forbidden by the Constitution or by the law. Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power. * * * 31

In contrast, President William H. Taft expressed his views on the Presidential office in these words:

** that a President can exercise no power which cannot fairly and reasonably be traced to some specific grant of power, or justly implied and included within such grant of power and necessary to its exercise. Such specific grants must be either in the Federal Constitution, or in any act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.32

These assessments of the Executive power are in a sense later echoes of sentiments expressed in the early days of this Nation's history. One of the outstanding incidents involving a controversy over the nature of the Executive power occurred in connection with President George Washington's so-called Proclamation of Neutrality in 1793. The 1793 controversy over Washington's Proclamation of Neutrality When France declared war against Great Britain (and Holland) in February 1793, her action precipitated a crisis of substantial proportions within the Government of the United States and among the populace of the young Nation. Anti-British feeling ran high, as did pro-French sympathies.

President Washington had two viewpoints represented strongly in his own Cabinet. Secretary of State Thomas Jefferson was antiBritish and pro-French while Alexander Hamilton was pro-British.33 President Washington was firmly determined to keep the United States neutral. So were Jefferson and Hamilton although each strongly favored a different side in the war. A fierce struggle ensued in Washington's Cabinet over whether he should issue a proclamation "*** for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain * *" and whether the proclamation should contain a declaration of neutrality.34

*

Jefferson opposed the issuance of a proclamation of neutrality on two grounds one political and the other constitutional. As a political ground he urged holding back a proclamation as a device for bargaining with the belligerents. On constitutional grounds Jefferson argued that such a declaration was a declaration of no war and in his

31 Quoted in Rankin M. Gibson, op. cit., p. 113. President Franklin D. Roosevelt expressed himself perhaps even more strongly along the same lines:

"In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

"The President has the powers, under the Constitution and under congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

This total war,

"The responsibilities of the President in wartime to protect the Nation are very grave. with our fighting fronts all over the world, makes the use of Executive power far more essential than in any previous war.

"I cannot tell what powers may have to be exercised in order to win this war. "The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

"When the war is won, the powers under which I act automatically revert to the people-to whom they belong" (Rankin M. Gibson, op. cit., pp. 114-115).

32 Ibid, p. 113.

Charles M. Thomas, American Neutrality in 1793, A Study in Cabinet Government, New York, Columbia University Press, 1931, pp. 18-20.

34 Ibid., p. 26.

view it was not for the Executive to decide the question of war on the negative or the affirmative side.35 Jefferson was supported in this view by Madison, Monroe, and others. Hamilton was of the opposing view.

* *

* *

President Washington did issue a proclamation on April 22, 1793. His proclamation enjoined the citizens of the United States to ** avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition ***" of "* a conduct friendly and impartial toward the belligerent powers The President's proclamation also stated that he had "*** given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the powers at war, or any of them." 36

The word "neutral" or "neutrality" was not used in the President's proclamation. But everyone recognized it as such a declaration and the Cabinet had another argument over the use of the term "neutrality" in drafting the President's speech to the Congress the next November. Washington closed the debate by stating that he never had any idea he could bind the Congress and that his proclamation could not look beyond the first day of their meeting. Moreover his speech to the Congress spoke of the proclamation merely as a declaration of the existing legal state of things.37

The struggle within the Cabinet and around President Washington found its reflection in a series of articles printed under the name of Pacificus (Hamilton) who supported Washington's actions in issuing the proclamation, and under the name of Helvidius (Madison) who opposed Washington's actions as unconstitutional. In a sense the arguments in these two series of letters, as they were called, have remained the lines of argument down through the years as will be seen in the discussion, infra, of the steel seizure case, the opinion in which was handed down by the Supreme Court in June 1952.

Basically, Hamilton's argument was that the Executive-power clause in article II was a grant of power in itself and authorized President Washington's action. Madison's opposing position was that the Executive-power. clause was not a grant of power in itself since ours is not a government involving royal prerogatives. Hamilton also advanced other sources of authority for the President in the Constitution.

The second article of the constitution of the United States, section first, establishes this general proposition, that "the EXECUTIVE POWER shall be vested in a president of the United States of America."

The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive anbassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities, as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The

35 Ibid., p. 36.

36 Ibid, pp. 42-43. 37 Ibid, pp. 47-48.

difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable, that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the the legislative powers of the government, the expressions are, "all legislative powers herein granted shall be vested in a congress of the United States." In that which grants the executive power, the expressions are, "the executive power shall be vested in a president of the United States."

The enumeration ought therefore to be considered, as intended merely to specifiy the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the constitution and with the principles of free government. The general doctrine of our constitution then is, that the executive power of the nation is vested in the president; subject only to the exceptions and qualifications, which are expressed in the instrument.

Two of these have been already noticed: the participation of the Senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned: the right of the legislature "to declare war," and "grant letters of marque and reprisal.'

With these exceptions, the executive power of the United States is completely lodged in the president. 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. It will follow, that if a proclamation of neutrality is merely an executive act, as it is believed has been shown, the step which has been taken by the president is liable to no just exception on the score of authority * * * 38

Madison stated in part his opposing views as follows:

The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant * * * 39

2. If we consult, for a moment, the nature and operation of the two powers to declare war and to make treaties it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws; it does not presuppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory, this is an absurdity * in practice a tyranny.

The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws; It does not suppose pre-existing laws to be executed; it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.

These remarks will be strengthened by adding, that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and complete. From this view of the subject it must be evident, that, although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war, and the proper agent for carrying into execution the final determinations of the competent authority, yet it can have no

33 Ibid, pp. 555-556

29 Ibid, p. 596.

pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.

It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that, than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.

Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly, must narrow instead of enlarging executive pretensions on those subjects.40 * * *

*** Whence then can the writer (Hamilton) have borrowed it? 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.

The President and the Supreme Court in the Andrew Jackson Nullification Controversy and Bank Charter Veto

President Andrew Jackson's term of office is sometimes referred to in connection with appraisals of Executive power under the Constitution, particularly as concerns the relationship of the powers of the President to those of the Supreme Court. The impression is often created that President Jackson and Chief Justice John Marshall had a head-on collision in the form of a specific case or cases and that President Jackson defied the Court. This appears to be such a widely held misconception that it is worth while briefly to summarize the facts in order to clarify the record in considering the use of Executive powers. The overlapping and coincidence of two events appear to have combined to obscure President Jackson's attitude toward the Supreme Court and its powers. One was the series of actions by the State of Georgia to assert its sovereignty over the Cherokee Nation within its borders and to deny the right of the Supreme Court to review its. actions. The other was the struggle over the renewal of the charter of the Bank of the United States which took place from January to June

1832.

On March 3, 1832, Chief Justice John Marshall rendered the opinion. of the Supreme Court holding a Georgia statute unconstitutional on the ground that the jurisdiction of the Federal Government over the Cherokees was exclusive, and that the State had no power to pass laws affecting them or their territory. The judgment of the Georgia Superior Court convicting (two missionaries who had defied the State law) was reversed and a special mandate ordered to issue to that Court, March 5, ordering their release.

42

It was in connection with the uproar which followed the Court's decision that President Jackson has been quoted as saying: "Well, John Marshall has made his decision, now let him enforce it." The source of this alleged quotation is a book by Horace Greeley in which Greeley quotes an alleged remark by a Member of Congress who is supposed to have heard President Jackson make the comment." There appears to be no substantiation for the quotation so often attributed to Jackson except that it was given an aura of likelihood

40 Ibid., pp. 598-599,

41 Ibid, p. 602.

42 Worcester v. Georgia, 6 Pet. 515. The material above concerning President Jackson and the Supreme Court is summarized from Charles Warren, The Supreme Court in United States History, Boston, Little, Brown & Co., 1935, vol. I, ch. 19.

43 Warren, op. cit., p. 759.

by Jackson's veto message on the bill extending the charter of the Bank of the United States in July 1832, only a few months later. It is true that the State of Georgia resisted the effort of the Supreme Court to assert its jurisdiction but there is little to uphold the contention that Jackson would do anything to undermine the authority of the Federal judiciary. Jackson's interest in the Union and in national authority was demonstrated forcefully in November and December of 1832, when, after South Carolina passed its Nullification Ordinance, Jackson took forthright action and recommended enactment by the Congress of "vigorous and radical" legislation giving the Federal courts and officials authority to deal with the situation.

President Jackson's attitude toward the Supreme Court should not be misconstrued as an argument for unlimited executive power particularly in view of his veto message on the bill to renew the charter of the Bank of the United States. In that message, however, Jackson merely emphasized his right to use the veto power given to him by the Constitution irrespective of anyone else's views on pending legislation. Jackson never asserted any right to refuse to execute any law enacted according to constitutional processes. Jackson said in response to the argument by advocates of the bill to the effect that the Supreme Court had upheld the constitutionality of the Bank's charter that such a decision

ought not to control the coordinate authorities of this Government. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The opinion of the Judges has no more authority over Congress than the opinion of Congress has over the Judges; and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress, or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

The eminent historian of constitutional law, Charles Warren, summarizes Jackson's viewpoint thus:

Jackson never asserted a right to decline to carry out a Court decision, when acting in his Executive capacity. It was when exercising his part of the lawmaking function of the Nation, and when deciding upon signature or veto of a bill presented to him, that he claimed the privilege of determining for himself the constitutionality of the proposed measure.16

Lincoln: The Commander-in-Chief, and the Use of Military Power

An extraordinarily vigorous use of executive power, characterized President Abraham Lincoln's tenure of office and the Civil War period. Some interesting aspects of Presidential power came to the fore as Lincoln waged his battle to preserve the Union. Primary among these was the President's use of his position as Commander

44 Warren, op. cit., p. 774.

45 Quoted in Warren, op. cit., pp. 761-762.

Warren, op. cit., p. 762. Chief Justice Taney explained Jackson's position as follows in a letter quoted in Warren at p. 763:

"He has been charged with asserting that he, as an Executive officer, had a right to judge for himself whether an act of Congress was constitutional or not, and was not bound to carry it into execution if he believed it to be unconstitutional, even if the Supreme Court decided otherwise; and this misrepresentation has been kept alive for particular purposes of personal ill will, and has, I learn, been repeated in the Senate during its late session. Yet no intelligent man who reads the message can misunderstand the meaning of the President. He was speaking of his rights and his duty, when acting as a part of the Legislative power, and not of his right or duty as an Executive officer. For when a bill is presented to him and he is to decide whether, by his approval, it shall become a law or not, his power or duty is purely Legislative as that of a member of Congress, when he is called on to vote for or against a bill. If he has firmly made up his mind that the proposed law is not within the powers of the General Government, he may and he ought to vote against it, notwithstanding an opinion to the contrary has been pronounced by the Supreme Court. * * *''