceedings, including authority by the Commissioner of Patents to award a patent to an inventor. The Court concluded: “to whatever else supervision and direction on the part of the head of the department may extend, in respect to matters purely administrative and executive, they do not extend to a review of the action of the Commissioner of Patents in those cases in which, by law, he is appointed to exercise his discretion judicially.” The statutory scheme convinced the Court that the Commissioner of Patents was expected to exercise “quasi-judicial functions” and those decisions were final and conclusive over the Secretary.198 If the Commissioner decided erroneously, the appeal is not to the Secretary but to the agency tribunals created to provide that review.199

A unanimous decision by the Supreme Court in 1885 concluded that when Congress directs the head of an executive department to pay a specified sum to a named person for a specific purpose, the matter allows for no discretion. It is a ministerial duty, to be put into effect without any individual judgment.200 Similarly, a unanimous Court in 1898 ruled there was no power on the part of Treasury Department officers to reexamine the correction of a claim paid by virtue of a congressional statute. Instead, it was the duty of executive officers to pay the money as directed by the statute.201 A decision by the D.C. Circuit in 1954 concerned a congressional statute that directed the Secretary of the Interior to place certain moneys in a special account. It concluded that the Secretary was “specifically and unequivocally directed by the Congress to cause the distribution of that balance according to the terms of the statute.” That decision was later vacated as moot.202

These cases were generally directed at the heads of executive departments. They can also be aimed at the President. Federal courts invoked the ministerial-discretionary distinction on a regular basis during the Nixon administration to force the release of funds the President refused to spend (the “impoundment” dispute, analyzed in Chapter 6, section 6).203 These cases reached (p. 84) the President indirectly through department heads. Lawsuits can also specifically target the President. In 1974, an appellate court held that President Nixon had violated the law by refusing to carry out a statute on federal pay. It was his obligation to either submit to Congress a pay plan recommended by the salary commission or offer his own alternative proposal. Nixon had done neither. He was required, said the court, to do one or the other. There was no constitutional authority to ignore the law.204

7. Removal power

Law professor and former Justice Department official John Yoo has written: “From the time of George Washington, presidents have understood Article II to grant them the authority to hire and fire all subordinate officers of the United States, and hence command their activities, even though the Constitution mentions only the power to appoint, not to remove.”205 That claim is too broad. It is true that in 1789, during debate on the new executive departments, Congress agreed to recognize an implied power of the President to remove Cabinet heads who interfered with his constitutional duty to “take Care that the Laws be faithfully executed.” But Congress also recognized limits on the removal power.

This debate, frequently referred to as the “Decision of 1789,”206 occupies almost 200 pages of the legislative record. James Madison precipitated the debate by proposing three executive departments: Foreign Affairs, Treasury, and War. At the head of each department would be a Secretary appointed by the President with the advice and consent of the Senate “and to be removable by the President.”207 William Smith of South Carolina immediately objected to giving the President the sole power of removal. Madison countered by saying the removal power would make the President responsible for the conduct of department heads.208 Theodorick Bland wanted the removal power shared with the Senate to make it consistent with the appointment process. The House rejected his motion.209

The debate continued from May 19 through July 1, representing one of the most thorough expositions on the nature of implied power and an excellent example of lawmakers taking seriously their duty to shape constitutional meaning.210 As the debate continued, members wondered whether they should delete the words “to be removable by the President.” They finally decided to acknowledge the President’s removal power by implication, not by explicit declaration. The Senate encountered tie votes on the President’s power to remove the Secretary of Foreign Affairs. Vice President John Adams broke the tie to preserve the President’s power. Other votes in the Senate were quite close, such as 9 to 10 on a motion to strike the President’s power to remove (p. 85) the Secretary of War.211 Congress eventually passed legislation to adopt the same approach for all three departments. The subordinate officers would have charge and custody of all records whenever the Secretary “shall be removed from office by the President of the United States.”212

The fact that Congress recognized the President’s freedom to remove department heads did not mean the President was at liberty to remove all subordinate executive officials. When Madison turned his attention to the Comptroller of the Treasury, he said it was necessary “to consider the nature of this office.” To Madison, its properties were not “purely of an Executive nature.” It seemed to him “they partake of a Judiciary quality as well as Executive; perhaps the latter obtains to the greatest degree.” Because of the mixed nature of the office, “there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch of the Government.”213

How did Madison know so much about a Comptroller’s office being created in 1789? The answer is that in 1781 the Continental Congress created the positions of a Superintendent of Finance, auditors, and a Comptroller to function as a semi-judicial officer. The Comptroller was responsible for the settlement of public accounts. On all appeals it was his duty to openly and publicly hear the parties. His decision after the hearing was final and conclusive. As pointed out in the last section on ministerial and discretionary actions, those types of accounting judgments convinced Attorneys General to advise Presidents to stay out of them. Perhaps ironically, the President had more control over a department head than subordinate officers.

A. Confrontations with Andrew Jackson and Andrew Johnson

President Andrew Jackson collided with Congress in 1833 when he removed the Secretary of the Treasury for refusing to carry out his policy toward the U.S. Bank. Congress had been comfortable in treating the Departments of Foreign Affairs and War as executive departments, but lawmakers regarded Treasury with proprietary interest, often treating the Secretary as its agent. It had, for example, delegated to the Secretary—not the President—responsibility for placing public funds either in national banks or state banks. As explained in Chapter 2, section 9C, and Chapter 6, section 3, this dispute ripened into a Senate resolution of censure, an action that Jackson deeply resented. Three years later the Senate expunged the resolution from its record.

Enactment of the Tenure of Office Act in 1867 set the stage for another poisonous dispute between Congress and the President. Under the statute, every person holding civil office with the advice and consent of the Senate was entitled to hold office until the President appointed a successor, with the advice and consent of the Senate. With regard to the Secretaries of State, Treasury, War, Navy, and Interior, the Postmaster General, and the Attorney General, those individuals would hold office during the term of the President who appointed them and for one (p. 86) month thereafter, “subject to removal by and with the advice and consent of the Senate.” During recesses the President could suspend an official but would have to report to the Senate, upon its return, the evidence and reasons for the suspension. If the Senate concurred in his action, the suspended officer would be removed. If the Senate did not concur, the suspended officer would resume the functions of his office. Johnson vetoed the bill, providing reasons why it violated the Constitution and the construction placed upon it by the debates in 1789, but both houses promptly overrode his veto.214

Johnson hoped the disruptive voice in his Cabinet, Secretary of War Edwin Stanton, would resign. He did not. After Johnson suspended Stanton, the Senate refused to concur. Johnson escalated the dispute by removing Stanton, hoping the constitutionality of the Tenure of Office Act would be tested in the courts and he would prevail. His tactic failed because Ulysses S. Grant, whom Johnson had installed as War Secretary ad interim, and Grant’s successor, Lorenzo Thomas, enabled Stanton to regain his office. The crisis led to Johnson’s impeachment in the House and trial in the Senate, where the effort to remove him fell one vote short.215

President Grant, in his first annual message in 1869, recommended the repeal of the Tenure of Office Act, arguing that the law was inconsistent with efficient and accountable administration. Congress revised the act that year, softening the suspension session but retaining the Senate’s involvement in the removal process.216 Congress continued to expand the Senate’s role. Legislation in 1872 required the Postmaster General and his three assistants be appointed by the President, by Senate advice and consent, and provided that they might be “removed in the same manner.” Four years later, Congress required the Senate’s advice and consent for the removal of all first-, second-, and third-class postmasters.217

Conflicts over the removal power deepened from 1885 to 1886, when President Grover Cleveland suspended several hundred officials and refused to deliver papers and documents to the Senate, as required by law. He insisted that the power to remove or suspend executive officials was vested solely in the President by the Constitution, particularly by the “Executive Power” and “Take Care” Clauses. He argued that the law governing suspensions, as amended in 1869, did not justify the Senate’s request for documents. Under these pressures, Congress repealed the Tenure of Office Act in 1887.218

B. Court interpretations

In 1839, the Supreme Court directed its first full attention to the scope of the removal power. After a new federal district judge decided to remove his clerk, the clerk requested a writ of (p. 87) mandamus to restore him to office. Although the Court was briefed extensively on the “Decision of 1789” and the various positions that had been debated and decided by Congress, it refused to get involved. It ruled unanimously that the power to appoint or remove the clerk had been vested exclusively in the lower court. The Court held that it lacked any jurisdiction over the appointment or removal of clerks in the lower courts. If the judge had acted improperly or without authority, the Court advised the plaintiff to look elsewhere for relief. Precisely how or where, the Court did not disclose.219

In 1854, the Court reviewed the President’s authority to remove Aaron Goodrich as Chief Justice of the Supreme Court of the territory of Minnesota. This was no mere case of a federal district judge removing a clerk. It was now the President exercising control over the judiciary. Attorney General Crittenden advised President Fillmore that he possessed the power to remove territorial judges “for any cause that may, in your judgment, require it.”220 Unlike federal judges, territorial judges did not serve for life. In Minnesota they served for a term of four years.221 Territorial judges did not sit on constitutional courts, as with Article III courts. They sat on legislative courts, created by statute under Article I and subject to the conditions imposed by Congress.222

Writing for the majority, Justice Daniel said the key question did not relate to the tenure of office or the powers and functions of the President. Instead: could a court command the withdrawal of money from the Treasury to settle Goodrich’s claim? Daniel regarded the President’s action as executive in nature, requiring judgment and discretion, and could not therefore be reviewed and countermanded by the courts.223 In a dissent, Justice McLean agreed that the President’s removal power over executive officers had been well established, but extending it to judicial officers presented a unique matter. The President’s responsibility over administrators related to political, not judicial, officers. Subjecting judicial power to executive control would put an end to the “independence and purity” of the courts. To McLean, paying money to Goodrich represented a ministerial act subject to mandamus proceedings.224

A unanimous Court in 1886 held that a naval cadet, discharged by the Secretary of Navy, remained in office and entitled to the pay attached to it. The Court ruled that when Congress vests in the head of a department the appointment of inferior officers, it may limit and restrict the power of removal as it considers best for the public interest.225 Another unanimous Court, in 1903, recognized that Congress may, by statute, specify the cause for removing executive officials. Congress had identified “inefficiency, neglect of duty, or malfeasance in office” as the statutory grounds for removing a customs official. President McKinley removed a customs official without relying on any of those reasons. The Court acknowledged that Congress can limit (p. 88) the President to specified causes, but only if the statute uses “plain language” to restrict the President’s general power of removal.226 Other cases during this period concerned the authority of Congress to limit presidential removals to causes prescribed by law.227

C. From Myers to Humphrey’s Executor

The celebrated case of Myers v. United States (1926) appeared to mark a broad endorsement of independent presidential power to remove subordinates. A close reading of this lengthy opinion yields a more modest grant of executive authority. The case began with the appointment of Frank S. Myers, postmaster at Portland, Oregon, to a four-year term in 1917. Prior to the expiration of his term, the Postmaster General removed him, an action concurred in by President Wilson. Legislation required the Senate’s advice and consent for the removal of all first-, second-, and third-class postmasters, which covered Myers. He sued to recover his salary. His attorneys argued the appointment of postmasters derived from a statute based on specific constitutional powers given to Congress (“to establish post offices and post roads”), enabling Congress to attach certain conditions to an appointment. In response, Solicitor General James M. Beck maintained that the legislative condition requiring Senate advice and consent for removals could be struck down “without assuming the absolute power of the President to remove any executive officer.”228

Chief Justice Taft, writing for a 6-3 majority, decided on a broader interpretation of presidential power—too broad to withstand scholarly scrutiny and subsequent Court holdings. Taft rejected his earlier position in Wallace (1922), where he had held that “at least in absence of restrictive legislation, the President, though he could not appoint with the consent of the Senate, could remove without such consent in the case of any officer whose tenure was not fixed by the Constitution.”229 He now claimed a presidential power to remove even in the presence of statutory limitations. From the congressional debates of 1789 he concluded there was not the “slightest doubt” that the power to remove officers appointed by the President and the Senate is “vested in the President alone.”230 The record from 1789 in fact revealed deep divisions among lawmakers and extremely close (even tie) votes in the Senate. Lawmakers certainly supported presidential removal of department heads. There was no reason to automatically extend that principle to first-, second-, and third-class postmasters.

Taft necessarily acknowledged that the Court in Shurtleff (1903) agreed that Congress might restrict the President’s removal power by specifying causes of removal. He was also aware that Congress, in establishing regulatory agencies (such as the Interstate Commerce Committee in 1887), had specified causes for removal: inefficiency, neglect of duty, and malfeasance in office. In a significant passage—frequently overlooked by those who parse this 71-page opinion—Taft admitted that “there may be duties so peculiarly and specifically committed to the discretion of (p. 89) a particular officer as to raise a question whether the President may overrule or revise the officer’s interpretation of his statutory duty in a particular instance.”231 Here he referred to executive, not adjudicatory, duties, because in the next sentence he identified a second limitation on presidential removals: “Then there maybe duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.”232 Attorneys General had been flagging those issues ever since 1823.

In a dissent, Justice Holmes described Taft’s arguments as “spider’s webs inadequate to control the dominant facts.”233 A dissent by Justice McReynolds identified many of the statutes that set forth restrictions on removals.234 In a third dissent, Justice Brandeis agreed that the power to remove or suspend a high political officer “might conceivably be deemed indispensable to democratic government and, hence, inherent in the President.”235 But he strongly rejected the idea that the workings of government required presidential removal of an inferior administrative officer appointed for a fixed term, such as a postmaster.236

Taft’s decision aroused strong criticism from the academic community. The most devastating rebuke came from political scientist Edward S. Corwin. He did not object that the President could remove someone he had appointed with the advice and consent of the Senate. Such a position, although “decidedly vulnerable on both historical and logical grounds, is not improbably supported by practical considerations.”237 What Corwin found indefensible was the claim that the President could remove any executive officer. He believed a balance had to be found between two competing constitutional principles: the President’s removal authority and the power of Congress to create an office under the Necessary and Proper Clause. In analyzing that balance, Corwin emphasized the nature of a political office. He pointed to employees in the civil service who could not be removed “except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him.” Congress has passed many statutes that specified the causes to remove commissioners from regulatory agencies.238

The issue that split the Court in Myers returned less than a decade later in Humphrey’s Executor v. United States (1935). William E. Humphrey, nominated by President Hoover for the Federal Trade Commission (FTC) in 1931, had been confirmed by the Senate. Under the FTC Act, the President could remove a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” On July 25, 1933, President Roosevelt asked Humphrey to resign: “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission.” Humphrey’s response described unnamed enemies with “slanderous and polluted (p. 90) lips and spew their putrid filth upon you under the pledge of secrecy.”239 Confronted by someone who refused to resign, Roosevelt removed Humphrey for purely policy reasons rather than those specified in the statute.

A unanimous opinion by Justice Sutherland went against Roosevelt. The Court described FTC as charged with the enforcement of “no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” Sutherland distinguished between the executive duties of a postmaster (Myers) and those of an FTC commissioner. The FTC, he said, “cannot in any proper sense be characterized as an arm or an eye of the executive.”240 If would be a stretch to call even a postmaster an arm or an eye of the President.

Roosevelt’s removal of Arthur E. Morgan, chairman of the Board of Directors of the Tennessee Valley Authority (TVA), led to another round of courts cases, this time with the agency regarded as predominantly an administrative arm of the executive branch and therefore distinguishable from the FTC.241 More analogous to Humphrey’s was President Eisenhower’s removal of a member of the War Claims Commission in 1953. A unanimous Supreme Court held that the President possessed no authority under the Constitution or a statute to remove a member of the commission. The agency’s task, said the Court, had an “intrinsic judicial character.”242 Important cases involving the removal power for independent commissions, boards, and the independent counsel continue to be decided, raising questions about the continued force of Humphrey’s Executor (Chapter 4, sections 8 and 12).

A number of important dismissals for disloyalty reached the courts, some raising a bill of attainder issue (Chapter 4, section 10). Others involved removals of federal employees on national security grounds (Chapter 7, section 10). A Supreme Court removal case in 1987 turned on First Amendment rights of federal employees.243 Several cases focused on patronage dismissals at the state and local levels.244 President Clinton’s firing of seven employees of the White House Travel Office (“Travelgate”) caused severe political damage to the administration.245 A long simmering dispute over appointment and removal of members of the Civil Rights Commission was resolved in 2002 in favor of President Bush.246

Congress has a significant role in the removal process. It may remove an individual by abolishing the office. Either house of Congress can use different methods in attempting to dislodge federal employees, ranging from passing simple (non-binding) resolutions or concurrent (p. 91) resolutions (also non-binding) and conducting investigative hearings, using a variety of tactics for the purpose of driving out federal employees. Congress can also use legislative tools to protect federal employees from removal.247 The abolishment of Article III judges is treated in Chapter 9, section 2.

8. Pardon power

Article II, section 2 empowers the President to grant “Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The authority is limited to offenses against the United States, not against individual states and localities. At the Philadelphia Convention, Luther Martin proposed adding the words “after conviction” following “reprieves and pardons.” James Wilson objected that granting a pardon before conviction “might be necessary in order to obtain the testimony of accomplices,” and this might “particularly happen” in the case of forgeries. Martin withdrew his motion.248 Another substantive discussion concerned adding the language “except cases of treason.” Edmund Randolph feared that the President “may himself be guilty. The Traytors may be his own instruments.” James Wilson countered that if the President were a party to the guilt “he can be impeached and prosecuted.” Randolph’s motion failed, 2 to 8, with one state divided.249

In Federalist No. 74, Hamilton described the pardon power as essential because the “criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinely and cruel.”250 Placing the pardon power in one person, he said, would permit prompt and timely action. In time of insurrection or rebellion, “there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”251 Exercising this power may take various forms: a full pardon, conditional pardon, clemency for a class of people (amnesty), commutation (reduction of a sentence), and remission of fines and forfeitures.252

Through its appropriations and taxing powers, Congress may also remit fines, penalties, and forfeitures. Congress has vested that authority in the Secretary of the Treasury and other executive officials.253 Congress may legislate a general pardon or amnesty by repealing a law that had imposed criminal liability. Congress derives this power not by “sharing” the President’s pardon power but through its authority to legislate and to repeal legislation. Certain statutory provisions have been struck down by the Supreme Court as impermissible interferences with the (p. 92) pardon power.254 When a proviso in an appropriations statute attempts to control the President’s power to pardon and to prescribe for the judiciary the effect of a pardon, the statutory provision is invalid.255 After the Civil War, several conflicts developed between presidential pardons and legislation passed by Congress regarding Southern sympathizers.256

The Office of the Pardon Attorney in the Justice Department provides assistance to the President. The general procedure is to have petitioners seeking a pardon submit their applications to the Office, where they are screened and evaluated, and comments are received from the law enforcement community before the Office makes a recommendation to the President. Most petitioners go through that process. Others, with the support of influential and powerful interests, go directly to the President. As explained below, some of these petitioners prevail but only at the cost of damaging the reputation of the President.

Judicial Watch, a non-profit public interest organization, requested documents concerning pardon applications considered or granted by the Pardon Office during the Clinton administration. The Justice Department released thousands of pages of documents but withheld 4,865 pages, citing two exemptions in the Freedom of Information Act (FOIA). The materials were withheld on the grounds that they were protected by the presidential communications and deliberative process privileges. A district court held that the documents were legitimately withheld because they were intended to advise the President on a “quintessential” matter of executive power expressly stated in the Constitution.257 The D.C. Circuit reversed, pointing out that the Pardon Office did not involve the President or close White House advisers. The appeals court also noted that the Office of the President is distinct from the Executive Office of the President (EOP). Although the EOP is an agency subject to FOIA, the Office of the President is not.258

Controversial pardon decisions over the last half century have circumvented the Office of the Pardon Attorney, with petitioners seeking relief directly from the President and a small circle of White House advisers. These decisions include the pardon of Richard Nixon, the Iran-Contra pardons in the Bush I administration, the FALN commutation and Marc Rich pardon in the Clinton administration, and the Scooter Libby commutation in the Bush II administration.259

On September 8, 1974, President Ford granted a full pardon “for all offenses against the United States which Richard Nixon has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.” To allay the concerns of some lawmakers that he might have entered into a deal with Nixon to secure the nomination as (p. 93) Vice President, Ford agreed to appear before a House Judiciary subcommittee to explain why he granted the pardon.260 Some critics regarded it as improper for Ford to grant a pardon before formal charges had been lodged and without a formal admission of guilt from Nixon. However, it is established that a pardon may be granted before conviction and even before indictment.261 There are, nonetheless, substantial political risks. Without access to facts produced through the normal trial procedure, a President may grant a pardon that looks ill-considered after new evidence comes to light. For that reason, Attorneys General have generally cautioned against issuing a pardon before trial.262

In 1977, President Carter clashed with Congress over two appropriations acts that prohibited him from using funds to carry out his amnesty order. With certain exceptions, his order granted an unconditional pardon for Vietnam-era violators of the selective service laws. Some of his actions, such as canceling indictments and terminating investigations, did not depend on appropriations. He particularly objected to a statutory prohibition concerning the exclusion of aliens because of possible violations of selective service law. Carter considered these provisions an unconstitutional interference with his pardon power, a bill of attainder, and a denial of due process.263

The Iran-Contra affair involved the sending of arms to Iran and the supply of military assistance to the Contra rebels in Nicaragua. The former violated the announced policy of the Reagan administration; the latter violated statutory law. A number of mid-level and low-level officials in the administration were convicted for their participation, as were several individuals from the private sector. The legal and constitutional issues were so serious that officials within the administration recognized that President Reagan could be impeached. To forestall that prospect, Reagan took the extraordinary step of completely waiving executive privilege. He directed Cabinet members and other officials to testify fully before Congress and disclose matters that on other occasions would have been withheld (Chapter 6, section 9).264

On December 24, 1992, in one of his last actions in office, President George H. W. Bush pardoned six individuals for their conduct in the Iran-Contra affair: former Secretary of Defense Caspar Weinberger, former Assistant Secretary of State Elliot Abrams, former National Security Adviser Robert McFarland, and three officials from the Central Intelligence Agency: Duane Clarridge, Alan Fiers, and Clair George. Several of these individuals faced prosecution and possible conviction. The pardon of Weinberger was criticized because Bush had a direct and (p. 94) apparent conflict of interest. The defense in the Weinberger prosecution indicated that it might call Bush and subject him to cross-examination for his role in the Iran-Contra affair.265

Although Presidents possess exclusive authority to grant pardons, misuse of that power has damaged many occupants of the Oval Office. On August 11, 1999, Bill Clinton offered clemency to 16 members of a Puerto Rican terrorist group, the FALN (Armed Forces of Puerto Rican National Liberation). Fourteen accepted the conditions attached to the clemency (such as renouncing violence). They had been convicted and imprisoned for seditious conspiracy for planting more than 130 bombs in public places in the United States, including shopping malls and restaurants. At least six people were killed and approximately 70 injured. The FALN operation marked the biggest terrorist campaign within U.S. borders, and yet Clinton’s clemency released individuals from prison after serving less than 20 years of terms running from 55 to 90 years.266

Clinton’s action was criticized for a number of reasons. It did not receive the formal review of the Pardon Attorney, the Deputy Attorney General, or the Attorney General. Some Justice Department officials met several times with advocates for FALN clemency but did not solicit the views of victims or law enforcement officials. Background checks by the FBI were not requested. The White House knew that the FBI was on record as opposed to clemency for the FALN members. The clemency provoked bipartisan condemnation from members of Congress. Democrats were either silent on the clemency decision or issued public rebukes. Both houses passed resolutions condemning Clinton’s pardons. The House resolution passed 311 to 41. Republicans voted 218 to 0; the Democratic vote was 93 to 41. A Senate resolution deploring the clemency passed five days later, 95 to 2.267

In his remaining hours in office, Clinton issued pardons to 140 people and commuted 36 prison sentences. Pardon Attorney Roger Adams said that many of the people on the list had not applied for pardons and that there was often no time to conduct record checks with the FBI. The lion’s share of attention fell on Clinton’s pardon of Marc Rich and Pincus Green, charged in 1983 with conducting the largest tax-evasion scheme in U.S. history. Rather than stand trial, they fled to Switzerland. Rich’s ex-wife, Denise Rich, met with President Clinton, contributed more than a million dollars to the Democratic Party over the years, and donated $450,000 to Clinton’s presidential library in Little Rock. Beth Dozoretz, a close friend of Denise Rich, met with Clinton and pledged to raise $1 million for the Clinton library.268

In a lengthy op-ed piece for the New York Times, Clinton defended his pardons of Rich and Green. He said the case for the pardons was reviewed and advocated not only by his former White House Counsel Jack Quinn but also by “three distinguished Republican attorneys: Leonard Garment, a former Nixon White House official; William Bradford Reynolds, a former high-ranking official in the Reagan Justice Department; and Lewis Libby, now Vice President Cheney’s chief of staff.”269 Within hours, Garment, Reynolds, and Libby denied (p. 95) Clinton’s account. At that point, Clinton’s office acknowledged that none of the three lawyers had reviewed the pardon applications for Rich and Green or lobbied for them.270 What did Clinton have in mind? That he could shift blame to Republicans?

A more recent firestorm about a pardon concerned the decision of President George W. Bush to commute the sentence of I. Lewis “Scooter” Libby, who had served as chief of staff to Vice President Dick Cheney. Libby was investigated by a special counsel for the leak of classified information regarding the decision to go to war against Iraq. Found guilty of obstruction of justice and perjury before a grand jury, he was sentenced to 30 months in prison, fined $250,000, and given two years’ probation. The district judge decided that Libby would have to begin serving his prison sentence while pursuing an appeal. Within a month after the sentence, Bush signed a grant of clemency for Libby, reducing the 30-month sentence to zero and leaving in place the fine and probation.271 Bush explained that the prison sentence was “excessive.”272

Public reaction to the commutation was critical for a number of reasons. Thirty months was within the range of sentences for obstruction of justice.273 If the sentence was “excessive,” why not reduce it to 20 months or 15 months, rather than zero? More fundamental, the Bush administration (as with past administrations) took a firm stand against any leaks of classified information, especially in the field of national security. Subordinate executive branch employees, including agency “whistleblowers,” could expect heavy sanctions for releasing confidential documents to the public. Libby, as chief counsel to the Vice President, had his sentence fully commuted. The commutation had some analogies to high-ranking officials in the Reagan administration involved in Iran-Contra. They received pardons from Bush I. Cheney’s effort to pressure Bush II to grant Libby a full pardon was unsuccessful.

9. Opinion Clause

Article II, section 2 provides that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” It is a curious provision. Had this language not been placed in the Constitution, surely a President would have the right to seek the opinion of the heads of each department. Why did the Framers include these words?

There is little in the Philadelphia debates, the Federalist Papers, or the ratification debates to guide us. On August 20, 1787, the following proposition was referred to the Committee of Five, which was designated to draft the final language: “Each Branch of the Legislature, as well as the supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.”274 The Supreme Court agreed to (p. 96) engage in “advisory opinions” for the first few years, but quickly discontinued them as inappropriate (Chapter 9, section 4).

In late July, the Committee of Detail offered this power for the President: “He shall have a Right to advise with the Heads of the different Departments as his Council.”275 On August 20, Gouverneur Morris and Charles Pinckney submitted a plan for a Council of State to assist the President. It would be composed of the heads of various executive departments and the Chief Justice of the Supreme Court, who would preside over the Council in the absence of the President. At any time the President could submit “any matter” to the Council for discussion and “may require the written opinions of any one or more of the members.” But the President “shall in all cases exercise his own judgment.”276

Not until September 4, toward the end of the convention, was language reported to add the following presidential power: “and may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” The language was accepted, with only New Hampshire voting no. The Opinion Clause was later adopted unanimously.277 This modest language about receiving the opinions of department heads was a substitute for a more ambitious idea of having a Council of State or an Executive Council advise the President. The Council proposal was voted down, 3 to 8.278

In Federalist No. 74, Hamilton regarded the constitutional language about the President seeking opinions from department heads as “a mere redundancy.” The Constitution, he said, clearly meant to include that authority as implied.279 Justice Jackson, in the Steel Seizure Case of 1952, challenged the Solicitor General’s claim that the Vesting Clause in Article II grants “all of the executive powers of which the Government is capable.” It that were true, Jackson said, “it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.”280 His footnote 9 cited the Opinion Clause.

At the North Carolina ratification convention in 1788, James Iredell regarded the Opinion Clause as, “in some degree, substituted for a council.” The President may consult with department heads only “if he thinks proper.” The requirement of offering their opinion in writing “will render them more cautious in giving them, and make them responsible should they give advice manifestly improper.”281 Iredell expressed concern that the council model, as drawn from Great Britain, could result in a lack of accountability, making it difficult “to know whether the President or counsellors were most to blame.” The Opinion Clause avoided that problem. The President “will personally have the credit of good, or the censure of bad measures; since, though he may ask advice, he is to use his own judgment in following or rejecting it.”282(p. 97)

The scope of the Opinion Clause was litigated in the late 1970s. President Carter had requested his Water Resources Council to prepare a report on future water resource policy matters. The Council began preparing the report without an Environmental Impact Statement (EIS), as required by law. North Dakota filed suit to enjoin the report’s transmission to Carter until completion of an EIS. The Justice Department argued that Carter’s access to the Council’s report was protected by the Opinion Clause. The case was resolved without reaching the constitutional issue.283

10. Take Care Clause

Article II, section 3 directs the President to “take Care that the Laws be faithfully executed.” On June 1, 1787, Madison moved that the national executive be empowered “to carry into execution the national laws.” His motion was agreed to.284 That language remained until August 6, when the Committee of Detail changed it to “he shall take care that the laws of the United States be duly and faithfully executed.”285 The Committee of Style preserved that language but deleted “duly and.”286 In Federalist No. 70, Hamilton emphasized the need for “energy in the Executive” to protect the community from foreign attacks and “the steady administration of the laws.” “A feeble Executive,” he said, “is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”287 Unlike some who read his language to justify independent presidential action in national security matters, Hamilton believed that a “vigorous Executive” was consistent with “the genius of republican government.”288

A. Scope of presidential control

Elements of the Take Care Clause were treated earlier in this chapter. Section 6 distinguished between “ministerial” (legal) and “discretionary” (political) powers. For ministerial duties, Congress by statute may vest certain responsibilities with subordinate officers in a department, such as making final judgment on individual claims. As Attorneys General have advised from the start, the President’s responsibility is not to personally carry out those laws, which would be impractical and in conflict with statutory directives. Rather, the President must see that (p. 98) the agency officer assigned the statutory duty carries out the law faithfully. If so, presidential interference and intervention are impermissible. Section 7 on the removal power covers similar issues. The President’s power to remove a departmental or agency official is at its highest level with executive duties. It is at its lowest with agency adjudication.

B. The “Unitary Executive” debate

In recent decades, scholars traded divergent views on the Take Care Clause. To some, the nature of government from the very beginning placed certain agency actions outside the direct control of the President. That was especially true with ministerial duties, agency adjudication, and the rise of independent agencies.289 Other scholars insisted on full presidential control of all execution of the laws. For them, the granting of the “executive power” to the President is exclusive and Congress may not create administrative units that are independent of presidential control.290

When these studies interpret the Philadelphia debates, the ratification conventions, and administrative practice over the last two centuries, they find little common ground. The unitary executive model, if reasonably applied, has a certain amount to commend it. The Framers experienced first-hand the administrative inefficiencies of the Continental Congress from 1774 to 1787 and were determined at the Philadelphia convention to create a national government better structured for accountability and efficiency. A single executive in the form of the President was seen as a key step toward improved management. When Congress created three executive departments in 1789, it expressed a similar commitment to accountability by placing authority in a single secretary, not in a multi-person board.

At the same time, the principle of a unitary executive contradicted other values. One is the exception Madison made during the “Decision of 1789” to have the Comptroller in the Treasury Department function in an independent manner because of the “judicial” nature of his duties. That precedent was later extended to cover other types of adjudicatory work performed by federal agencies, including decisions by administrative law judges and executive officials who handle various claims and benefits.

In their book, The Unitary Executive (2008), Steven Calabresi and Christopher Yoo make this claim: “[A]‌ll forty-three presidents, from George Washington to George W. Bush, have insisted on the view that the Constitution gives them the power to remove and direct subordinates as to law execution. All forty-three presidents have refused to acquiesce in repeated congressional efforts to sabotage the unitary executive bequeathed to us by the framers.”291 That claim reaches (p. 99) too far. Not only have Presidents “acquiesced” in statutory limits on their power to execute the law, Attorneys General regularly advised Presidents not to interfere in some agency decisions. As explained in Chapter 5, section 6, agencies often share administrative decisions with committees and subcommittees of Congress. Agency manuals specifically require budget officials to seek prior approval in certain instances from designated committees before shifting funds to new purposes.292

The Constitution does not empower the President to carry out the laws. That would impose an impossible assignment. It is the duty of the President to see that laws are faithfully carried out. The great bulk of that work is done by agency employees at various levels. Many remain legitimately outside the President’s direct control, provided they discharge their statutory tasks.293 A separate issue, discussed next, is whether the President may decline to carry out statutory provisions he regards as unconstitutional, even if he or a predecessor signed them into law or they became law over his veto.

C. Nonenforcement of the law

In a memo dated November 2, 1994, OLC analyzed the President’s constitutional authority to decline to execute what the administration considers to be an unconstitutional statute. It reasoned that the President is required to act in accordance with the laws, including the Constitution, “which takes precedence over other forms of law. This obligation is reflected in the Take Care Clause and the President’s oath of office.”294 The memo states that, “as a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue.” Why should a President surrender his independent constitutional judgment by anticipating how a court might decide? The memo continued: “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”295 In each case, according to OLC, the President should look to the court for guidance and reassurance.

The memo acknowledges that a dispute might not be litigated or that a court could refuse to take a case: “Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court.” In such a case, the President “must shoulder the responsibility of protecting the constitutional role of the presidency.”296 Why not shoulder that responsibility from the start, rather than attempting to predict how a court might or might not decide and whether it would even take the case?

The memo states that the “fact that a sitting President signed the statute in question does not change this analysis.”297 If a President determines that a bill presented to him is unconstitutional, (p. 100) or would likely be held unconstitutional by a court, why not veto the bill, publicly explain the constitutional defects, and have Congress correct it? Why sign what the executive branch regards as an unconstitutional bill? The memo does identify an option available to the President: sign what he considers to be an unconstitutional bill, but, in a signing statement, publicly identify the provision that is unconstitutional and offer reasons to support that judgment.298 Examples of these signing statement disputes are included in Chapter 5, section 5.

An earlier OLC memo, issued in 1980, concludes that the President in rare cases would be justified in not enforcing a statute. At the same time, it denies that the President possesses what was called in English constitutional history the “dispensing power”: the freedom of executives to dispense with and ignore certain laws.299 The memo concedes that there is no specific evidence that the Framers intended to give the President a constitutional privilege to disregard statutes deemed to be inconsistent with the Constitution.300 Yet in “rare cases the Executive’s duty to the constitutional system may require that a statute be challenged; and if that happens, executive action in defiance of the statute is authorized and lawful if the statute is unconstitutional.”301 The opinion closed with this statement: “Altogether, there have been very few occasions in our history when Presidents or Attorneys General have undertaken to defy, or to refuse to defend, an Act of Congress.”302

Acts of executive defiance became frequent during the administration of Richard Nixon, who repeatedly refused to spend appropriated funds, sometimes cutting programs in half or eliminating them entirely. A series of court rulings and the Impoundment Control Act of 1974 put an end to that practice (Chapter 6, section 6). Beginning in 1979, Congress directed the Attorney General to issue a report to both houses in any case in which the Attorney General refrained from enforcing a statutory provision because the Justice Department has determined “that such provision of law is not constitutional.” Also, the department must report to Congress when it decides to “contest, or will refrain from defending, any provision” of statutory law in any judicial or administrative proceedings because of constitutional objections.303 President Obama and Attorney General Holder complied with this statute in 2011 when reporting to Congress that the administration could no longer defend the Defense of Marriage Act (DOMA).304 The constitutionality of DOMA has been contested in a number of lower courts. On June 26, 2013, the Supreme Court in United States v. Windsor struck down a key part of DOMA and declared that gay couples married in states where it is legal must receive the same federal benefits (including tax, health, and Social Security) that heterosexual couples receive.(p. 101)

President Reagan provoked a lengthy court battle in 1984 when he signed the Competition in Contracting Act (CICA), which gave the General Accounting Office new powers to monitor contract disputes in executive agencies. Attorney General William French Smith and Office of Management and Budget (OMB) Director David Stockman instructed agencies not to comply with that part of the statute. A series of court rulings in the Third Circuit and the Ninth Circuit upheld the constitutionality of the statutory provision. The Ninth Circuit ruled that under Article I, section 7, the President “must either sign or veto a bill presented to him. Once signed by the President, as CICA was on July 18, 1984, the bill becomes part of the law of the land and the President must ‘take care that [it] be faithfully executed.’” Article I, section 7 “does not empower the President to revise a bill, either before or after signing. It does not empower the President to employ a so-called ‘line item veto’ and excise or sever provisions of a bill with which he disagrees.”305

A controversy in 2004 involved the Chief Actuary for the Centers for Medicare and Medicaid Services in the Department of Health and Human Services. By law, he was required to provide independent and professional cost estimates to Congress. With regard to a controversial prescription drug benefit bill, his estimates were substantially higher than those given to Congress by the administration. He was advised by his supervisor that if he provided his estimates to Congress he could be fired. That dispute is analyzed in Chapter 5, section 8C.

11. Executive orders and proclamations

To carry out the laws, executive agencies issue rules and regulations and Presidents rely on executive orders and proclamations. Although “making laws” is generally associated with Congress, studies also analyze the “ordinance making” and “decree making” authority of Presidents. Often these executive instruments are used to implement statutory policy; at times they represent purely presidential initiatives.306 Increasingly, Presidents have become involved in monitoring and controlling agency regulations. Congress has enacted a number of provisions to provide public notice of these forms of executive-branch lawmaking.

A. Statutory policy

By law, substantive agency policies are published in the Federal Register and the Code of Federal Regulations, not in internal agency manuals.307 Presidential executive orders and proclamations (p. 102) that have general applicability and legal effect are also published in the Federal Register. Based partly on statutory authority vested in him by the Federal Register Act of 1935, President Roosevelt issued an executive order in 1936 that gave the Bureau of the Budget (now the Office of Management and Budget) the responsibility for reviewing all proposed executive orders and proclamations.308

The Administrative Procedure Act (APA) of 1946 requires an opportunity for interested parties to submit comments on proposed rules and regulations during a period before their effective date. Judicial review is available. Courts may find unlawful any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “contrary to constitutional right, power, privilege, or immunity.”309 Although executive orders and proclamations are published in the Federal Register, their announcement is not expected to be preceded by formal notice, hearings, and opportunity for public comment. Draft copies are sometimes made available to Congress and the public for notice and comment, but such initiatives are voluntary on the part of the President.310

Case law in the early 1980s suggested that Congress may impose notice and comment requirements on presidential executive orders and proclamations that are issued to implement statutory policy, provided Congress does so explicitly.311 In 1982, a district court remarked that statutes enacted by Congress “are not subjected to notice and comment periods and no reason appears why the same should not be true for presidential proclamations.”312 This analogy ignores the explicit constitutional grant of legislative power to Congress and the checks that operate on that power, including bicameralism and the presidential veto. Those constraints do not operate on executive orders and proclamations.

No one knows how many executive orders have been issued. By August 6, 2013, the numbered series had reached 13,651. That total is understated. When some executive orders were discovered from prior decades, they had to be shoehorned into the existing series by using letters or fractions: e.g., Executive Order 106½ and Executive Order 103A. Estimates of the unnumbered executive orders range from 15,000 to 50,000.313 On August 9, 2013, President Obama issued Proclamation 9002. There is no clear distinction between executive orders and (p. 103) proclamations. Many proclamations are merely declaratory in effect, such as those issued to designate Earth Week, Law Day, National Farm Safety Week, and other issues of general interest. Some proclamations have substantive impact.

B. Presidential lawmaking

The first venture into unilateral presidential lawmaking occurred in 1793 when the Washington administration debated the merits of proclaiming America’s neutrality in the war between England and France. Would the proclamation encroach on the power of Congress to decide questions of war and peace? President Washington asked his Cabinet whether he should consult with Congress by calling it back in special session. They advised against it.314 Relying for authority on the “law of nations,” Washington warned Americans to avoid any involvement in the war and instructed law officers to prosecute all persons who violated his proclamation.315

Washington discovered that his foray into executive lawmaking contained a built-in check. Enforcement of his proclamation required the consent and cooperation of jurors. When Gideon Henfield was prosecuted for violating the proclamation, jurors refused to convict anyone simply on the basis of a proclamation. That might have sufficed in England, where kings could issue proclamations and have them nailed on trees, but not in republican America. The creation of U.S. criminal law, jurors insisted, required a statute passed by Congress. With no statute in hand, the administration dropped other prosecutions.316 At that point Washington sought the support of Congress. When it returned in December 1793, he told the two houses that it rested with “the wisdom of Congress to correct, improve, or enforce” the policy his proclamation had established.317 The Neutrality Act of 1794 gave the administration the firm legal footing it needed to prosecute violators.318 Washington’s proclamation sparked the public exchange between “Pacificus” (Alexander Hamilton) and “Helvidius” (James Madison) regarding the scope of independent presidential power (section 3A of this chapter).

Lincoln’s Emancipation Proclamation is often described as a purely presidential initiative in lawmaking, but he acted only after Congress had passed a number of supportive statutes. His proclamation progressed through three stages: the July 22, 1862 draft presented to the Cabinet, the revised proclamation of September 22, 1862, and the final, official version released on January 1, 1863.319 Congress had already passed two confiscation acts of August 6, 1861 and July 17, 1862, establishing national policy to seize all property (including slaves) of southern (p. 104) states that had taken up arms against the Union.320 On March 13, 1862, it prohibited military and naval officers from returning fugitive slaves to their masters.321 On April 10, 1862, it declared that the United States should cooperate with states willing to gradually abolish slavery by offering financial aid to compensate them.322 On April 16, 1862, it abolished slavery in the District of Columbia.323

Looking to more contemporary times, a number of executive orders and proclamations have proven to be costly for Presidents, private citizens, and the country’s reputation. During his first 15 months in office, President Roosevelt signed 674 executive orders as part of the administration’s effort to stimulate the economy. In its first year, the National Recovery Administration (NRA) approved hundreds of codes and released 2,998 administrative orders that approved or modified the codes. Almost 6,000 NRA press releases, some with legislative effect, were issued during this period.324 So many orders were issued that department officials were often unaware of their own regulations. At one point the government discovered that it had brought an indictment and taken an appeal to the Supreme Court without realizing that the portion of the regulation on which the proceeding was based had been eliminated by an executive order.325

Congress created the NRA to obtain from industrial and trade associations a variety of regulations designed to minimize competition, raise prices, and restrict production. If the President regarded the codes as unacceptable, he could prescribe his own and enforce them as law. The drafting of the NRA statute was dominated by industries and trade associations; executive officials appeared to have little interest in constitutional questions or procedural safeguards.326 In an early case, the Supreme Court struck down a section of the NRA statute governing controls on petroleum production because it failed to establish a “criterion to govern the President’s course.” The Court said that Congress “has declared no policy, has established no standard, has laid down no rule.”327 The rest of the NRA was invalidated that same year.328 These decisions also struck down the executive orders that Roosevelt had issued to implement the NRA. In 1935, the House Judiciary Committee condemned the “utter chaos” regarding the publication and distribution of administrative rules and pronouncements.329 The legislative result was a requirement (p. 105) that a Federal Register be created to publish all presidential and agency documents having the effect of law.330

In 1942, President Roosevelt issued Executive Order 9066, requiring the transfer of more than 110,000 Americans of Japanese descent (about two-thirds of them natural-born U.S. citizens) from their homes to “relocation centers.” Roosevelt acted in part on “the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy.”331 With no evidence of disloyalty or subversive activity, and without the benefit of any form of hearing, these individuals were imprisoned solely because of their ancestry and race. Congress enacted legislation ratifying the executive order and two Supreme Court decisions in 1943 and 1944 sustained both a curfew and detention against the Japanese Americans. The constitutional deficiencies of these policies are discussed in Chapter 9, section 8B.

In 1947, President Truman issued Executive Order 9835, requiring a loyalty investigation of every employee in the federal executive branch. There was no opportunity to confront and cross-examine secret accusers (Chapter 7, section 10). In 1952, Truman faced a nationwide strike of steelworkers, jeopardizing his ability to prosecute the war against North Korea. He reacted by issuing Executive Order 10340, directing the Secretary of Commerce to take possession of and operate the plants and facilities of major steel companies. Although Truman cited his authority as Commander in Chief, the Supreme Court struck down the executive order (Chapter 8, section 6).

Congress created the Subversive Activities Control Board (SACB) in 1950 to investigate communist activities.332 The board required the public registration of “communist-action” and “communist-front” organizations. A series of court decisions held that the registration feature violated the Fifth Amendment prohibition against self-incrimination.333 Facing extinction, the board gained a new lease on life in 1971 when President Nixon issued Executive Order 11605 to expand the board’s power and field of inquiry.334 Efforts were made to prohibit the use of any appropriated funds to implement the order.335 House and Senate conferees compromised by providing the board with $350,000 but expressly prohibited it from using any of those funds to carry out the executive order.336 Beginning with the fiscal 1974 budget, the administration did not even bother requesting funds for the SACB.

Many other executive orders and proclamations have been controversial because they involved unilateral presidential decisions concerning tariff duties, tariff surcharges, fees on imported oil, and other parts of the taxing power.337 A proclamation by President Clinton in 1996 illustrates how the President can independently accomplish what Congress was considering doing by legislation. Congress debated a bill to designate as wilderness 1.8 million acres owned by the federal government in Utah. The proposal cleared House and Senate committees but was (p. 106) not enacted. Clinton then issued Proclamation 6920 to establish the Grand Staircase-Escalante National Monument in Utah. Acting under the Antiquities Act of 1906, as amended, he set aside approximately 1.7 million acres.338 In response, legislation was introduced to provide that for any national monument in excess of 5,000 acres, the President would need an act of Congress and the concurrence of the governor and the state legislature. The House passed this legislation but the Senate did not.339 Congress can retaliate against executive orders and proclamations it finds objectionable, but moving remedial legislation through both chambers can be an uphill struggle.340

A current example of overreliance on executive orders, as though they present a surefire way to accomplish presidential policy, is the executive order issued by President Obama in January 2009 to close down the Guantánamo detention facility within a year.341 Because of inadequate political preparation by the administration, both to Congress and the public, the executive order proved feckless and the facility remained open. It has been reported that Obama “admitted that he had never devised a plan to persuade Congress to shut down the prison.”342 He seemed to have “a sense that if he sketches a vision, it will happen.”343 (Guantánamo is further discussed in Chapter 9, section 8C).

C. Presidential control over agency rulemaking

Over the last four decades, Presidents have tried to gain closer control over agency rulemaking, responding in part to objections that the federal government was issuing burdensome and unnecessary regulations. A major step came in 1981 with President Reagan’s Executive Order 12291, which required agencies to send a copy of each proposed rule to the Office of Information and Regulatory Affairs (OIRA) in OMB. Agencies had to prepare a cost-benefit analysis for each “major” rule (e.g., those with a $100 million impact on the economy).344 A series of executive orders have established White House policy over agency rules: Ford’s Executive Order 11821 in 1974, Carter’s Executive Order 12044 in 1978, Reagan’s Executive Order 12498 in 1985, Clinton’s (p. 107) Executive Order 12866 in 1993, Bush’s Executive Order 13422 in 2007, and Obama’s Executive Order 13563 in 2011.345

Some researchers objected that OMB review delayed and in some cases permanently blocked agency efforts to issue rules for their statutorily assigned programs. Cost-benefit analysis can be easily manipulated to artificially inflate costs and minimize benefits. What is presented as OMB oversight can equally serve as a “conduit” to promote the interests of private industry. These off-the-record ex parte contacts between agency and White House officials depart from APA’s model of public knowledge and participation. A natural tension exists between OMB review and the statutory values and purposes that Congress places in agency experts.346 An article published in 1997 acknowledged the increased role of the President in agency rulemaking but expressed concern that it pushed the activity too much from legal obligations to mere politics.347

A study by Elena Kagan in 2001 concluded that active presidential involvement need not be hostile to agency regulations. It may serve pro-regulatory objectives. Presidents who assert personal ownership of agency regulations can add transparency to the regulatory process. She admitted, however, that President Clinton’s control “did not show itself in all, or even all important, regulation; no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.”348 If Presidents and their staff can only select a few rules to monitor, what competence do they bring to that task? No doubt the regulatory process is political—whether within the agency or the White House—but how is public policy improved by having a President and his aides devote time trying to understand the details of a pending regulation?

Clinton seemed to appreciate that regulations calling for “significant levels of scientific expertise,” such as hazardous substances in the environment and workplace, were not appropriate for presidential intervention.349 With regard to environmental regulation, Kagan said that Clinton was reluctant to intervene “for fear” that his involvement would “appear excessively to politicize administrative action thought to rest on neutral competence.”350 Kagan also identified another area of agency activity that would be off-limits to the President: adjudication of individual rights and benefits.351 On the whole, however, she argued that any delegation of rulemaking authority to an agency is an implicit delegation to the President unless Congress specifically provides otherwise.(p. 108)

Kagan conceded that if an agency agreed to change a proposed regulation, it may have nothing to do with the President and White House aides possessing superior analytical and scientific skills. Other factors can come into play: “Agency officials may accede to his preferences because they feel a sense of personal loyalty and commitment to him; because they desire his assistance in budgetary, legislative, and appointments matters; or in extreme cases because they respect and fear his removal power.”352 Those reasons, while understandable, are unrelated to the statutory and legal duties assigned to agencies.

The Congressional Review Act (CRA) of 1996 established procedures to permit Congress to review and disapprove agency regulations. The statute offered Congress expedited procedures for passing a joint resolution of disapproval. Under CRA, before any final rule could take effect it had to be filed with each house of Congress and the General Accounting Office (now the Government Accountability Office).353 The sponsors of this legislation were concerned that Congress’s legislative functions were being increasingly exercised by agencies and the White House, but there has been little use of this statutory procedure. From April 1996 to September 2011, 57,897 rules were reported to Congress, including 1,029 major rules. A total of 72 resolutions of disapproval concerning 47 rules were introduced.354 Only one was enacted, affecting an ergonomics rule in 2001.355 Congress has been more effective in using its power of the purse against agency regulations. Congress can add language to appropriations bills that deny funds for a rule or place restrictions and conditions on it.356

12. Presidential commissions

Presidents have created commissions to study national problems. These commissions typically include individuals selected from outside the executive branch. During the Whiskey Rebellion in western Pennsylvania in 1794, President Washington created a commission in an effort to mediate an end to the insurrection. He selected Attorney General William Bradford, Pennsylvania Supreme Court Justice Jasper Yeates, and Senator James Ross. They were empowered to grant an amnesty to the rebels for all past criminal actions in return for assurances they would no longer obstruct the law. The commission made some progress, but Washington decided it was necessary to send in state militias to restore order.357(p. 109)

In 1842, President Tyler created a commission to study the New York Customs House. A House resolution asked him “under what authority,” “for what purposes and objects,” and “out of what fund” the commission functioned. Tyler said he created the commission under his constitutional authority to “take care” that the laws be faithfully executed, to give Congress “from time to time information on the state of the Union,” and to “recommend to their consideration such measures as he shall judge necessary and expedient.”358 Congress has at times denied public funds for these commissions, forcing the President to seek private contributions.

A. Congressional support

Many study committees and commissions have been established and funded by Congress to analyze government programs. The Cockrell Committee (1887–1889) exposed some of the reasons for huge backlogs in administrative work: time-consuming and duplicative routines, unnecessary recordkeeping, and the use of copyists who transcribed by hand rather than using typewriters and duplicating machines. The Cockrell-Dockery Commission (1893–1895) conducted investigations into agency operations, resulting in new accounting procedures for the Treasury Department.359 For much of the nineteenth century, Congress remained active in overseeing the operations of executive departments and agencies.360

By the turn of the century, students of public administration and activists from the progressive movement urged Presidents to devote more of their efforts to this oversight function.361 The federal civilian workforce had grown markedly since the Civil War and new agencies had been created. In accepting a leadership role, President Theodore Roosevelt appointed five federal officials in 1905 to serve on what was called the Keep Commission. He directed them to determine how the executive branch might more economically and effectively discharge its duties.362 Roosevelt developed a pattern of appointing volunteer, unpaid commissioners to study social and economic issues. To publish the findings of one of his commissions, he asked Congress to appropriate $25,000. Not only did Congress refuse but in 1909 it enacted a prohibition against the use of public funds to pay for the compensation or expenses of any commission, council, board, “or other similar body” unless authorized by law. Roosevelt protested that Congress had no right to pass such legislation and threatened to ignore the proscription, but he did not receive (p. 110) congressional funds. He had to seek the support of a private organization, which agreed to publish the study.363

In 1910, President Taft asked Congress to authorize an investigation into more efficient and economical ways of conducting the public business. Congress appropriated $100,000 to fund that project and Taft used the money to set up a five-member Commission on Economy and Efficiency.364 In June 1912, he submitted to Congress the commission’s proposal for a national budget. The President would be made responsible for reviewing departmental estimates and organizing them into a coherent document.365 On June 10, 1912, Taft directed departmental heads to prepare two sets of estimates: one for the fragmented “Book of Estimates” that had been submitted in the past, and the second for the national budget recommended by the commission.

Congress blocked his plans by passing legislation to require agencies to prepare estimates and submit them to Congress “only in the form and at the time now required by law, and in no other form and at no other time.”366 Taft regarded the form in which he transmitted recommendations to Congress as purely an executive matter. He proceeded with his plans to submit two budgets, but the model budget proposed by the commission was almost completely ignored by Congress. After leaving office, Taft lamented that dust was accumulating on the commission’s report.367 Taft’s leadership, however, prepared the way for congressional action that culminated in the Budget and Accounting Act of 1921, a significant milestone in fixing budgetary responsibilities on the President (Chapter 6, section 5).

B. Presidential reorganization

Private commissions have contributed to the institutional strengthening of the President’s office. In 1936, President Franklin D. Roosevelt named three public administration scholars—Louis Brownlow, Charles E. Merriam, and Luther Gulick—to form the President’s Committee on Administrative Management. They were supported by a research director and a staff of 26. Roosevelt planned to use emergency funds to support the committee, but Comptroller General J. Raymond McCarl regarded that as an illegal use of appropriated funds, forcing Roosevelt to seek $100,000 from Congress. The appropriation came with a restriction: to identify agency activities that overlapped with other agencies and to recommend that the duplication be abolished and personnel reduced. The administration objected to the condition, but it was enacted.368 The Senate and the House had taken their own initiatives to study executive reorganization. As a result, the Brownlow Committee agreed to part with $10,000 of its appropriation to support the congressional study.369(p. 111)

The committee based its findings on the premise that “managerial direction and control of all departments and agencies of the Executive Branch...should be centered in the President.” Its recommendations and studies eventually led to the creation of an Executive Office of the President (EOP) to house federal agencies immediately serving the President. It began with such units as the White House Office, the National Resources Planning Board, and the Central Statistical Board. Agencies added later included the Bureau of the Budget, Council of Economic Advisers, the National Security Council, and other organizations responsible to the President.370 The committee also recommended the appointment of six presidential assistants who would have a “passion for anonymity.”371

These proposals encountered strong opposition from Congress in part because they coincided with Roosevelt’s court-packing plan (Chapter 9, section 7). The combination of these executive initiatives signaled too much of an effort to aggrandize presidential power. Legislative action had to await 1939, when Congress gave Roosevelt limited reorganization powers and the six assistants. Roosevelt used the reorganization authority to create the EOP and to move the Bureau of the Budget from the Treasury Department to the EOP.

World War II created a huge national debt and the need for managerial competence within the executive branch. In 1947, Congress created a 12-member Commission on Organization of the Executive Branch of the Government to promote economy, efficiency, and improved service by federal agencies. It authorized the President to appoint four commissioners, two from the executive branch and two from private life. The same ratio existed for the four commissioners appointed by the President pro tempore of the Senate and the House Speaker: two from the Senate, two from the House, and two each by the Senate and the House from private life.372 House Speaker Joseph Martin made the most important appointment: former President Herbert Hoover. In accordance with the statute, the commission elected a chairman. It selected Hoover. Republican leaders hoped the commission would push back against New Deal programs and the size of the White House staff, but Hoover generally supported a strengthened presidential office and additional White House staff.373 A second Hoover Commission, with reports issued in 1955, also sought ways to augment presidential control of the executive branch.374

Subsequent administrations pursued a number of managerial reforms, with promises and goals generally exceeding accomplishments. The idea of a President actually managing the executive branch, in the sense of being personally involved, is wholly impractical.375 At best the President might attempt to manage through White House aides, but such efforts defeat the constitutional principle of a single executive and confirmed agency officials. Moreover, even operating through surrogates the President can only target a few agency programs. There are too many other pressing obligations.(p. 112)

C. Pearl Harbor and Kennedy’s assassination

Presidential commissions that include Supreme Court Justices have received substantial criticism. In December 1941, President Roosevelt named Justice Owen Roberts to chair a commission to investigate the Japanese attack on Pearl Harbor. Although Roberts had prior experience as a prosecutor, he was uncertain about the steps needed for a credible investigation. Several generals had to insist that he put witnesses under oath and have their remarks transcribed to create a record.376 Also, the commission focused on whether Army or Navy leaders at Pearl Harbor were at fault for being insufficiently unprepared for an attack. Errors of judgment and performance by high civilian officials in Washington, D.C., were not pursued. The commission condemned Admiral Husband E. Kimmel and General Walter C. Short, the top military officers at Pearl Harbor, for dereliction of duty.377 The investigation took little more than a month. The executive order creating the commission is dated December 18; Justice Roberts handed the report to President Roosevelt on January 23.378 Other critiques have been directed at the commission, including ex parte contacts between commission members and top officials in Washington, D.C.379

The adequacy of the Roberts investigation remained in dispute. In addition to poor performances by Kimmel and Short, were errors committed by civilian officials in the Roosevelt administration? Legislation enacted by Congress on June 13, 1944 ordered separate investigations by the War and Navy Departments.380 Those reports called into question the findings of the Roberts Commission, especially in the allocation of blame. A joint congressional committee conducted hearings from November 1945 to May 1946, uncovering additional errors of judgment by officials in Washington.381

Carl Marcy, author of an early study on presidential commissions, offered a harsh appraisal of congressional efforts to investigate national problems. He said congressional committees “are not reliable fact-finders” and referred to the “general ineffectiveness” of congressional committees in finding facts.382 A “political body” like Congress “cannot hope to find the real facts.”383 But when he turned his attention to the Roberts Commission, he found no deficiencies at all.384

Also subject to criticism is the commission created by President Johnson in November 1963 to investigate the assassination of President Kennedy. Johnson, concerned about reports that linked the killing to other countries, including Cuba and Russia, decided a national commission was essential. It could not be, he said, “an agency of the Executive branch. The commission (p. 113) had to be composed of men who were known to be beyond pressure and above suspicion.” He wanted a “Republican chairman whose judicial ability and fairness were unquestioned.” The choice: Chief Justice Earl Warren, even though Johnson knew “it was not a good precedent to involve the Supreme Court in such an investigation.” Warren reached the same conclusion and “was vigorously opposed to it.” He objected “on constitutional grounds.”385

When Warren arrived at the White House, Johnson insisted that when the country “is confronted with threatening divisions and suspicions” and “its foundation is being rocked, and the President of the United States says that you are the only man who can handle the matter, you won’t say ‘no,’ will you?” He recalled that Warren “swallowed hard and said, ‘No, sir.’”386 Johnson told Warren that given the rumors circulating around the world, a result might be war, including nuclear war, with a first strike against the United States leading to “the loss of forty million people.”387 Given his duties on the Court, Warren could not possibly participate as an active member of the commission in the investigation or even provide close supervision. His function was to provide prestige and credibility to the commission’s efforts. Warren later gave three excellent reasons why federal judges should not serve on this type of presidential commission.388

Hundreds of books on the Kennedy assassination offer conflicting claims that the case is “closed” or still “open.”389 Edward Jay Epstein, a graduate student at Cornell University, offered an early evaluation. His major focus was not on the assassination but rather on the professional quality of the Warren Commission report. He found that all five senior lawyers on the commission returned to their private practice and made no contribution to the writing of the final report.390 The members who served on the commission—Senators, Representatives, high executive officials—were “almost invariably men occupied by other important responsibilities.”391

What was the commission’s principal assignment? To objectively and independently assess evidence? Or to dismiss “assassination rumors” about the possible roles of Cuba and Russia? If the latter, as Johnson’s claim of 40 million potential U.S. casualties indicated, leads might have to be ignored or discredited no matter the weight of evidence.392 When Chief Justice Warren’s book was published, an editor said that Norman Redlich, an attorney on the commission, claimed that Epstein had “grossly falsified” information that Redlich provided him and refuted “key parts” (p. 114) of Epstein’s book. However, the editor provided no details to substantiate or explain Redlich’s objections.393

David Belin, one of the attorneys on the commission, agreed with the report’s main conclusion that Lee Harvey Oswald was the sole assassin of Kennedy. Yet Belin identified a number of mistakes committed in the course of the investigation: an “overzealous” top-secret designation of investigative material and the exclusion of vital evidence, including photographs and X-rays taken during the autopsy of Kennedy. Belin says the investigation was hampered by inaccurate reports from a number of agencies: the FBI, the Secret Service, the Dallas Police Department, and the Dallas Sheriff’s Office.394

Some presidential commissions are intended to prevent or limit independent congressional inquiries. In December 1974, newspaper reports revealed a number of illegal CIA operations, including domestic spying and attempts to assassinate foreign leaders. President Ford decided to create the Rockefeller Commission to investigate these agency activities and make recommendations. Of the eight commissioners, one was Governor Ronald Reagan, who was able to attend only 10 of the 26 meetings.395 Notwithstanding Ford’s intent, both houses of Congress conducted their own investigations of CIA illegalities. Recent studies have analyzed the effectiveness of other commissions in the field of national security.396

The success of presidential commissions depends on their stated purpose. Is the inquiry well defined? Is the objective likely to be attained, particularly within the four years (or less) of a President’s term? Who serves on the commission? Competent, experienced individuals who have the time to devote to a lengthy, complex study? Busy public officials and private citizens who can, at most, lend their prestigious names? Is the commission so weighted with special interests that its report will lack credibility and usefulness?397

This chapter has focused on powers exercised mainly or exclusively by the President: removals, pardons, the Opinion Clause, the Take Care Clause, executive orders and proclamations, and presidential commissions. The next chapter turns to powers that regularly involve Congress, including appointments, delegated power, and the creation of independent agencies. Jointly held powers are also analyzed in Chapter 5, which is devoted to vetoes and access to information.


1. 17 U.S. (4 Wheat.) 316, 404 (1819).

2. Saikrishna Prakash, Regulating Presidential Powers, 91 Cornell L. Rev. 215, 241 (2005).

3. 17 U.S. (4 Wheat.) at 404.

4. Id.

5. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const., art. I, sec. 8, cl. 18.

6. 17 U.S. (4 Wheat.) at 421.

7. The Federalist 322.

8. Merrill Jensen, The Articles of Confederation 263 (1961 ed.) (Article 2).

9. 1 Annals of Cong. 761 (Aug. 18, 1789).

10. A summary of the congressional argument on the President’s removal power appears in Louis Fisher, Constitutional Conflicts Between Congress and the President 48–52 (5th ed., 2007).

11. 20 Journals of the Continental Congress 519, 530–31, 545–48 (Hunt ed., 1912).

12. 2 Farrand 615.

13. Id. at 615–16.

14. 2 Annals of Cong. 1945–52 (1791).

15. Id. at 1960 (remarks of Rep. Sedgwick).

16. Id. at 2012.

17. Walter Dellinger & H. Jefferson Powell, The Constitutionality of the Bank Bill: The Attorney General’s First Constitutional Law Opinions, 44 Duke L. J. 110 (1994).

18. 19 The Papers of Thomas Jefferson 280 (Boyd, ed., 1974). For Randolph’s evaluation, see 31 The Writings of George Washington 215–16 (Fitzpatrick, ed., 1939).

19. 8 The Papers of Alexander Hamilton 107 (Syrett, ed., 1965). For documents on the U.S. Bank: 1 Goldsmith 193–229.

20. McCulloch v. Maryland, 17 U.S. (4 Wheat.) at 421.

21. Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 225 (1821).

22. Id. at 225–26.

23. Id. at 228. For the implied power of federal courts to hold individuals in contempt, see Michaelson v. United States, 266 U.S. 42 (1924).

24. Inland Waterways Corp. v. Young, 309 U.S. 517, 525 (1940); United States v. Midwest Oil Co., 236 U.S. 459, 475 (1915); Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 Boston U. L. Rev. 109 (1984).

25. United States v. Lopez, 514 U.S. 549, 552 (1995).

26. Boerne v. Flores, 521 U.S. 507, 516 (1997).

27. National Federation of Independent Business v. Sebelius, 567 U.S. ___, ___ (2012).

28. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992).

29. A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994); Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377 (1994); Kevin H. Rhodes, A Structure Without Foundation, 88 Nw. U. L. Rev. 1406 (1994); and A. Michael Froomkin, Still Naked After All These Words, 88 Nw. U. L. Rev. 1420 (1994).

30. Calabresi, supra note 29, at 1379.

31. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231, 234–36, 253–57, 265–72 (2001).

32. Michael D. Ramsey, The Myth of Extraconstitutional Foreign Affairs Power, 42 Wm. & Mary L. Rev. 379, 442 (2001).

33. Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545, 592 (2004).

34. Robert J. Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259 (2009).

35. H. Doc. No. 534 (Part I), 82d Cong., 2d Sess. 382–83 (1952).

36. 4 The Works of Alexander Hamilton 437 (Lodge, ed., 1904).

37. Id. at 438.

38. Id. at 438–39.

39. 6 The Writings of James Madison 150 (Hunt ed., 1900–10) (emphasis in original).

40. Id. at 150–51 (Madison added this emphasis and the bracketed words).

41. Id. at 152.

42. Theodore Roosevelt: An Autobiography 389 (1919).

43. Id.

44. Harold J. Krent, Presidential Powers 36–48, 173–87 (2005).

45. Roosevelt, supra note 42, at 389.

46. Lewis L. Gould, The Presidency of Theodore Roosevelt 300 (1991) (“Roosevelt accepted the constraints of legality and precedent as necessary conditions of political life during his presidency.”).

47. Roosevelt, supra note 42, at 395.

48. Buchanan took a number of initiatives in foreign policy and in dispatching U.S. troops abroad to protect American interests; Elbert B. Smith, The Presidency of James Buchanan 68–71 (1975).

49. Roosevelt, supra note 42, at 395.

50. Henry F. Pringle, Theodore Roosevelt: A Biography 392 (1955).

51. William Howard Taft, Our Chief Magistrate and His Powers 144 (1925, originally published in 1916).

52. H. Doc. No. 534 (Part I), 82d Cong., 2d Sess. 384 (1952).

53. Youngstown Co. v. Sawyer, 103 F. Supp. 569, 575–76 (D.D.C. 1952).

54. Taft, supra note 51, at 139–40 (emphasis added).

55. Id. at 147.

56. Id. at 135.

57. Id. at 156.

58. Memorandum opinion from John C. Yoo, Deputy Assistant Attorney General, to Timothy Flanagan, Deputy Counsel to the President, Sept. 25, 2001, at 4; http://www.usdoj.gov/olc/warpowers925.htm.

59. Id.

60. Id.

61. Id.

62. Regarding Yoo’s analysis of Hamilton, see David Gray Adler, Presidential Power and Foreign Affairs in the Bush Administration: The Use and Abuse of Alexander Hamilton, 41 Pres. Stud. Q. 531 (2010), and Louis Fisher, John Yoo and the Republic, 41 Pres. Stud. Q. 177 (2011).

63. Morton Rosenberg, When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry (2009).

64. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush 55 (2008) (emphasis in original).

65. Id. (emphasis added by Calabresi and Yoo).

66. S. 1319, 111th Cong., 1st Sess. (2009), sec. 2 (§ 102a).

67. 157 Cong. Rec. H681 (daily ed., Feb. 10, 2011). Clause 1 provides: “The Congress shall have Power to lay and collect Taxes, Duties, Impost and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” Clause 3 provides: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

68. Id. Section 8 consists of 18 clauses, covering domestic and military powers and ending with the Necessary and Proper Clause. See Kenneth R. Thomas, Sources of Constitutional Authority and House Rule XII, Clause 7(c), CRS Report R41548, Jan. 18, 2011.

69. 155 Cong. Rec. S9548 (daily ed., Sept. 17, 2009).

70. Id.

71. Id.

72. Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale L.J. 140, 210 (2009).

73. Id. at 210–11.

74. Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 Yale L.J. 2280, 2282 (2006).

75. Id. at 2283.

76. Id. at 2302, 2308.

77. Id. at 2309.

78. Id. at 2284.

79. Yoo, supra note 58, at 4.

80. Calabresi & Yoo, supra note 64, at 20, 430. In The President’s Completion Power, 115 Yale L.J. 2280, 2282 (2006), Jack Goldsmith and John F. Manning state: “each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it.” More precisely: Each of the three branches has certain implied powers.

81. Black’s Law Dictionary 703 (5th ed., 1979).

82. Yoo, supra note 58, at 4.

83. Id. at 2.

84. Id. at 3.

85. Id. at 5.

86. Id. at 16.

87. Merriam-Webster’s Collegiate Dictionary 614 (10th ed., 1965).

88. Louis Fisher, The Unitary Executive and Inherent Executive Power, 12 U. Pa. J. Const. L. 569, 586–90 (2010); Louis Fisher, Invoking Inherent Powers: A Primer, 37 Pres. Stud. Q. 1 (2007).

89. Madison, supra note 41.

90. 5 Op. Att’y Gen. 287, 288 (1851).

91. Homer E. Socolofsky & Allan N. Spetter, The Presidency of Benjamin Harrison 186–87 (1987); Harry J. Sievers, Benjamin Harrison: Hoosier President 93–101 (1968).

92. In re Neagle, 135 U.S. 1, 27 (1890).

93. Id. at 59.

94. Id. at 77–78 (Lamar, J. and Fuller, C.J., dissenting).

95. Id. at 80–81, 83, 99.

96. In re Debs, 158 U.S. 564, 577 (1895).

97. Id. at 578.

98. Id.

99. Id. at 578–79.

100. Id. at 579–80.

101. Id. at 581–82.

102. Id. at 582.

103. Keith W. Olson, Watergate: The Presidential Scandal That Shook America 16 (2003).

104. James Bamford, Body of Secrets: Anatomy of the Ultra-Secret National Security Agency 430 (2002).

105. Id. at 431–39.

106. United States v. Sinclair, 321 F. Supp. 1074, 1077 (E.D. Mich. 1971).

107. United States v. United States Dist. Ct. for E.D. of Mich., 444 F.2d 651, 658 (6th Cir. 1971).

108. United States v. United States District Court, 407 U.S. 297 (1972).

109. Id. at 301.

110. Id. at 317.

111. 92 Stat. 1788 (1978).

112. Electronic Surveillance Within the United States for Foreign Intelligence Purposes, hearings before the Subcommittee on Intelligence and the Rights of Americans of the Senate Committee on Intelligence, 94th Cong., 2d Sess. 76 (1976).

113. 92 Stat. 1788, 1797, sec. 201(f) (1978).

114. John Locke, Second Treatise of Civil Government § 160 (1690). See Thomas S. Langston & Michael E. Lind, John Locke & the Limits of Presidential Prerogative, 24 Polity 49 (1991); Larry Arnhart, “The God-Like Prince”: John Locke Executive Prerogative, and the American Presidency, 9 Pres. Stud. Q. 121 (1979).

115. William Blackstone, Commentaries on the Laws of England 232 (1765). Also on the prerogative: Richard M. Pious, Franklin D. Roosevelt and the Destroyer Deal: Normalizing Prerogative Power, 42 Pres. Stud. Q. 190 (2012); George Thomas, As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government, 30 Pres. Stud. Q. 534 (2000); Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. Law Rev. 1 (1993); Robert Scigliano, The President’s “Prerogative Power,” in Inventing the American Presidency, at 236–56 (Thomas E. Cronin, ed., 1989); Robert L. Borosage, Para-Legal Authority and Its Perils, 40 Law & Contemp. Prob. 166 (1976); James R. Hurtgen, The Case for Presidential Prerogative, 7 U. Toledo L. Rev. 59 (1975); Lucius Wilmerding, The President and the Law, 67 Pol. Sci. Q. 321 (1952).

116. 2 Farrand 318.

117. Alexander DeConde, This Affair of Louisiana (1976); Marshall Sprague, So Vast So Beautiful a Land: Louisiana and the Purchase (1974). Also: Richard J. Daugherty, Thomas Jefferson and the Rule of Law: Executive Power and American Constitutionalism, 28 N. Ky. L. Rev. 513 (2001); Barry J. Balleck, When the Ends Justify the Means: Thomas Jefferson and the Louisiana Purchase, 22 Pres. Stud. Q. 679 (1992); and Eberhard P. Deutsch, The Constitutional Controversy Over the Louisiana Purchase, 53 Am. Bar Ass’n J. 50 (1967).

118. 10 The Writings of Thomas Jefferson 410–11 (Bergh ed., 1903); letter from Jefferson to John Breckinridge, Aug. 12, 1803.

119. Id. at 418; letter from Jefferson to Wilson C. Nicholas, Sept. 7, 1803.

120. Id. at 417; letter dated Aug. 30, 1803 (emphasis in original). For documents on Louisiana Purchase:1 Goldsmith 438–50.

121. 1 Richardson 377.

122. Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins, at 172–73 (1976).

123. 5 The Writings of Thomas Jefferson 542 (Washington ed., 1861).

124. Id.

125. Id. (emphasis in original).

126. Id. at 544.

127. Id. See Jeremy David Bailey, Executive Prerogative and the “Good Officer” in Thomas Jefferson’s Letter to John B. Colvin, 34 Pres. Stud. Q. 732 (2004).

128. Gary J. Schmitt, Thomas Jefferson and the Presidency, Inventing the American Presidency, 326–46 (Thomas E. Cronin, ed., 1989); Caleb Perry Patterson, The Constitutional Principles of Thomas Jefferson (1953).

129. Michael Nelson, ed., The Evolving Presidency: Landmark Documents, 1787–2010, at 75–79 (4th ed., 2010).

130. 14 Richardson 6923.

131. Louis Fisher, Presidential War Power 57–60 (3d ed., 2013).

132. Id. at 58–62, 124–26, 161–63, 165–68, 178–81, 280–82.

133. Mitchel A. Sollenberger & Mark J. Rozell, The President’s Czars: Undermining Congress and the Constitution 170–72 (2012).

135. 3 U.S.C. § 105; 92 Stat. 2445 (1978).

136. Supra note 134.

137. Marbury v. Madison, 5 U.S. (1 Cr.) 137, 157 (1803).

138. Id.

139. Id. at 165.

140. Id.

141. Id.

142. Id. at 165–66.

143. 1 Op. Att’y Gen. 624, 625 (1823).

144. Id.

145. Id. at 624.

146. Id. at 627.

147. Id. at 628.

148. Id. at 629.

149. 1 Op. Att’y Gen. 636 (1824).

150. 1 Op. Att’y Gen. 678, 680 (1824).

151. Id. at 681.

152. 1 Op. Att’y Gen. 705, 706 (1825).

153. 2 Op. Att’y Gen. 480, 482 (1831). For similar opinions by Taney, see 2 Op. Att’y Gen. 507 (1832); 2 Op. Att’y Gen. 544 (1832).

154. 4 Op. Att’y Gen. 515, 516 (1846).

155. Id.

156. Id. at 518.

157. 5 Decisions of the First Comproller in the Department of the Treasury of the United States 412, 413 (1884) (by William Lawrence) (emphasis in original).

158. 6 Op. Att’y Gen. 326, 341 (1854).

159. 10 Op. Att’y Gen. 526 (1863); 10 Op. Att’y Gen. 527 (1863); 11 Op. Att’y Gen. 14 (1864); 13 Op. Att’y Gen. 28 (1869); 18 Op. Att’y Gen. 31 (1884); 19 Op. Att’y Gen. 685 (1890).

160. Kendall v. United States, 12 Pet. (37 U.S.) 524, 528 (1838).

161. Id. at 530.

162. Id. at 531.

163. Id. at 531–35, 609.

164. Id. at 535

165. Id.

166. Id. at 546–47.

167. Id. at 566.

168. Id. at 600.

169. Id. at 610.

170. Id.

171. Id. at 611.

172. Id. at 613.

173. Id. at 627–41 (Taney, C.J., dissenting).

174. Id. at 641–53 (Barbour, J., dissenting).

175. Id. at 653 (Catron, J., dissenting).

176. Decatur v. Paulding, 14 Pet. (39 U.S.) 497 (1840).

177. E.g., Justice Catron, at 519. See also Reeside v. Walker, 11 How. (52 U.S.) 272 (1850).

178. Leonard D. White, The Jacksonians: A Study in Administrative History, 1829–1861, at 278 (1954). White says “about $12,000” but the Supreme Court put the amount at $11,000; Kendall v. Stokes, 3 How. (44 U.S.) 87, 89 (1845).

179. Kendall v. Stokes, 3 How. at 98.

180. Id. at 98–99.

181. Id. at 100.

182. Id.

183. Id. at 101.

184. Id. at 103.

185. Id. at 792 (McLean, J., dissenting).

186. Id.

187. Id. at 793.

188. 9 Stat. 657 (1846).

189. United States v. Schurz, 102 U.S. 378, 379–80 (1880).

190. Id. at 392–95.

191. Id. at 395–96.

192. Id. at 397.

193. Id. at 402.

194. Id. at 403.

195. Id. at 405–07.

196. Butterworth v. Hoe, 112 U.S. 50, 55 (1884).

197. Id. at 56–57.

198. Id. at 67.

199. Id. at 68–69.

200. United States v. Price, 116 U.S. 43 (1885).

201. United States v. Louisville, 169 U.S. 249 (1898).

202. Clackamas County, Ore. v. McCay, 219 F.2d 479 (D.C. Cir. 1954), vacated as moot, 349 U.S. 909 (1955).

203. Berends v. Butz, 357 F. Supp. 143 (D. Minn. 1973); Train v. City of New York, 420 U.S. 35 (1975).

204. National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974).

205. John Yoo, An Executive Without Much Privilege, N.Y. Times, May 26, 2010, at A23.

206. Saikrishna Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

207. 1 Annals of Cong. 371 (1789).

208. Id. at 371–72.

209. Id. at 373–74, 381–82.

210. The House debate appears in 1 Annals of Cong. 368–83 (May 19), 384–96 (May 20), 396 (May 21), 455–79 (June 16), 479–512 (June 17), 512–52 (June 18), 552–77 (June 19), 578–85 (June 22), 590–91 (June 24), 592–607 (June 25), 611–14 (June 27), 614–15 (June 30), and 615 (July 1). Senate debate was substantial. For a summary of the leading arguments and the votes taken, see Louis Fisher, Constitutional Conflict Between Congress and the President 48–53 (5th ed. 2007). For documents on removal power: 1 Goldsmith 178–92, 2 Goldsmith 1018–1124.

211. 1 Journal of the First Session of the Senate 51 (1820) (action on Aug. 4, 1789). Adams broke another tie vote on the issue of the removal power; id. at 50, 62–63.

212. 1 Stat. 29, 50, 67 (1789).

213. 1 Annals of Cong. 611–12 (June 27, 1789).

214. 8 Richardson 3690–94 (March 2, 1867); 14 Stat. 430 (1867).

215. Raoul Berger, Impeachment 252–96 (1973); Lately Thomas, The First President Johnson 484–618 (1968); Harold M. Hyman, Johnson, Stanton, and Grant: A Reconsideration of the Army’s Role in the Events Leading to Impeachment, 66 Am. Hist. Rev. 85 (1960).

216. 9 Richardson 3992 (Dec. 6, 1869); 16 Stat. 6 (1869).

217. 17 Stat. 284, sec. 2 (1872); 19 Stat. 80, sec. 6 (1876).

218. 10 Richardson 4960–68 (March 1, 1886); 16 Stat. 7, sec. 2 (1869); 24 Stat. 500 (1887). This incident is described in detail in Grover Cleveland, Presidential Problems 19–76 (1904), and Louis Fisher, Grover Cleveland Against the Senate, 7 Cong. Stud. 11 (1979).

219. Ex parte Hennen, 13 Pet. (38 U.S.) 230 (1839).

220. 5 Op. Att’y Gen. 288, 291 (1851).

221. Id. at 289.

222. Id. at 289–90.

223. United States v. Guthrie, 17 How. (58 U.S.) 284, 304 (1854).

224. Id. at 310. For a decision upholding the right of the President to suspend a territorial judge and replace him with someone else before the completion of his term of office, see McAllister v. United States, 141 U.S. 175 (1891). In 1897, the Court unanimously concluded that President Cleveland could legitimately remove a U.S attorney “when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office.” Parsons v. United States, 167 U.S. 324, 343 (1897).

225. United States v. Perkins, 116 U.S. 483 (1886).

226. Shurtleff v. United States, 189 U.S. 311, 316 (1903).

227. Blake v. United States, 103 U.S. (13 Otto.) 227 (1881), Reagan v. United States, 182 U.S. 491 (1901), Bernap v. United States, 252 U.S. 512 (1920). A 1922 case focused on President Wilson’s dismissal of an officer from the Quartermaster Corps and concluded that the legislative restrictions imposed on the President’s power to remove an Army officer did not apply. Wallace v. United States, 257 U.S. 541, 545–46 (1922).

228. Myers v. United States, 272 U.S. 52, 61, 98 (1926).

229. Wallace v. United States, 257 U.S. 541, 544 (1922) (emphasis added).

230. Myers v. United States, 272 U.S. at 114.

231. Id. at 135.

232. Id.

233. Id. at 177 (Holmes, J., dissenting)

234. Id. at 178–239 (McReynolds, J., dissenting)

235. Id. at 247 (Brandeis, J, dissenting).

236. Id.

237. Edward S. Corwin, The President’s Removal Power Under the Constitution vi (1927).

238. Corwin’s study was reproduced with little change as Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353 (1927).

239. William E. Leuchtenburg, The Case of the Contentious Commissioner: Humphrey’s Executor v. U.S., Freedom and Reform: Essays in Honor of Henry Steel Commager 289 (Harold M. Hyman & Leonard W. Levy, eds., 1967).

240. Humphrey’s Executor v. United States, 295 U.S. 602, 624, 627–28 (1935).

241. Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940), cert. denied, 312 U.S. 701 (1941). For background on Morgan’s removal, see C. Herman Pritchett, The Tennessee Valley Authority 203–15 (1943). A transcript of White House hearings, conducted by President Roosevelt in the presence of Chairman Morgan and the other two directors of the TVA, is reprinted in S. Doc. No. 155, 75th Cong., 3d Sess. (1938). Acting Attorney General Robert H. Jackson had advised FDR that the TVA was an executive agency and its members could be removed by the President; 39 Op. Att’y Gen. 145 (1938).

242. Wiener v. United States, 357 U.S. 349, 355 (1958).

243. Rankin v. McPherson, 483 U.S. 378 (1987).

244. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976).

245. Fisher, supra note 210, at 74–78.

246. Id. at 78–79.

247. Id. at 79–83; Louis Fisher, Congress and the Removal Power, in Divided Democracy: Cooperation and Conflict Between the President and Congress 255–74 (James A. Thurber, ed., 1991).

248. 2 Farrand 426.

249. Id. at 626–27.

250. The Federalist 473.

251. Id. at 475.

252. Harold J. Krent, Presidential Powers 189–214 (2005).

253. The Laura, 114 U.S. 411 (1885); 8 Op. Att’y Gen. 281, 282 (1857).

254. Ex parte Garland, 71 U.S. 333, 380 (1867). See 12 Stat. 502 (1862) and 13 Stat. 424 (1865).

255. United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). See Louis Fisher, United States v. Klein: Judging Its Clarity and Application, 5 J. Nat’l Security L. & Pol’y 237 (2011).

256. Krent, supra note 252, at 194–97.

257. Judicial Watch, Inc. v. United States DOJ, 259 F. Supp. 2d 86 (D.D.C. 2003).

258. Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004).

259. Jeffrey Crouch, The Presidential Pardon Power 21–22 (2009). For other analyses of the pardon power, see Jeffrey Crouch, Presidential Misuse of the Pardon Power, 38 Pres. Stud. Q. 722 (2008); Margaret Colgate Love, Of Pardons, Politics, and Collar Buttons: Reflections on the President’s Duty to be Merciful, 27 Fordham Urban L.J. 1483 (2000); Brian C. Kalt, Pardon Me? The Constitutional Case Against Presidential Self-Pardons, 106 Yale L.J. 779 (1996); Mark J. Rozell, President Ford’s Pardon of Richard M. Nixon: Constitutional and Political Considerations, 24 Pres. Stud. Q. 121 (1994); Peter M. Shane, Presidents, Pardons, and Prosecutors: Legal Accountability and the Separation of Powers, 11 Yale L. & Policy R. 361 (1993); David Gray Adler, The President’s Pardon Power, Inventing the American Presidency 209–35 (Thomas E. Cronin, ed., 1989); William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475 (1977). An insightful analysis of the Pardon Office appeared in the Washington Post: Dafna Linzer & Jennifer LaFleur, A Racial Gap for Criminal Seeking Mercy, Dec. 4, 2011, at A1, and Dafna Linzer, A Lawmaker’s Good Word Improves the Odds, Dec. 5, 2011, at A1.

260. Pardon of Richard M. Nixon, and Related Matters, hearings before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess. 90-158 (1974).

261. Ex parte Garland, 71 U.S. 333, 380 (1867); 1 Op. Att’y Gen. 341, 343 (1820); Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975). For close analysis of the Nixon pardon, see Crouch, supra note 259, at 1–2, 66–85, 129–36, 137–39, 143.

262. 2 Op. Att’y Gen. 275 (1825); 6 Op. Att’y Gen. 20 (1853).

263. Public Papers of the Presidents, 1977, II, at 1409–10. See 91 Stat. 114, sec. 306 (1977); 91 Stat. 444, sec. 706 (1977).

264. Lawrence E. Walsh, Firewall: The Iran-Contra Conspiracy and Cover-up (1997); Theodore Draper, A Very Thin Line: The Iran-Contra Affairs (1991).

265. James J. Brosnahan, Pardoning Weinberger Belittles Democracy, Nat’l L. J., Jan. 18, 1993, at 17–18. See Crouch, supra note 259, 101–07, 136–39.

266. Louis Fisher, When Presidential Power Backfires: Clinton’s Use of Clemency, 32 Pres. Stud. Q. 586, 589–90 (2002).

267. Id. at 590–91. Also on the FALN clemencies, see Crouch, supra note 259, at 3–4, 21–22, 25–26, 95, 108–11, 140–42.

268. Fisher, supra note 266, at 594.

269. William Clinton, My Reasons for the Pardons, N.Y. Times, Feb. 18, 2001, at 13.

270. Joseph Kahn, Clinton’s Defense of Pardons Brings Even More Questions, N.Y. Times, Feb. 19, 2001, at A1, A15. For further analysis on the Marc Rich pardon, see Crouch, supra note 259, at 4, 22, 26, 96, 111–12, 112–17, 140.

271. Crouch, supra note 259, at 117–26, 142–46.

272. Id. at 123.

273. Id. at 124.

274. 2 Farrand 334, 341.

275. Id. at 135.

276. Id. at 343.

277. Id. at 495, 499, 541–43.

278. Id. at 541–42. For background on the Council idea and opposition to it, see Henry Barrett Learned, The President’s Cabinet 74–94 (1912).

279. The Federalist 473.

280. Youngstown Co. v. Sawyer, 343 U.S. 579, 640–41 (1952) (Jackson, J., concurring).

281. 4 Elliot 108.

282. Id. at 110. See Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647 (1996).

283. Neil Thomas Proto, The Opinion Clause and Presidential Decision-Making, 44 Mo. L. Rev. 185, 187–90 (1979). Also exploring the Opinion Clause: Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 32–38, 72 (1994).

284. 1 Farrand 63, 67.

285. 2 Farrand 185

286. Id. at 574, 600.

287. The Federalist 451.

288. Id. For interpretations of Hamilton that endorse an expansive view of presidential power, see John Yoo, Crisis and Command: A History of Executive Power from George Washington to George W. Bush 3–4, 10–11, 22–23, 37–49, 84–91, 114, 394, 402, 420, 425–26 (2009). For a challenge to Yoo’s analysis of Hamilton, see David Gray Adler, Presidential Power and Foreign Affairs in the Bush Administration: The Use and Abuse of Alexander Hamilton, 40 Pres. Stud. Q. 531 (2010).

289. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994); A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994); Morton Rosenberg, Congress’s Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627 (1989); and Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984).

290. Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994); Saikrishna B. Prakash, Hail to the Chief Administrator: The Framers and the President’s Administrative Powers, 102 Yale L.J. 991 (1993); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153 (1992); Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105 (1988); and Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41.

291. Steven G. Calabresi & Christopher Yoo, The Unitary Executive: Presidential Power from Washington to Bush 418 (2008).

292. Louis Fisher, Committee Controls of Agency Decisions, Congressional Research Service, Report No. RL33151, Nov. 16, 2005, http://www.loufisher.org/docs/lv/2626.pdf.

293. Louis Fisher, The Unitary Executive and Inherent Executive Power, 12 U. Pa. J. Const. L. 569 (2010).

294. 18 Op. O.L.C. 199, 200 (1994).

295. Id. at 200.

296. Id. at 201.

297. Id. at 202.

298. Id.

299. 4A Op. O.L.C. 55, 57–58 (1980).

300. Id. at 5.

301. Id. at 59.

302. Id. at 61. For other OLC opinions supporting the President’s authority not to carry out certain statutes or statutory provisions, see 16 Op. O.L.C. 18, 31–36 (1992); 14 Op. O.L.C. 37, 46–52 (1990). Studies that analyze the President’s constitutional power not to enforce statutes include Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Prob. 7 (2000); Christopher N. May, Presidential Defiance of “Unconstitutional” Laws (1998); Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267 (1996); and Christine E. Burgess, When May a President Refuse to Enforce the Law?, 72 Texas L. Rev. 631 (1994).

303. 98 Stat. 1040, 1049–50, sec. 21 (1979), revised by 116 Stat. 1771, sec. 202 (2002); 28 U.S.C. § 530D.

304. U.S. Department of Justice, Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act, Feb. 23, 2011, http://www.justice.gov/opa/pr/2011/February/11-ag-223.html

305. Lear Siegler, Inc., Energy Products Div. v. Lehman, 842 F.2d 1102, 1124 (9th Cir. 1988), withdrawn in part on other grounds, 893 F.2d 205 (9th Cir. 1989, as amended on Jan. 10, 1990). For other CICA cases, see the series of rulings at Ameron, Inc. v. U.S. Army Corps of Engineers, 607 F. Supp. 962 (D. N.J. 1985); Ameron, Inc. v. U.S. Army Corps of Engineers, 610 F. Supp. 750 (D. N.J. 1985); Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 (3d Cir. 1986); and Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979 (3d Cir. 1986). On the CICA litigation, see Eugene Gressman, Take Care, Mr. President, 64 N.C. L. Rev. 381 (1986).

306. John M. Carey & Matthew Soberg Shugart, eds., Executive Decree Authority (1998); James Hart, The Ordinance Making Powers of the President of the United States (1925).

307. Morton v. Ruiz, 415 U.S. 199 (1974).

308. 49 Stat. 500, sec. 5 (1935). Roosevelt’s Executive Order 7298, Feb. 18, 1936, appeared too early for the first volume of the Federal Register. It is reprinted in James Hart, The Exercise of Rule-Making Power, The President’s Committee on Administrative Management 355 (1937).

309. 60 Stat. 237, sec. 10(e) (1946); 5 U.S.C. § 706.

310. A rare, if not unprecedented, example of an executive order published in draft form in the Federal Register for notice and comment was an order by President Carter to improve federal regulations. It was printed at 42 Fed. Reg. 59740 (1977) and 43 Fed. Reg. 12661 (1978), including an analysis of public comments. It was published in final form as Executive Order 12044 four months after its original publication.

311. In United States v. Wayte, 549 F. Supp. 1376, 1389–91 (C.D. Cal. 1982), a district court held that President Carter’s Proclamation 4771 on draft registration was invalid for failing to comply with notice and comment requirements of the Military Selective Service Act. Although reversed in United States v. Wayte, 710 F.2d 1385, 1388–89 (9th Cir. 1983), both decisions recognized the authority of Congress to make such a requirement.

312. United States v. Martin, 557 F. Supp. 681, 690 (N.D. Iowa 1982).

313. On numbering of executive orders, see Presidential Executive Orders, compiled by WPA Historical Records survey (2 vols., 1944), at viii. On estimates, see Executive Orders and Proclamations: A Study of a Use of Presidential Power, printed for the House Committee on Government Operations, 85th Cong., 1st Sess. 37 (1957). A partial list of unnumbered orders appears in List and Index of Presidential Executive Orders (Unnumbered Series), 1789–1941, New Jersey Historical Records Survey, Work Projects Administration (1943).

314. 32 The Writings of George Washington 420–21, note 14 (Fitzpatrick ed. 1939).

315. For the confused process followed in drafting the Neutrality Proclamation, see Robert J. Reinstein, Executive Power and the Law of Nations in the Washington Administration, 46 U. Rich. L. Rev. 373, 409–33 (2012). Also: Jules Lobel, The Rise and Decline of the Neutrality Act: Sovereignty and Congressional War Powers in United States Foreign Policy, 24 Harv. Int’l L. J. 1 (1983).

316. Francis Wharton, State Trials of the United States During the Administration of Washington and Adams 84–85, 88 (1849); 2 John Marshall, The Life of George Washington 273 (1832).

317. Annals of Cong., 3d Cong., 1-2 Sess. 11 (1793).

318. 1 Stat. 381–84 (1794). See Robert J. Reinstein, An Early View of Executive Powers and Privilege: The Trial of Smith and Ogden, 2 Hastings Const. L. Q. 309 (1975).

319. Harold Holzer, Emancipating Lincoln: The Proclamation in Text, Context, and Memory 34–35, 88, 129 (2012). See John Hope Franklin, The Emancipation Proclamation (1995 ed.).

320. 12 Stat. 319 (1861); 12 Stat. 589 (1862). See Silvana R. Siddali, From Property to Person: Slavery and the Confiscation Acts, 1861–1862 (2005).

321. 12 Stat. at 354 (1862).

322. Id. at 617 (1862).

323. Id. at 376 (1862). See Sanford Levinson, The David C. Baum Memorial Lecture: Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?, 2001 U. Ill. L. Rev. 1135 ; Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief Power, 40 Ga. L. Rev. 807 (2006); Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 Sup. Ct. Rev. 349 (2009); and Paul Finkelman, Lincoln and the Preconceptions for Emancipation: The Moral Grandeur of a Bill of Lading, in Lincoln’s Proclamation: Race, Place, and the Paradoxes of Emancipation 13–44 (William A. Blair & Karen Fisher Younger, eds., 2009).

324. 59 A.B.A. Rep. 553–54 (1934).

325. Panama Refining Co. v. Ryan, 293 U.S. 388, 412–13 (1935). The discovery by administration officials that an executive order had inadvertently deleted penalties is discussed in Peter H. Irons, The New Deal Lawyers 70–71 (1982).

326. Irons, supra note 325, at 22–107.

327. Panama Refining Co. v. Ryan, 293 U.S. at 430.

328. Schechter Corp. v. United States, 295 U.S. 495 (1935).

329. H. Rep. No. 280, 74th Cong., 1st Sess. 1-2 (1935).

330. 49 Stat. 500 (1935).

331. 7 Fed. Reg. 1407 (1942).

332. 64 Stat. 997 (1950).

333. Boorda v. SACB, 421 F.2d 1142 (D.C. Cir. 1969), cert. denied, 397 U.S. 1042 (1970); United States v. Robel, 389 U.S. 258 (1967); Albertson v. SACB, 382 U.S. 70 (1965); Communist Party of the United States v. SACB, 367 U.S. 11 (1961).

334. 36 Fed. Reg. 12831 (1971).

335. 117 Cong. Rec. 25898-902, 27305-12 (1971); 118 Cong. Rec. 21053-74 (1972).

336. 86 Stat. 1134, sec. 706 (1972).

337. Louis Fisher, Executive Orders and Proclamations, 1933–99: Controversies with Congress and the Courts, Congressional Research Service, report RL30264, July 23, 1999, at 7, 11, 12–13, 14.

338. 61 Fed. Reg. 50223-27 (1996).

339. Fisher, supra note 337, at 18–19.

340. Many studies on executive orders and proclamations have appeared in recent years: Adam L. Warber, Executive Orders and the Modern Presidency: Legislating from the Oval Office (2006); William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (2003); Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action (2002); and Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power (2001). The scope of executive orders and proclamations attracted two congressional hearings in 1999: Congressional Limitation of Executive Orders, hearing before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary, 106th Cong., 1st Sess. (1999); and Executive Orders, hearing before the Subcommittee on Legislative and Budget Process of the House Committee on Rules, 106th Cong., 1st Sess. (1999).

341. The White House, Office of the Press Secretary, Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities, Executive Order, Jan. 22, 2009.

342. Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. Times, May 29, 2012, at A10.

343. Id. See Louis Fisher, Closing Guantánamo: President Obama Must Do It Right This Time, Nat’l L. J., July 1, 2103, at 42.

344. 46 Fed. Reg. 13193 (1981).

345. 39 Fed. Reg. 41501 (1974), 43 Fed. Reg. 12661 (1978), 50 Fed. Reg. 1036 (1985), 58 Fed. Reg. 51735 (1993), 72 Fed. Reg. 2763 (2007), 76 Fed. Reg. 3821 (2011). See Curtis W. Copeland, Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs, Congressional Research Service, Report RL32397, June 9, 2009.

346. Curtis W. Copeland, Executive Order 13422: An Expansion of Presidential Influence in the Rulemaking Process, 37 Pres. Stud. Q. 531 (2007); Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 Harv. L. Rev. 1097 (1986); Morton Rosenberg, Beyond the Limits of Executive Power Presidential Control of Agency Rulemaking Under Executive Order 12,291, 80 Mich. L. Rev. 193 (1981); and Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 Colum. L. Rev. 943 (1980).

347. Peter L. Strauss, Presidential Rulemaking, 72 Chicago-Kent L. Rev. 965 (1997).

348. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001).

349. Id. at 2308.

350. Id. at 2356.

351. Id. at 2306, 2358, 2363.

352. Id. at 2298.

353. 110 Stat. 868 (1996), 5 U.S.C. §§ 801–08.

354. Statistics compiled by Morton Rosenberg, former attorney for Congressional Research Service.

355. 115 Stat. 7 (2001). For analysis of the statute overturning the ergonomics rule, see Note, The Mysteries of the Congressional Review Act, 122 Harv. L. Rev. 2162 (2009). For the general ineffectiveness of the CRA, see Morton Rosenberg, Whatever Happened to Congressional Review of Agency Rulemaking?: A Brief Overview, Assessment, and Proposal for Reform, 51 Admin. L. Rev. 1051 (1999), and Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Rulemaking, 49 Admin. L. Rev. 95 (1996).

356. Curtis W. Copeland, Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions, Congressional Research Service, report RL34354, Aug. 5, 2008. See Phillip J. Cooper, The War Against Regulation from Jimmy Carter to George W. Bush (2009).

357. Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution 196–203 (1986).

358. Carl Marcy, Presidential Commissions 8 (1945).

359. Oscar Kraines, The Cockrell Committee, 1887–1889: First Comprehensive Congressional Investigation into Administration, 4 West. Pol. Q. 583 (1951). For the Cockrell-Dockery Commission, see Fred W. Powell, comp., Control of Federal Expenditures: A Documentary History, 1775–1894, at 706–915 (1939); Lloyd Milton Short, The development of National Administrative Organization in the United States 278–80 (1923); and Gustavus A. Weber, Organized Efforts for the Improvement of Methods of Administration in the United States 67–70 (1919).

360. Peri I. Arnold, Making the Managerial Presidency: Comprehensive Reorganization Planning, 1905–1996, at 3–21 (1998).

361. Id. at 13–18; Herbert Croly, The Promise of American Life (1909).

362. Louis Fisher, Presidential Spending Power 28 (1975). See also Oscar Kraines, The President Versus Congress: The Keep Commission, 1905–1909: First Comprehensive Presidential Inquiry into Administration, 23 West. Pol. Q. 5 (1970); Lewis L. Gould, The Presidency of Theodore Roosevelt 220–21 (1991).

363. 20 The Works of Theodore Roosevelt 552–53, 416–17 (1926); 35 Stat. 1027, sec. 9 (1909).

364. 36 Stat. 703 (1910). Congress subsequently granted the commission supplement amounts of $75,000 (36 Stat. 1364), $10,000 (37 Stat. 643), and $75,000 (37 Stat. 417). For progress reports and comments on the commission, see 15 Richardson 7698–7719, 7736–45, and 16 Richardson 7829–35.

365. The Need for a National Budget, H. Doc. 854, 62d Cong., 2d Sess. (1912).

366. 37 Stat. 415, sec. 9 (1912).

367. William Howard Taft, Our Chief Magistrate and His Powers 64–65 (1916). For the model budget, see 49 Cong. Rec. 3985 (1913). For details on Taft’s experience, see Arnold, supra note 360, at 26–51.

368. 49 Stat. 1600 (1936).

369. Arnold, supra note 360, at 94–95, 98–99.

370. Harold C. Relyea, The Executive Office of the President: An Historical Overview, Congressional Research Service, Report 98-606 GOV, Nov. 26, 2008. See also Harold C. Relyea, ed., The Executive Office of the President: A Historical, Biographical, and Bibliographical Guide (1997).

371. Arnold, supra note 360, at 103. See Louis Brownlow, A Passion for Anonymity (1958), and Report of the President’s Committee on Administrative management (1937).

372. 61 Stat. 247 (1947).

373. Arnold, supra note 360, at 122–59.

374. Id. at 160–227.

375. See id. at 361–64.

376. Kenneth Kitts, Presidential Commissions and National Security: The Politics of Damage Control 25–26 (2006).

377. Id. at 26–32.

378. Id. at 26, 32.

379. Id. at 35–36. Another harsh appraisal of the Roberts Commission: Gordon W. Prange, At Dawn We Slept: The Untold Story of Pearl Harbor 592–604 (1981). The commission report is published as S. Doc. No. 159, 77th Cong., 2d sess. (1942).

380. 58 Stat. 276, ch. 247 (1944).

381. Martin V. Melosi, The Shadow of Pearl Harbor: Political Controversy Over the Surprise Attack, 1941–1946, at 97–98, 101, 108, 117, 121, 145–47, 156–57 (1977).

382. Marcy, supra note 358, at 103.

383. Id. at 106.

384. Id. at 91–92, 96, 97.

385. Lyndon Baines Johnson, The Vantage Point: Perspectives of the Presidency, 1963–1969, at 25–27 (1971).

386. Id. at 27.

387. Earl Warren, The Memoirs of Earl Warren 358 (1977).

388. “First, it is not in the spirit of constitutional separation of powers to have a member of the Supreme Court serve on a presidential commission; second, it would distract a Justice from the work of the Court, which had a heavy docket; and, third, it was impossible to foresee what litigation such a Commission might spawn, with resulting disqualification of the Justice from sitting in such cases.” Warren, supra note 387, at 356. For additional reasons why federal judges should not serve on presidential commissions, see Wendy E. Ackerman, Separation of Powers and Judicial Service on Presidential Commissions, 53 U. Chi. L. Rev. 993 (1986). Exceptions may apply to judges sitting on commissions that involve judicial administration and judicial rulemaking.

389. E.g., Gerald Posner, Case Closed: Lee Harvey Oswald and the Assassination of JFK (1993); and Harold Weisberg, Case Open: The Omissions, Distortions and Falsifications of Case Closed (1994).

390. Edward Jay Epstein, Inquest: The Warren Commission and the Establishment of Truth 23 (1966 paperback edition).

391. Id. at 53.

392. Id. at 30.

393. Warren, supra note 387, at 363.

394. David W. Belin, November 22, 1963: You Are the Jury 3, 16–17, 345–49, 361–62, 422 (1973).

395. Kenneth Kitts, Commission Politics and National Security: Gerald Ford’s Response to the CIA Controversy of 1975, 26 Pres. Stud. Q. 1081, 1089 (1996).

396. Jordan Tama, Terrorism and National Security Reform: How Commissions Can Drive Change During Crises (2011); and Kenneth Kitts, Presidential Commissions and Nation Security: The Politics of Damage Control (2006).

397. See Amy B. Zegart, Blue Ribbons, Black Boxes: Toward a Better Understanding of Presidential Commissions, 34 Pres. Stud. Q. 366 (2004); David Flitner, Jr., The Politics of Presidential Commissions (1986); Terrence R. Tuchings, Rhetoric and Reality: Presidential Commissions and The Making of Public Policy (1979); Mirra Komarovsky, ed., Sociology and Public Policy: The Case of Presidential Commissions (1975); Thomas R. Wolanin, Presidential Advisory Commissions: Truman to Nixon (1975); and Frank Popper, The President’s Commissions (1970). For a study of riot commissions from 1917 to 1970, see Anthony M. Platt, ed., The Politics of Riot Commissions: A Collection of Official Reports and Critical Essays (1971).