Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118567572
label
JGR/Article on the Presidency, National Forum (2 of 7)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118567572
contentType
document
title
JGR/Article on the Presidency, National Forum (2 of 7)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118567572
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
f2361adca7f6c535
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Article on the Presidency,
National Forum (2 of 7)
Box: 4
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
June 20, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Article on the Presidency
The attached letters for your signature will forward to the
editors of the issue of National Forum devoted to the
Bicentennial of the Constitution what I have styled a "first
draft" of the President's article. The draft includes your
suggested changes. The letter to editor Stephen W. White
also notes that the President, consistent with established
White House policy, will neither accept an honorarium nor
designate a charity to receive his honorarium. White raised
the honorarium question in his letter to you of May 25.
Attachments
THE WHITE HOUSE
WASHINGTON
June 20, 1984
Dear Dr. White:
Enclosed is a first draft of the President's article for the
issue of National Forum devoted to the Bicentennial of the
Constitution. We may have some revisions as the result of
further staffing of the article within the Executive Branch,
but I wanted to provide you with a draft without awaiting
the receipt of comments from all interested offices.
The President, consistent with established White House
policy, will neither accept an honorarium for the article
nor designate a charity to receive his honorarium. I look
forward to your comments on the draft.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
Dr. Stephen W. White
National Forum
Box 19420A
East Tennessee State University
Johnson City, TN 37614
FFF:JGR:aea 6/20/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 20, 1984
Dear Mark:
Enclosed is a first draft of the President's article for the
issue of National Forum devoted to the Bicentennial of the
Constitution. We may have some revisions as the result of
further staffing of the article within the Executive Branch,
but I wanted to provide you with a draft without awaiting
the receipt of comments from all interested offices. I look
forward to your comments.
With best wishes,
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
Dr. Mark Cannon
Administrative Assistant
to the Chief Justice
Supreme Court of the United States
Suite 5
Washington, D.C. 20543
FFF:JGR:aea 6/20/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 20, 1984
Dear Dr. White:
Enclosed is a first draft of the President's article for the
issue of National Forum devoted to the Bicentennial of the
Constitution. We may have some revisions as the result of
further staffing of the article within the Executive Branch,
but I wanted to provide you with a draft without awaiting
the receipt of comments from all interested offices.
The President, consistent with established White House
policy, will neither accept an honorarium for the article
nor designate a charity to receive his honorarium. I look
forward to your comments on the draft.
Sincerely,
Fred F. Fielding
Counsel to the President
Dr. Stephen W. White
National Forum
Box 19420A
East Tennessee State University
Johnson City, TN 37614
FFF: JGR:aea 6/20/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 20, 1984
Dear Mark:
Enclosed is a first draft of the President's article for the
issue of National Forum devoted to the Bicentennial of the
Constitution. We may have some revisions as the result of
further staffing of the article within the Executive Branch,
but I wanted to provide you with a draft without awaiting
the receipt of comments from all interested offices. I look
forward to your comments.
With best wishes,
Sincerely,
Fred F. Fielding
Counsel to the President
Dr. Mark Cannon
Administrative Assistant
to the Chief Justice
Supreme Court of the United States
Suite 5
Washington, D.C. 20543
FFF:JGR:aea 6/20/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
June 12, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
President's Article on the Presidency
for National Forum Issue on the
Bicentennial of the Constitution
Attached is a draft of the President's article on the
Presidency for the issue of National Forum dedicated to the
bicentennial of the Constitution. The article was supposed
hope
to be written at a level understandable to secondary school
students. The attached draft slightly exceeds the length
everyone
limits established by the editors, so suggested deletions
will be more welcome than suggested additions.
that
I do not consider it necessary to do anything in the way of
"staffing" other than having the Research Office do the same
sort of accuracy check it does for addresses. The elements
of the article concerning current Administration proposals
and positions -- the regulatory reform, foreign policy, and
line-item veto discussions -- are taken from previous
statements by the President. I think we should share the
draft with the editors as soon as you are comfortable with
it, rather than waiting for the completion of whatever
further staffing you consider appropriate.
Attachment
go.
Darman
ID #.
230435 CU
JV
WHITE HOUSE
PR014-08
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H . INTERNAL
I # INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Stephen W. White
John
MI Mail Report
User Codes: (A)
(B)
(C)
Subject:
soum re constitution
Ronald Reagan article for national
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHolland
DD
ORIGINATOR
84/105131
/
/
Referral Note
CUAT18
D 04/06/06/01
S 84,06,09
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A . Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R - - Direct Reply w/Copy
B - * Non-Special Referral
S : Suspended
D-- Draft Response
S For Signature
F . Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
NATIONAL
ФКФ
Forum
THE PHI KAPPA PHI JOURNAL
Editor
Managing Editor
STEPHEN W. WHITE
ELAINE M. SMOOT
May 25, 1984
The Honorable Fred F. Fielding
Counsel to the President
Old Executive Office Building
230435 an
Room 45
Washington, DC 20500
RE: President Ronald Reagan article
Dear Sir:
By this time, we hope that you are polishing the final draft of your
manuscript for the issue "Why Celebrate the Constitution? Toward the
Bicentennial of the Constitution." We would like to remind you that
the article should be cogent and highly readable. As you will recall,
the deadline for receipt of manuscripts for this issue is June 10,
1984. If you will be unable to meet this deadline, please contact our
editorial offices SO that, if possible, we can make arrangements for
submission at a later date. One copy of your manuscript should be
submitted to: Dr. Stephen W. "White, National Forum, Box 19420A, East
Tennessee State University, Johnson City, TN 37614. Also, one copy of
your manuscript should be sent to: Dr. Mark W. Cannon, Administrative
Assistant to the Chief Justice, Supreme Court of the United States,
Suite 5, Washington, DC 20543.
If you have not sent a black-and-white, glossy photograph of yourself
(preferably studio quality) to the editorial offices, please do SO now.
Photographs of authors may be published in this issue if space permits
and/or may be used in publicity concerning this issue.
Honoraria for articles on the Bicentennial of the Constitution will be
issued upon publication of the journal. If, for any reason, you will
be unable to accept an honorarium or if you would like to donate this
honorarium to an organization of your choice, please complete and
return the enclosed form designating the name and address of the
recipient.
We are looking forward to receiving your manuscript. Please do not
hesitate to contact our office if you have questions.
Sincerely, Stephen W. White Shite
Editor
Enclosure: Honoraria Form
BOX 19420A, EAST TENNESSEE STATE UNIVERSITY, JOHNSON CITY, TN 37614-0002
Phone: 615/929-5347
NAME OF AUTHOR:
HONORARIUM FORM
I will accept an honorarium.
I will be unable to accept an honorarium. Please return the
funds to the Bicentennial account.
I will be unable to accept an honorarium. Please forward a
check to the following organization.
NAME:
ADDRESS:
Please return this form to: Stephen W. White, Editor, National Forum,
Box 19420A, East Tennessee State University, Johnson City, TN 37614.
The Declaration of Independence not only proclaimed our
freedom from Great Britain, it also set forth the principles
for which the Founding Fathers were willing to pledge their
lives, fortunes, and sacred honor: "that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." The battles of the
Revolution secured the independence proclaimed in the
Declaration; it remained for the revolutionaries to put the
ideals of liberty into practice. History has recorded many
tragic episodes that bear witness to President Filmore's
caution "that revolutions do not always establish freedom."
Our's did, largely because it was shortly followed by the
framing of the Constitution, what the great American
historian George Bancroft termed "the most cheering act in
the political history of mankind."
One of our more able statesmen and constitutional lawyers,
Daniel Webster, once wrote: "We may be tossed upon an ocean
where we can see no land -- nor, perhaps, the sun or stars.
But there is a chart and a compass for us to study, to
consult, and to obey. The chart is the Constitution. " For
nearly two hundred years the Constitution has endured, with
relatively few amendments, as a blueprint for freedom.
- 2 -
In commemorating the bicentennial of the Constitution we
celebrate not simply the historical event that took place in
Philadelphia on September 17, 1787, but the process by which
we govern ourselves today.
The very notion of self-government was novel when the
Framers embarked upon the experiment of the Constitution.
James Madison, in the Federalist Papers, found it necessary
to urge his fellow citizens not to oppose ratification of
the Constitution because of its novelty. Madison argued
that it was the glory of the American people that they were
not blindly bound to the past but willing to rely on "their
own good sense" and experience in charting their course for
the future. "To this manly spirit posterity will be
indebted for the possession, and the world for the example,
of the numerous innovations displayed on the American
theater in favor of private rights and public happiness."
Madison's prediction has proved true. We are indebted to
the Framers for their brave willingness to govern
themselves, and the world is indebted to America for the
example it continues to provide of democratic
self-government. But while the Framers had to overcome the
fear of the new we must now equally fight against
complacency toward the old. There is the danger that a
people that has lived with freedom under law for two
- 3 -
centuries may forget how rare and precious that condition
is.
An active and informed citizenry is necessary to the
effective functioning of our Constitutional system. As
Chief Justice John Marshall, who knew a thing or two about
the Constitution, once wrote, "the people make the
Constitution, and the people can unmake it. It is the
creature of their own will, and lives only by their will."
All of us have an obligation to study the Constitution and
actively participate in the system of self-government it
establishes. This is an obligation we owe not only to
ourselves and our posterity, but to the Framers, who risked
everything for freedom, and to the brave men and women
throughout our history who have preserved the Constitution,
often at the cost of their lives. There is no better time
than this bicentennial period to refamiliarize ourselves
with the Constitution, and rededicate ourselves to the
values it embodies.
The central challenge confronting the Framers of the
Constitution was to create a strong national government
without at the same time permitting that government to
threaten the liberties so recently won. Experience under
the Articles of Confederation had demonstrated the
inadequacies of a weak government "destitute of energy," yet
the Framers' experience under the colonial rule of George
- 4 -
III had demonstrated the threat posed by strong central
government. The challenge was to reconcile those two
experiences. As Madison wrote, the difficulty was "com-
bining the requisite stability and energy in government with
the inviolable attention due to liberty and to the republican
form."
The solution embraced by the Framers was to diffuse the
national governmental authority. Power was to be shared
among separate institutions -- The Legislature, the
Executive, and the Judiciary -- in order that no single
branch could become so powerful as to threaten the liberties
of the people. In considering the allocation of authorities
in the Constitution, it is important to keep in mind the
purpose of this considered allocation -- nothing less than
the preservation of liberty. This is what Hamilton meant
when he wrote that the unamended Constitution "is itself, in
every rational sense, and to every useful purpose, a bill of
rights." Our liberties have been preserved in large part
because of the allocation of powers in the Constitution.
This central fact -- that the unamended Constitution is
itself a bill of rights, and that the allocation of powers
in the Constitution is preservative of liberty -- imposes a
special obligation on those who hold office under the
Constitution. Those officials must not only discharge their
responsibilities but must also respect the constitutional
restraints on their offices and, equally important, preserve
- 5 -
the constitutional prerogatives of their offices. Any
individual President is a trustee of the powers of the
office, and cannot yield those powers for expediency or any
other purpose. There may be times when a President would
prefer to have another branch make a difficult decision or
take action vested in the executive, or when a President
would be willing to countenance an intrusion on his powers
to achieve a particular result. At such times the Chief
Executive must recall that powers were allocated in the
Constitution not simply for efficiency but to preserve
liberty. In defending the Constitutional prerogatives of
the office the President is protecting liberty by fulfilling
the Framers' design.
The Framers looked primarily to the President to provide the
critical element of "energy" in the government. The problem
with the government of the Articles of Confederation was
that it was "destitute of energy." The drafters of the
Constitution redressed that problem by vesting in the
Executive "competent powers" to lead the Nation. As
Hamilton wrote:
- 6 -
Energy in the executive is a leading character
in the definition of good government. It is
essential to the protection of the community
against foreign attacks; it is not less
essential to the steady administration of the
laws; to the protection of property against
those irregular and high-handed combinations
which sometimes interrupt the ordinary course
of justice; to the security of liberty against
the enterprises and assaults of ambition, of
faction, and of anarchy.
The President's popular mandate justified this grant of
authority. Other than the Vice President with whom he runs,
the President is the only official in our government elected
through a process involving all the voters. Only the
President can claim to speak for all the people, because, as
Hamilton wrote, his selection looks "in the first instance
to an immediate act of the people of America." The office
of President has "a due dependence on the people, and a due
responsibility."
- 7 -
Perhaps the most pervasive responsibility of the President
is to administer the executive branch. The Framers of our
Constitution were practical men who recognized, as Hamilton
wrote, "that the true test of good government is its
aptitude and tendency to produce a good administration."
The people look ultimately to the President to ensure the
efficient performance of duty by the millions of federal
employees scattered among the various departments and
agencies across the land. I doubt that any of the Framers,
prescient as they were, could have imagined the size and
scope of today's Federal establishment. They nonetheless
afforded the Presidency the tools to meet the responsibility
vested in that office "to produce a good administration."
The key constitutional authority implementing the
President's responsibility for administration of the
government is his appointment power. The Constitution
provides that the President shall nominate, and by and with
the advice and consent of the Senate shall appoint, the
officers of the United States. The Framers gave the
President the responsibility to "take Care that the Laws be
faithfully executed," and gave him the power to appoint the
officers that assist him in discharging that responsibility.
In the landmark case of Myers V. United States, Chief
Justice Taft, a former President, wrote that it was a
"reasonable implication" from the President's obligation to
execute the laws that "he should select those who were to
- 8 -
act for him under his direction in the execution of the
laws. The Chief Justice went on to recognize the principle
that the President's appointment power carried with it the
corollary power to remove those officers in whom he could no
longer place his confidence: "as his selection of
administrative officers is essential to the execution of
laws by him, so must be his power of removing those for whom
he can not continue to be responsible." While there are
limited circumstances in which officers are not removable by
the President, the basic rule is that the President appoints
and may remove at will the officers of the United States.
This power, as the Framers recognized, is necessary if the
President is to be responsible for the faithful execution of
the laws and the provision of "a good administration."
The challenge confronting the modern Presidency is to
"produce a good administration" when the Federal
establishment has grown so far beyond anything the Framers
could have imagined. It is an amazing fact that there are
more Federal employees in America today than there were
people when the Framers drafted the Constitution. Perhaps
President Washington could play an active role in
supervising the details of the first administration; it is
now the responsibility of his successors to create the
mechanisms for control and coordination of the executive
- 9 -
branch. One such mechanism is Executive Order 12291, which
I issued during my first month in office. Executive Order
12291 for the first time provided effective and coordinated
management of the regulatory process. Under the executive
order, all Federal regulations must be reviewed by the
Office of Management and Budget before being issued to
determine whether their social benefits will exceed their
social costs. The Administration has issued a comprehensive
statement of regulatory policy, and established procedures
to ensure that this policy is reflected in the actions of
individual agencies.
Other initiatives include the recent establishment of the
President's Council on Management Improvement, an
interagency committee charged with improving management and
administration throughout the Government; the continuing
efforts of the President's Council on Integrity and
Efficiency, established in 1981, to root out fraud, waste,
and mismanagement; and the comprehensive review of the
functioning of the Government undertaken by the President's
Private Sector Survey on Cost Control. Given the size and
scope of the Federal bureaucracy, the Framers' admonition
that the Executive "produce a good administration" requires
careful and continuous attention to regulatory and
management reform.
- 10 -
At the same time, however, it is fitting to consider whether
the Federal Government is today trying to do too much. The
Framers did not vest in the national government the
responsibility of solving all the problems that might
confront the citizens of the Republic; the early Americans
were too jealous of their freedom to sanction such an
expansive view of central authority. It is the
responsibility of the President not only to manage
government efficiently, but also to offer leadership in
recognizing that spending by government must be limited to
those functions that are the proper responsibility of
government, and taxing by government must be limited to
providing revenue for legitimate government purposes.
The President has no more important responsibility under the
Constitution than the conduct of foreign affairs. As John
Marshall noted on the floor of the House of Representatives,
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations.' In the famous Curtiss-Wright decision of 1936,
the Supreme Court agreed with Marshall's assessment: "In
this vast external realm, the President alone has the power
to speak or listen as a representative of the nation." The
President's powers in this area derive from the general
grant of executive power, and the more specific grants of
- 11 -
authority to make treaties and appoint our ambassadors and
receive those of other nations, and his role as Commander in
Chief of the armed forces.
The Framers recognized that of the two democratic branches
only the Executive possessed the requisite attributes for
the successful conduct of foreign relations. Hamilton noted
in his description of the executive that "Decision,
activity, secrecy, and dispatch will generally characterize
the proceedings of one man in a much more eminent degree
than the proceedings of any greater member," and John Jay --
himself one of our most successful early diplomats -- argued
that "the President will have no difficulty to provide"
those qualities, though they were beyond the capability of a
basically deliberative body such as Congress. As Hamilton
argued, "The qualities
indispensible in the management of
foreign negotiations point out the executive as the most fit
agent in those transactions
"
When it came to the defense of the Nation, the Framers were
even more unambiguous. Hamilton, who served at General
Washington's side during the War of Independence, knew that
"the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of
the common strength; and the power of directing and
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
foreign policy by the Executive. Over 100 separate
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
foreign aid, intelligence operations, and the dispatch of
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
- 13 -
bipartisan consensus. We need to restore the honorable
American tradition that partisan politics stops at the
water's edge. As Congress attempts to augment its foreign
policy role it must ensure that the result is not simply
that America presents a discordant cacophony to the world,
to the detriment of its security and interests. The
President -- "the sole organ of the nation in its external
relations" -- must continually seek the means of developing
a bipartisan, Legislature-Executive consensus on America's
role in the world and the means of safeguarding that role.
As Congress increasingly enters the foreign policy realm it
too must recognize a greater responsibility for developing
such a consensus.
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." The people have grown to expect
leadership from the President not only in executing the laws
but also in presenting a legislative program to Congress for
consideration.
- 14 -
Perhaps the most prominent of the President's legislative
powers is his qualified veto power. This power is qualified
in the sense that a bill returned by the President with his
disapproval can nonetheless be enacted by a two-thirds vote
of both Houses. The Framers accorded the President a veto
power for two purposes. First, the Framers recognized the
"propensity of the legislative department to intrude upon
the rights, and to absorb the powers, of the other
departments," and provided the President a veto so that he
could defend the prerogatives of his office. The second
purpose of the veto is as "an additional security against
the enactment of improper laws." As Hamilton wrote:
The primary inducement to conferring the power
in question upon the executive is to enable him
to defend himself; the secondary one is to in-
crease the chances in favor of the community
against the passing of bad laws, through haste,
inadvertence, or design.
The unique perspective the President can bring to bear in
reviewing legislation was recognized by Chief Justice Taft:
The President is a representative of the people
just as the members of the Senate and of the House
are, and it may be, at some times, on some subjects,
- 15 -
that the President elected by all the people is
rather more representative of them all than are the
members of either body of the Legislature whose
constituencies are local and not countrywide.
The intent of the Framers in providing the President a
qualified veto power has been frustrated to a large extent
by the development of the Congressional practice of
combining various items in a single appropriations bill.
The Framers undoubtedly anticipated that Congress would pass
separate appropriations bills for discrete programs or
activities, and the President would be able to review each
program. Until about the time of the War Between the
States, this was the practice of Congress. Since that time,
however, Congress has increasingly combined various items of
appropriation in omnibus appropriations bills. This
practice makes it difficult for the President to discharge
the responsibility vested in him by the Framers, because he
cannot consider the individual items of appropriations
separately but must either veto or approve the package as a
whole. The President is thus prevented from using his veto
as the Framers intended, "to increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design."
- 16 -
It is for this reason that we have proposed restoring the
Framers' original design through a constitutional amendment
granting the President line-item veto authority. The
constitutions of no fewer than 43 states grant some such
authority to the governor, and the experience at the state
level suggests a line-item veto would work well at the
Federal level.
The powers of the Presidency are limited powers, and the
President discharges his constitutional responsibilities in
a system according other powers to the coordinate branches
of the Legislature and the Judiciary. As the Supreme Court
has remarked, there is a "never-ending tension between the
President exercising the executive authority in a world that
presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no
one disputes embodies some sort of system of checks and
balances." The members of all three branches take an oath
to uphold the Constitution, and it is a tribute not only to
the genius of the Framers but also to the statesmanship of
those who have held office under the Constitution that the
system has worked as well as it has.
Thomas Jefferson called the Presidency "a splendid misery."
The Framers intended, as Hamilton wrote, that "the executive
should be in a situation to dare to act his own opinion with
- 17 -
vigor and decision." The President has at his disposal the
advice of learned advisors, and he can consult with the
Congress, but the difficult and potentially momentous
decisions vested by the Constitution in the Executive are,
in the final analysis, his alone to make. Our most tested
President, Abraham Lincoln, announced a guide for making
those decisions that has not been improved upon:
I desire to conduct the affairs of this
Administration that if, at the end, when
I come to lay down the reins of power, I
have lost every other friend on earth, I
shall at least have one friend left, and
that friend shall be down inside of me.
As we prepare to commemorate the bicentennial of the
Constitution, let us honor the memory of the Framers who
drafted our blueprint for freedom, as well as those who,
like Lincoln, did not permit their dream to die. But let us
also recognize the workings of a greater force. The signers
of the Declaration of Independence acted with "a firm
reliance on the Protection of Divine Providence," and
Madison, reviewing the work of the Constitutional
Convention, noted that "It is impossible for the man of
pious reflection not to perceive in it a finger of that
Almighty hand which has been so frequently and signally
- 18 -
extended to our relief in the critical stages of the
revolution." What President Cleveland said on the occasion
of the centennial of the Constitution rings even truer
today:
When we look down upon 100 years and see the
origin of our Constitution, when we contemplate
all its trials and triumphs, when we realize how
completely the principles upon which it is based
have met every national need and national peril,
how devoutly should we say with Franklin, "God
governs in the affairs of men. "
ID #. 186920
CU
PR014-02
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H INTERNAL
I - INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Richard Darman
Name of Correspondent:
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Additional Comments on the President 5
Article Dor the national Forum from
Elliott OMB, MSC, logislative Affairs and Ben
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOU
ORIGINATOR 84/07/12
/
/
Referral Note:
CUAT 18
Dids
DY 84/07/12
584,07,13
Referral Note:
COB
/
/
/
/
I
Referral Note:
/
/
/
/
Referral Note:
/
/
/
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A Appropriate Action:
I Info Copy Only/No Action Necessary
A Answered
C Completed
C- Comment/Recommendation
R. Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
PRESERVATION COPY
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
I
Steve Minty
252-3410
Steve white Elaim Smoot
(615) 929-5347
PRESERVATION COPY
THE WHITE HOUSE
WASHINGTON
July 12, 1984
NOTE FOR DIANA
Re: Article for National Forum
Attached are comments received
from OMB, NSC, Legislative Affairs,
and Ben Elliott.
The Offices of Cabinet Affairs,
Policy Development and Inter-
governmental Affairs had no
changes.
Sorry this is late.
Jan
PRESERVATION COPY
THE WHITE HOUSE
WASHINGTON
July 10, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
President's Article
The attached draft article has been submitted on behalf of
the President for inclusion in the upcoming issue of National
Forum magazine devoted to the bicentennial of the Constitution.
The issue will contain articles on the Constitution by
scholars and statesmen, including an article on the Supreme
Court by the Chief Justice, one on the Congress by the
Speaker of the House, and the instant article on the Presidency
by the President. I would appreciate whatever staffing of
the article you consider appropriate. Our office must
provide final comments to the editors by Friday, SO we would
appreciate any suggestions by noon Thursday. Many thanks.
PRESERVATION COPY
The Declaration of Independence not only proclaimed our
freedom from Great Britain, it also set forth the principles
for which the Founding Fathers were willing to pledge their
lives, fortunes, and sacred honor: "that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." The battles of the
Revolution secured the independence proclaimed in the
Declaration; it remained for the revolutionaries to put the
ideals of liberty into practice. History has recorded many
tragic episodes that bear witness to President Filmore's
caution "that revolutions do not always establish freedom."
Our's did, largely because it was shortly followed by the
framing of the Constitution, what the great American
historian George Bancroft termed "the most cheering act in
the political history of mankind."
One of our more able statesmen and constitutional lawyers,
Daniel Webster, once wrote: "We may be tossed upon an ocean
where we can see no land -- nor, perhaps, the sun or stars.
But there is a chart and a compass for us to study, to
consult, and to obey. The chart is the Constitution." For
nearly two hundred years the Constitution has endured, with
relatively few amendments, as a blueprint for freedom.
PRESERVATION COPY
- 2 -
In commemorating the bicentennial of the Constitution we
celebrate not simply the historical event that took place in
Philadelphia on September 17, 1787, but the process by which
we govern ourselves today.
The very notion of self-government was novel when the
Framers embarked upon the experiment of the Constitution.
James Madison, in the Federalist Papers, found it necessary
to urge his fellow citizens not to oppose ratification of
the Constitution because of its novelty. Madison argued
that it was the glory of the American people that they were
not blindly bound to the past but willing to rely on "their
own good sense" and experience in charting their course for
the future. "To this manly spirit posterity will be
indebted for the possession, and the world for the example,
of the numerous innovations displayed on the American
theater in favor of private rights and public happiness."
Madison's prediction has proved true. We are indebted to
the Framers for their brave willingness to govern
themselves, and the world is indebted to America for the
example it continues to provide of democratic
self-government. But while the Framers had to overcome the
fear of the new we must now equally fight against
complacency toward the old. There is the danger that a
people that has lived with freedom under law for two
PRESERVATION COPY
- 3 -
centuries may forget how rare and precious that condition
is.
An active and informed citizenry is necessary to the
effective functioning of our Constitutional system. As
Chief Justice John Marshall, who knew a thing or two about
the Constitution, once wrote, "the people make the
Constitution, and the people can unmake it. It is the
creature of their own will, and lives only by their will."
All of us have an obligation to study the Constitution and
actively participate in the system of self-government it
establishes. This is an obligation we owe not only to
ourselves and our posterity, but to the Framers, who risked
everything for freedom, and to the brave men and women
throughout our history who have preserved the Constitution,
often at the cost of their lives. There is no better time
than this bicentennial period to refamiliarize ourselves
with the Constitution, and rededicate ourselves to the
values it embodies.
The central challenge confronting the Framers of the
Constitution was to create a strong national government
without at the same time permitting that government to
threaten the liberties SO recently won. Experience under
the Articles of Confederation had demonstrated the
inadequacies of a weak government "destitute of energy,' yet
the Framers' experience under the colonial rule of George
PRESERVATION COPY
- 4 -
III had demonstrated the threat posed by strong central
government. The challenge was to reconcile those two
experiences. As Madison wrote, the difficulty was "com-
bining the requisite stability and energy in government with
the inviolable attention due to liberty and to the republican
form."
The solution embraced by the Framers was to diffuse the
national governmental authority. Power was to be shared
among separate institutions -- The Legislature, the
Executive, and the Judiciary -- in order that no single
branch could become SO powerful as to threaten the liberties
of the people. In considering the allocation of authorities
in the Constitution, it is important to keep in mind the
purpose of this considered allocation -- nothing less than
the preservation of liberty. This is what Hamilton meant
when he wrote that the unamended Constitution "is itself, in
every rational sense, and to every useful purpose, a bill of
rights." Our liberties have been preserved in large part
because of the allocation of powers in the Constitution.
This central fact -- that the unamended Constitution is
itself a bill of rights, and that the allocation of powers
PRESERVATION COPY
in the Constitution is preservative of liberty -- imposes a
special obligation on those who hold office under the
Constitution. Those officials must not only discharge their
responsibilities but must also respect the constitutional
restraints on their offices and, equally important, preserve
- 5 -
the constitutional prerogatives of their offices. Any
individual President is a trustee of the powers of the
office, and cannot yield those powers for expediency or any
other purpose. There may be times when a President would
prefer to have another branch make a difficult decision or
take action vested in the executive, or when a President
would be willing to countenance an intrusion on his powers
to achieve a particular result. At such times the Chief
Executive must recall that powers were allocated in the
Constitution not simply for efficiency but to preserve
liberty. In defending the Constitutional prerogatives of
the office the President is protecting liberty by fulfilling
the Framers' design.
The Framers looked primarily to the President to provide the
critical element of "energy" in the government. The problem
with the government of the Articles of Confederation was
that it was "destitute of energy." The drafters of the
Constitution redressed that problem by vesting in the
Executive "competent powers" to lead the Nation. As
Hamilton wrote:
PRESERVATION COPY
- 6 -
Energy in the executive is a leading character
in the definition of good government. It is
essential to the protection of the community
against foreign attacks; it is not less
essential to the steady administration of the
laws; to the protection of property against
those irregular and high-handed combinations
which sometimes interrupt the ordinary course
of justice; to the security of liberty against
the enterprises and assaults of ambition, of
faction, and of anarchy.
The President's popular mandate justified this grant of
authority. Other than the Vice President with whom he runs,
the President is the only official in our government elected
through a process involving all the voters. Only the
President can claim to speak for all the people, because, as
Hamilton wrote, his selection looks "in the first instance
to an immediate act of the people of America." The office
of President has "a due dependence on the people, and a due
responsibility."
PRESERVATION COPY
- 7 -
Perhaps the most pervasive responsibility of the President
is to administer the executive branch. The Framers of our
Constitution were practical men who recognized, as Hamilton
wrote, "that the true test of good government is its
aptitude and tendency to produce a good administration."
The people look ultimately to the President to ensure the
efficient performance of duty by the millions of federal
employees scattered among the various departments and
agencies across the land. I doubt that any of the Framers,
prescient as they were, could have imagined the size and
scope of today's Federal establishment. They nonetheless
afforded the Presidency the tools to meet the responsibility
vested in that office "to produce a good administration."
The key constitutional authority implementing the
President's responsibility for administration of the
government is his appointment power. The Constitution
provides that the President shall nominate, and by and with
the advice and consent of the Senate shall appoint, the
officers of the United States. The Framers gave the
President the responsibility to "take Care that the Laws be
faithfully executed," and gave him the power to appoint the
officers that assist him in discharging that responsibility.
In the landmark case of Myers V. United States, Chief
Justice Taft, a former President, wrote that it was a
"reasonable implication" from the President's obligation to
execute the laws that "he should select those who were to
PRESERVATION COPY
- 8 -
act for him under his direction in the execution of the
laws. " The Chief Justice went on to recognize the principle
that the President's appointment power carried with it the
corollary power to remove those officers in whom he could no
longer place his confidence: "as his selection of
administrative officers is essential to the execution of
laws by him, so must be his power of removing those for whom
he can not continue to be responsible." While there are
limited circumstances in which officers are not removable by
the President, the basic rule is that the President appoints
and may remove at will the officers of the United States.
This power, as the Framers recognized, is necessary if the
President is to be responsible for the faithful execution of
the laws and the provision of "a good administration."
The challenge confronting the modern Presidency is to
"produce a good administration" when the Federal
establishment has grown SO far beyond anything the Framers
could have imagined. It is an amazing fact that there are
more Federal employees in America today than there were
people when the Framers drafted the Constitution. Perhaps
President Washington could play an active role in
supervising the details of the first administration; it is
now the responsibility of his successors to create the
mechanisms for control and coordination of the executive
PRESERVATION COPY
- 9 -
branch. One such mechanism is Executive Order 12291, which
I issued during my first month in office. Executive Order
12291 for the first time provided effective and coordinated
management of the regulatory process. Under the executive
order, all Federal regulations must be reviewed by the
Office of Management and Budget before being issued to
determine whether their social benefits will exceed their
social costs. The Administration has issued a comprehensive
statement of regulatory policy, and established procedures
to ensure that this policy is reflected in the actions of
individual agencies.
Other initiatives include the recent establishment of the
President's Council on Management Improvement, an
interagency committee charged with improving management and
administration throughout the Government; the continuing
efforts of the President's Council on Integrity and
Efficiency, established in 1981, to root out fraud, waste,
and mismanagement; and the comprehensive review of the
functioning of the Government undertaken by the President's
Private Sector Survey on Cost Control. Given the size and
scope of the Federal bureaucracy, the Framers' admonition
that the Executive "produce a good administration" requires
careful and continuous attention to regulatory and
management reform.
PRESERVATION COPY
- 10 -
At the same time, however, it is fitting to consider whether
the Federal Government is today trying to do too much. The
Framers did not vest in the national government the
responsibility of solving all the problems that might
confront the citizens of the Republic; the early Americans
were too jealous of their freedom to sanction such an
expansive view of central authority. It is the
responsibility of the President not only to manage
government efficiently, but also to offer leadership in
recognizing that spending by government must be limited to
those functions that are the proper responsibility of
government, and taxing by government must be limited to
providing revenue for legitimate government purposes.
The President has no more important responsibility under the
Constitution than the conduct of foreign affairs. As John
Marshall noted on the floor of the House of Representatives,
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations." In the famous Curtiss-Wright decision of 1936,
the Supreme Court agreed with Marshall's assessment: "In
this vast external realm, the President alone has the power
to speak or listen as a representative of the nation." The
President's powers in this area derive from the general
grant of executive power, and the more specific grants of
PRESERVATION COPY
- 11 -
authority to make treaties and appoint our ambassadors and
receive those of other nations, and his role as Commander in
Chief of the armed forces.
The Framers recognized that of the two democratic branches
only the Executive possessed the requisite attributes for
the successful conduct of foreign relations. Hamilton noted
in his description of the executive that "Decision,
activity, secrecy, and dispatch will generally characterize
the proceedings of one man in a much more eminent degree
than the proceedings of any greater member," and John Jay --
himself one of our most successful early diplomats -- argued
that "the President will have no difficulty to provide"
those qualities, though they were beyond the capability of a
basically deliberative body such as Congress. As Hamilton
argued, "The qualities
indispensible in the management of
foreign negotiations point out the executive as the most fit
agent in those transactions
"
When it came to the defense of the Nation, the Framers were
even more unambiguous. Hamilton, who served at General
Washington's side during the War of Independence, knew that
"the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of
the common strength; and the power of directing and
PRESERVATION COPY
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
foreign policy by the Executive. Over 100 separate
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
foreign aid, intelligence operations, and the dispatch of
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
PRESERVATION COPY
- 13 -
bipartisan consensus. We need to restore the honorable
American tradition that partisan politics stops at the
water's edge. As Congress attempts to augment its foreign
policy role it must ensure that the result is not simply
that America presents a discordant cacophony to the world,
to the detriment of its security and interests. The
President -- "the sole organ of the nation in its external
relations" -- must continually seek the means of developing
a bipartisan, Legislature-Executive consensus on America's
role in the world and the means of safeguarding that role.
As Congress increasingly enters the foreign policy realm it
too must recognize a greater responsibility for developing
such a consensus.
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." The people have grown to expect
leadership from the President not only in executing the laws
but also in presenting a legislative program to Congress for
consideration.
PRESERVATION COPY
- 14 -
Perhaps the most prominent of the President's legislative
powers is his qualified veto power. This power is qualified
in the sense that a bill returned by the President with his
disapproval can nonetheless be enacted by a two-thirds vote
of both Houses. The Framers accorded the President a veto
power for two purposes. First, the Framers recognized the
"propensity of the legislative department to intrude upon
the rights, and to absorb the powers, of the other
departments," and provided the President a veto SO that he
could defend the prerogatives of his office. The second
purpose of the veto is as "an additional security against
the enactment of improper laws." As Hamilton wrote:
The primary inducement to conferring the power
in question upon the executive is to enable him
to defend himself; the secondary one is to in-
crease the chances in favor of the community
against the passing of bad laws, through haste,
inadvertence, or design.
The unique perspective the President can bring to bear in
reviewing legislation was recognized by Chief Justice Taft:
The President is a representative of the people
just as the members of the Senate and of the House
are, and it may be, at some times, on some subjects,
PRESERVATION COPY
- 15 -
that the President elected by all the people is
rather more representative of them all than are the
members of either body of the Legislature whose
constituencies are local and not countrywide.
The intent of the Framers in providing the President a
qualified veto power has been frustrated to a large extent
by the development of the Congressional practice of
combining various items in a single appropriations bill.
The Framers undoubtedly anticipated that Congress would pass
separate appropriations bills for discrete programs or
activities, and the President would be able to review each
program. Until about the time of the War Between the
States, this was the practice of Congress. Since that time,
however, Congress has increasingly combined various items of
appropriation in omnibus appropriations bills. This
practice makes it difficult for the President to discharge
the responsibility vested in him by the Framers, because he
cannot consider the individual items of appropriations
separately but must either veto or approve the package as a
whole. The President is thus prevented from using his veto
as the Framers intended, "to increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design."
PRESERVATION COPY
- 16 -
It is for this reason that we have proposed restoring the
Framers' original design through a constitutional amendment
granting the President line-item veto authority. The
constitutions of no fewer than 43 states grant some such
authority to the governor, and the experience at the state
level suggests a line-item veto would work well at the
Federal level.
The powers of the Presidency are limited powers, and the
President discharges his constitutional responsibilities in
a system according other powers to the coordinate branches
of the Legislature and the Judiciary. As the Supreme Court
has remarked, there is a "never-ending tension between the
President exercising the executive authority in a world that
presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no
one disputes embodies some sort of system of checks and
balances." The members of all three branches take an oath
to uphold the Constitution, and it is a tribute not only to
the genius of the Framers but also to the statesmanship of
those who have held office under the Constitution that the
system has worked as well as it has.
Thomas Jefferson called the Presidency "a splendid misery."
The Framers intended, as Hamilton wrote, that "the executive
should be in a situation to dare to act his own opinion with
PRESERVATION COPY
- 17 -
vigor and decision. The President has at his disposal the
advice of learned advisors, and he can consult with the
Congress, but the difficult and potentially momentous
decisions vested by the Constitution in the Executive are,
in the final analysis, his alone to make. Our most tested
President, Abraham Lincoln, announced a guide for making
those decisions that has not been improved upon:
I desire to conduct the affairs of this
Administration that if, at the end, when
I come to lay down the reins of power, I
have lost every other friend on earth, I
shall at least have one friend left, and
that friend shall be down inside of me.
As we prepare to commemorate the bicentennial of the
Constitution, let us honor the memory of the Framers who
drafted our blueprint for freedom, as well as those who,
like Lincoln, did not permit their dream to die. But let us
also recognize the workings of a greater force. The signers
of the Declaration of Independence acted with "a firm
reliance on the Protection of Divine Providence,' and
Madison, reviewing the work of the Constitutional
Convention, noted that "It is impossible for the man of
pious reflection not to perceive in it a finger of that
Almighty hand which has been so frequently and signally
PRESERVATION COPY
- 18 -
extended to our relief in the critical stages of the
revolution." What President Cleveland said on the occasion
of the centennial of the Constitution rings even truer
today:
When we look down upon 100 years and see the
origin of our Constitution, when we contemplate
all its trials and triumphs, when we realize how
completely the principles upon which it is based
have met every national need and national peril,
how devoutly should we say with Franklin, "God
governs in the affairs of men. "
PRESERVATION COPY
Stockman
PRESERVATION COPY
OF
PRESIDENT
EXECUTIVE OFFICE OF THE PRESIDENT
in
11
OFFICE
UNITED
OFFICE OF MANAGEMENT AND BUDGET
STATES
WASHINGTON, D.C. 20503
July 11, 1984
MEMORANDUM
TO:
Richard G. Darman
FROM:
Mike Horowitz M4
SUBJECT: Proposed Presidential Article for National Forum
Magazine
I suggest three modifications:
1. In light of our position that there should be no real
distinction between Executive Branch and "independent" agencies
-- a point of critical and, I believe, constitutional
significance to the Presidency -- we should reconsider citing the
appointment power as "[t]he key constitutional authority
implementing the President's responsibility for administration of
the government." The better position is that the key
constitutional provision re administration of the government is
the President's responsibility to "take Care that the Laws be
faithfully executed." I would thus change the second paragraph
on page 7 to read as follows:
"The key constitutional authority implementing the
President's authority for administration of the
government is his responsibility "to take Care that
the Laws be faithfully executed." In addition, the
constitution provides that the President shall
nominate, and by and with the advice and consent of
the Senate shall appoint, the officers of the United
States.
In the landmark case of Myers V. United States,
[etc.].
2. At page 9, the discussion of Executive Order 12291 needs
modification in the interest of accuracy. The third sentence on
page 9 should read as follows:
"Under the executive order, all regulations issued
by Executive departments and agencies must be
reviewed by the Office of Management and Budget
before being issued to determine whether they
PRESERVATION COPY
-2-
conform to the President's policies and to consider,
to the extent possible, whether their social
benefits will exceed their social costs."
3. At page 15, a symbolic and historic point, I think it
inappropriate for a successor to Abraham Lincoln to speak of the
War Between the States. (Lincoln would have regarded the phrase
as bordering on treasonous.) The more appropriate reference is
to the Civil War.
CC: Dave Gerson
PRESERVATION COPY
: : h (
PRESERVATION COPY
Document No.
ISSA JUL 12 III 1630
WHITE HOUSE STAFFING MEMORANDUM
DATE:
7/10/84
ACTION/CONCURRENCE/COMMENT DUE BY: 7/12 - NOON
PROPOSED PRESIDENTIAL ARTICLE FOR NATIONAL FORUM MAGAZINE
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
McMANUS
MEESE
MURPHY
BAKER
OGLESBY
DEAVER
ROGERS
STOCKMAN
SPEAKES
DARMAN
P
185
SVAHN
FELDSTEIN
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
BAROODY
TUTWILER
HERRINGTON
ELLIOTT
HICKEY
McFARLANE
REMARKS:
Please provide any edits/comments to my office by 12:00 Noon on
Thursday, July 12. Thank you.
RESPONSE:
PRESERVATION COPY
Richard G. Darman
Assistant to the President
Ext. 2702
THE WHITE HOUSE
WASHINGTON
July 10, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
President's Article
The attached draft article has been submitted on behalf of
the President for inclusion in the upcoming issue of National
Forum magazine devoted to the bicentennial of the Constitution.
The issue will contain articles on the Constitution by
scholars and statesmen, including an article on the Supreme
Court by the Chief Justice, one on the Congress by the
Speaker of the House, and the instant article on the Presidency
by the President. I would appreciate whatever staffing of
the article you consider appropriate. Our office must
provide final comments to the editors by Friday, so we would
appreciate any suggestions by noon Thursday. Many thanks.
PRESERVATION COPY
The Declaration of Independence not only proclaimed our
freedom from Great Britain, it also set forth the principles
for which the Founding Fathers were willing to pledge their
lives, fortunes, and sacred honor: "that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." The battles of the
Revolution secured the independence proclaimed in the
Declaration; it remained for the revolutionaries to put the
ideals of liberty into practice. History has recorded many
tragic episodes that bear witness to President Filmore's
caution "that revolutions do not always establish freedom."
Our's did, largely because it was shortly followed by the
framing of the Constitution, what the great American
historian George Bancroft termed "the most cheering act in
the political history of mankind."
One of our more able statesmen and constitutional lawyers,
Daniel Webster, once wrote: "We may be tossed upon an ocean
where we can see no land -- nor, perhaps, the sun or stars.
But there is a chart and a compass for us to study, to
consult, and to obey. The chart is the Constitution." For
nearly two hundred years the Constitution has endured, with
relatively few amendments, as a blueprint for freedom.
PRESERVATION COPY
- 2 -
In commemorating the bicentennial of the Constitution we
celebrate not simply the historical event that took place in
Philadelphia on September 17, 1787, but the process by which
we govern ourselves today.
The very notion of self-government was novel when the
Framers embarked upon the experiment of the Constitution.
James Madison, in the Federalist Papers, found it necessary
to urge his fellow citizens not to oppose ratification of
the Constitution because of its novelty. Madison argued
that it was the glory of the American people that they were
not blindly bound to the past but willing to rely on "their
own good sense" and experience in charting their course for
the future. "To this manly spirit posterity will be
indebted for the possession, and the world for the example,
of the numerous innovations displayed on the American
theater in favor of private rights and public happiness."
Madison's prediction has proved true. We are indebted to
the Framers for their brave willingness to govern
themselves, and the world is indebted to America for the
example it continues to provide of democratic
self-government. But while the Framers had to overcome the
fear of the new we must now equally fight against
complacency toward the old. There is the danger that a
people that has lived with freedom under law for two
PRESERVATION COPY
- 3 -
centuries may forget how rare and precious that condition
is.
An active and informed citizenry is necessary to the
effective functioning of our Constitutional system. As
Chief Justice John Marshall, who knew a thing or two about
the Constitution, once wrote, "the people make the
Constitution, and the people can unmake it. It is the
creature of their own will, and lives only by their will."
All of us have an obligation to study the Constitution and
actively participate in the system of self-government it
establishes. This is an obligation we owe not only to
ourselves and our posterity, but to the Framers, who risked
everything for freedom, and to the brave men and women
throughout our history who have preserved the Constitution,
often at the cost of their lives. There is no better time
than this bicentennial period to refamiliarize ourselves
with the Constitution, and rededicate ourselves to the
values it embodies.
The central challenge confronting the Framers of the
Constitution was to create a strong national government
without at the same time permitting that government to
threaten the liberties so recently won. Experience under
the Articles of Confederation had demonstrated the
inadequacies of a weak government "destitute of energy,' yet
the Framers' experience under the colonial rule of George
PRESERVATION COPY
- 4 -
III had demonstrated the threat posed by strong central
government. The challenge was to reconcile those two
experiences. As Madison wrote, the difficulty was "com-
bining the requisite stability and energy in government with
the inviolable attention due to liberty and to the republican
form."
The solution embraced by the Framers was to diffuse the
national governmental authority. Power was to be shared
among separate institutions -- The Legislature, the
Executive, and the Judiciary -- in order that no single
branch could become so powerful as to threaten the liberties
of the people. In considering the allocation of authorities
in the Constitution, it is important to keep in mind the
purpose of this considered allocation -- nothing less than
the preservation of liberty. This is what Hamilton meant
when he wrote that the unamended Constitution "is itself, in
every rational sense, and to every useful purpose, a bill of
rights." Our liberties have been preserved in large part
because of the allocation of powers in the Constitution.
This central fact -- that the unamended Constitution is
itself a bill of rights, and that the allocation of powers
PRESERVATION COPY
in the Constitution is preservative of liberty -- imposes a
special obligation on those who hold office under the
Constitution. Those officials must not only discharge their
responsibilities but must also respect the constitutional
restraints on their offices and, equally important, preserve
- 5 -
the constitutional prerogatives of their offices. Any
individual President is a trustee of the powers of the
office, and cannot yield those powers for expediency or any
other purpose. There may be times when a President would
prefer to have another branch make a difficult decision or
take action vested in the executive, or when a President
would be willing to countenance an intrusion on his powers
to achieve a particular result. At such times the Chief
Executive must recall that powers were allocated in the
Constitution not simply for efficiency but to preserve
liberty. In defending the Constitutional prerogatives of
the office the President is protecting liberty by fulfilling
the Framers' design.
The Framers looked primarily to the President to provide the
critical element of "energy" in the government. The problem
with the government of the Articles of Confederation was
that it was "destitute of energy." The drafters of the
Constitution redressed that problem by vesting in the
Executive "competent powers" to lead the Nation. As
Hamilton wrote:
PRESERVATION COPY
- 6 -
Energy in the executive is a leading character
in the definition of good government. It is
essential to the protection of the community
against foreign attacks; it is not less
essential to the steady administration of the
laws; to the protection of property against
those irregular and high-handed combinations
which sometimes interrupt the ordinary course
of justice; to the security of liberty against
the enterprises and assaults of ambition, of
faction, and of anarchy.
The President's popular mandate justified this grant of
authority. Other than the Vice President with whom he runs,
the President is the only official in our government elected
through a process involving all the voters. Only the
President can claim to speak for all the people, because, as
Hamilton wrote, his selection looks "in the first instance
to an immediate act of the people of America." The office
of President has "a due dependence on the people, and a due
responsibility."
PRESERVATION COPY
- 7 -
Perhaps the most pervasive responsibility of the President
is to administer the executive branch. The Framers of our
Constitution were practical men who recognized, as Hamilton
wrote, "that the true test of good government is its
aptitude and tendency to produce a good administration."
The people look ultimately to the President to ensure the
efficient performance of duty by the millions of federal
employees scattered among the various departments and
agencies across the land. I doubt that any of the Framers,
prescient as they were, could have imagined the size and
scope of today's Federal establishment. They I nonetheless
5
afforded the Presidency the tools to meet the responsibility
vested in that office "to produce a good administration."
The key constitutional authority implementing the
President's responsibility for administration of the
government is his appointment power. The Constitution
provides that the President shall nominate, and by and with
the advice and consent of the Senate shall appoint, the
officers of the United States. The Framers gave the
President the responsibility to "take Care that the Laws be
faithfully executed," and gave him the power to appoint the
officers that assist him in discharging that responsibility.
In the landmark case of Myers V. United States, Chief
Justice Taft, a former President, wrote that it was a
"reasonable implication" from the President's obligation to
execute the laws that "he should select those who were to
PRESERVATION COPY
- 8 -
act for him under his direction in the execution of the
laws." The Chief Justice went on to recognize the principle
that the President's appointment power carried with it the
corollary power to remove those officers in whom he could no
longer place his confidence: "as his selection of
administrative officers is essential to the execution of
laws by him, SO must be his power of removing those for whom
he can not continue to be responsible." While there are
limited circumstances in which officers are not removable by
the President, the basic rule is that the President appoints
and may remove at will the officers of the United States.
This power, as the Framers recognized, is necessary if the
President is to be responsible for the faithful execution of
the laws and the provision of "a good administration."
The challenge confronting the modern Presidency is to
"produce a good administration" when the Federal
establishment has grown SO far beyond anything the Framers
could have imagined. It is an amazing fact that there are
more Federal employees in America today than there were
people when the Framers drafted the Constitution. Perhaps
President Washington could play an active role in
supervising the details of the first administration; it is
now the responsibility of his successors to create the
mechanisms for control and coordination of the executive
PRESERVATION COPY
- 9 -
branch. One such mechanism is Executive Order 12291, which
I issued during my first month in office. Executive Order
12291 for the first time provided effective and coordinated
management of the regulatory process. Under the executive
order, all Federal regulations must be reviewed by the
Office of Management and Budget before being issued to
determine whether their social benefits will exceed their
social costs. The Administration has issued a comprehensive
statement of regulatory policy, and established procedures
to ensure that this policy is reflected in the actions of
individual agencies.
Other initiatives include the recent establishment of the
President's Council on Management Improvement, an
interagency committee charged with improving management and
administration throughout the Government; the continuing
efforts of the President's Council on Integrity and
Efficiency, established in 1981, to root out fraud, waste,
and mismanagement; and the comprehensive review of the
functioning of the Government undertaken by the President's
Private Sector Survey on Cost Control. Given the size and
scope of the Federal bureaucracy, the Framers' admonition
that the Executive "produce a good administration" requires
careful and continuous attention to regulatory and
management reform.
PRESERVATION COPY
- 10 -
At the same time, however, it is fitting to consider whether
the Federal Government is today trying to do too much. The
Framers did not vest in the national government the
responsibility of solving all the problems that might
confront the citizens of the Republic; the early Americans
were too jealous of their freedom to sanction such an
expansive view of central authority. It is the
responsibility of the President not only to manage
government efficiently, but also to offer leadership in
recognizing that spending by government must be limited to
those functions that are the proper responsibility of
government, and taxing by government must be limited to
providing revenue for legitimate government purposes.
The President has no more important responsibility under the
Constitution than the conduct of foreign affairs. As John
Marshall noted on the floor of the House of Representatives,
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations." In the famous Curtiss-Wright decision of 1936,
the Supreme Court agreed with Marshall's assessment: "In
this vast external realm, the President alone has the power
to speak or listen as a representative of the nation." The
President's powers in this area derive from the general
grant of executive power, and the more specific grants of
PRESERVATION COPY
- 11 -
authority to make treaties and appoint our ambassadors and
receive those of other nations, and his role as Commander in
Chief of the armed forces.
The Framers recognized that of the two democratic branches
only the Executive possessed the requisite attributes for
the successful conduct of foreign relations. Hamilton noted
in his description of the executive that "Decision,
activity, secrecy, and dispatch will generally characterize
the proceedings of one man in a much more eminent degree
than the proceedings of any greater member," and John Jay --
himself one of our most successful early diplomats -- argued
that "the President will have no difficulty to provide"
those qualities, though they were beyond the capability of a
basically deliberative body such as Congress. As Hamilton
argued, "The qualities
indispensible in the management of
foreign negotiations point out the executive as the most fit
agent in those transactions
"
When it came to the defense of the Nation, the Framers were
even more unambiguous. Hamilton, who served at General
Washington's side during the War of Independence, knew that
"the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of
the common strength; and the power of directing and
PRESERVATION COPY
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
foreign policy by the Executive. Over 100 separate
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
foreign aid, intelligence operations, and the dispatch of
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
PRESERUATION
- 13 -
bipartisan consensus. We need to restore the honorable
American tradition that partisan politics stops at the
water's edge. As Congress attempts to augment its foreign
policy role it must ensure that the result is not simply
that America presents a discordant cacophony to the world,
to the detriment of its security and interests. The
President -- "the sole organ of the nation in its external
relations" -- must continually seek the means of developing
a bipartisan, Legislature-Executive consensus on America's
role in the world and the means of safeguarding that role.
As Congress increasingly enters the foreign policy realm it
too ) must recognize a greater responsibility for developing
such a consensus.
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." The people have grown to expect
leadership from the President not only in executing the laws
but also in presenting a legislative program to Congress for
consideration.
PRESERVATION COPY
- 14 -
Perhaps the most prominent of the President's legislative
powers is his qualified veto power. This power is qualified
in the sense that a bill returned by the President with his
disapproval can nonetheless be enacted by a two-thirds vote
of both Houses. The Framers accorded the President a veto
power for two purposes. First, the Framers recognized the
"propensity of the legislative department to intrude upon
the rights, and to absorb the powers, of the other
departments," and provided the President a veto so that he
could defend the prerogatives of his office. The second
purpose of the veto is as "an additional security against
the enactment of improper laws." As Hamilton wrote:
The primary inducement to conferring the power
in question upon the executive is to enable him
to defend himself; the secondary one is to in-
crease the chances in favor of the community
against the passing of bad laws, through haste,
inadvertence, or design.
The unique perspective the President can bring to bear in
reviewing legislation was recognized by Chief Justice Taft:
The President is a representative of the people
just as the members of the Senate and of the House
are, and it may be, at some times, on some subjects,
PRESERVATION COPY
- 15 -
that the President elected by all the people is
rather more representative of them all than are the
members of either body of the Legislature whose
constituencies are local and not countrywide.
The intent of the Framers in providing the President a
qualified veto power has been frustrated to a large extent
by the development of the Congressional practice of
combining various items in a single appropriations bill.
The Framers undoubtedly anticipated that Congress would pass
separate appropriations bills for discrete programs or
activities, and the President would be able to review each
program. Until about the time of the War Between the
States, this was the practice of Congress. Since that time,
however, Congress has increasingly combined various items of
appropriation in omnibus appropriations bills. This
practice makes it difficult for the President to discharge
the responsibility vested in him by the Framers, because he
cannot consider the individual items of appropriations
separately but must either veto or approve the package as a
whole. The President is thus prevented from using his veto
as the Framers intended, "to increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design."
PRESERVATION COPY
- 16 -
It is for this reason that we have proposed restoring the
Framers' original design through a constitutional amendment
granting the President line-item veto authority. The
constitutions of no fewer than 43 states grant some such
authority to the governor, and the experience at the state
level suggests a line-item veto would work well at the
Federal level.
The powers of the Presidency are limited powers, and the
President discharges his constitutional responsibilities in
a system according other powers to the coordinate branches
of the Legislature and the Judiciary. As the Supreme Court
has remarked, there is a "never-ending tension between the
President exercising the executive authority in a world that
presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no
one disputes embodies some sort of system of checks and
balances." The members of all three branches take an oath
to uphold the Constitution, and it is a tribute not only to
the genius of the Framers but also to the statesmanship of
those who have held office under the Constitution that the
system has worked as well as it has.
Thomas Jefferson called the Presidency "a splendid misery."
The Framers intended, as Hamilton wrote, that "the executive
should be in a situation to dare to act his own opinion with
PRESERVATION COPY
- 17 -
vigor and decision." The President has at his disposal the
advice of learned advisors, and he can consult with the
Congress, but the difficult and potentially momentous
decisions vested by the Constitution in the Executive are,
in the final analysis, his alone to make. Our most tested
President, Abraham Lincoln, announced a guide for making
those decisions that has not been improved upon:
I desire to conduct the affairs of this
Administration that if, at the end, when
I come to lay down the reins of power, I
have lost every other friend on earth, I
shall at least have one friend left, and
that friend shall be down inside of me.
As we prepare to commemorate the bicentennial of the
Constitution, let us honor the memory of the Framers who
drafted our blueprint for freedom, as well as those who,
like Lincoln, did not permit their dream to die. But let us
also recognize the workings of a greater force. The signers
of the Declaration of Independence acted with "a firm
reliance on the Protection of Divine Providence," and
Madison, reviewing the work of the Constitutional
Convention, noted that "It is impossible for the man of
pious reflection not to perceive in it a finger of that
Almighty hand which has been so frequently and signally
PRESERVATION COPY
- 18 -
extended to our relief in the critical stages of the
revolution. " What President Cleveland said on the occasion
of the centennial of the Constitution rings even truer
today:
When we look down upon 100 years and see the
origin of our Constitution, when we contemplate
all its trials and triumphs, when we realize how
completely the principles upon which it is based
have met every national need and national peril,
how devoutly should we say with Franklin, "God
governs in the affairs of men. "
PRESERVATION COPY
PRESERVATION COPY
Under Each,
of Harro
>
PRESERVATION COPY
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
7/10/84
ACTION/CONCURRENCE/COMMENT DUE BY: 7/12 - NOON
PROPOSED PRESIDENTIAL ARTICLE FOR NATIONAL FORUM MAGAZINE
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
McMANUS
MEESE
MURPHY
BAKER
OGLESBY
DEAVER
ROGERS
STOCKMAN
SPEAKES
DARMAN
P
SVAHN
FELDSTEIN
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
BAROODY
TUTWILER
HERRINGTON
ELLIOTT
HICKEY
McFARLANE
REMARKS:
Please provide any edits/comments to my office by 12:00 Noon on
Thursday, July 12. Thank you.
RESPONSE:
PRESERVATION COPY
Richard G. Darman
Assistant to the President
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
Alange number
foreign policy by the Executive. Over 100 separate
on
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
deployment of us Anned
foreign aid, intelligence operations, and the dispatch of
Forces alroad
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
PRESERVATION CODY
NSC comments
1984 JUL 12 M 2:57
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
demigrate the roteof of the
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
foreign policy by the Executive. Over 100 separate
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
foreign aid, intelligence operations, and the dispatch of
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
PRESERVATION COPY
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
- 13 -
bipartisan consensus. We need to restore the honorable
American tradition that partisan politics stops at the
water's edge. As Congress attempts to augment its foreign
policy role it must ensure that the result is not simply
multiple, and perhaps
voices
that America presents = discordant, cacophony to the world,
to the detriment of its security and interests. The
President -- "the sole organ of the nation in its external
relations" - must continually seek the means of developing
a bipartisan, Legislature-Executive consensus on America's
role in the world and the means of safeguarding that role.
As Congress increasingly enters the foreign policy realm it
too must recognize a greater responsibility for developing
such a consensus.
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." The people have grown to expect
leadership from the President not only in executing the laws
but also in presenting a legislative program to Congress for
consideration.
PRESERVATION COPY
Oglesby
PRESERVATION COPY
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
7/10/84
ACTION/CONCURRENCE/COMMENT DUE BY: 7/12 - NOON
PROPOSED PRESIDENTIAL ARTICLE FOR NATIONAL FORUM MAGAZINE
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
McMANUS
MEESE
MURPHY
BAKER
OGLESBY
DEAVER
ROGERS
STOCKMAN
SPEAKES
DARMAN
P
SVAHN
FELDSTEIN
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
BAROODY
TUTWILER
HERRINGTON
ELLIOTT
HICKEY
McFARLANE
REMARKS:
Please provide any edits/comments to my office by 12:00 Noon on
Thursday, July 12. Thank you.
RESPONSE: maybe all neighbonon
the Hire were take this to hear.
h. Resigner
Richard G. Darman
Assistant to the President
Ext. 2702
PRESERVATION COPY
THE WHITE HOUSE
1907 JUL 10 # 22
WASHINGTON
July 10, 1984
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
President's Article
The attached draft article has been submitted on behalf of
the President for inclusion in the upcoming issue of National
Forum magazine devoted to the bicentennial of the Constitution.
The issue will contain articles on the Constitution by
scholars and statesmen, including an article on the Supreme
Court by the Chief Justice, one on the Congress by the
Speaker of the House, and the instant article on the Presidency
by the President. I would appreciate whatever staffing of
the article you consider appropriate. Our office must
provide final comments to the editors by Friday, so we would
appreciate any suggestions by noon Thursday. Many thanks.
PRESERVATION COPY
The Declaration of Independence not only proclaimed our
freedom from Great Britain, it also set forth the principles
for which the Founding Fathers were willing to pledge their
lives, fortunes, and sacred honor: "that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." The battles of the
Revolution secured the independence proclaimed in the
Declaration; it remained for the revolutionaries to put the
ideals of liberty into practice. History has recorded many
tragic episodes that bear witness to President Filmore's
caution "that revolutions do not always establish freedom.' "
Our's did, largely because it was shortly followed by the
framing of the Constitution, what the great American
historian George Bancroft termed "the most cheering act in
the political history of mankind."
One of our more able statesmen and constitutional lawyers,
Daniel Webster, once wrote: "We may be tossed upon an ocean
where we can see no land -- nor, perhaps, the sun or stars.
But there is a chart and a compass for us to study, to
consult, and to obey. The chart is the Constitution." For
nearly two hundred years the Constitution has endured, with
relatively few amendments, as a blueprint for freedom.
PRESERVATION COPY
- 2 -
In commemorating the bicentennial of the Constitution we
celebrate not simply the historical event that took place in
Philadelphia on September 17, 1787, but the process by which
we govern ourselves today.
The very notion of self-government was novel when the
Framers embarked upon the experiment of the Constitution.
James Madison, in the Federalist Papers, found it necessary
to urge his fellow citizens not to oppose ratification of
the Constitution because of its novelty. Madison argued
that it was the glory of the American people that they were
we
not blindly bound to the past but willing to rely on "their
own good sense and experience in charting their course for
the future. "To this manly spirit posterity will be
indebted for the possession, and the world for the example,
his
of the numerous innovations displayed on the American
theater in favor of private rights and public happiness."
Madison's prediction has proved true. We are indebted to
the Framers for their brave willingness to govern
themselves, and the world is indebted to America for the
example it continues to provide of democratic
self-government. But while the Framers had to overcome the
fear of the new we must now equally fight against
complacency toward the old. There is the danger that a
people that has lived with freedom under law for two
PRESERVATION COPY
- 3 -
centuries may forget how rare and precious that condition
is.
An active and informed citizenry is necessary to the
effective functioning of our Constitutional system. As
Chief Justice John Marshall, who knew a thing or two about
the Constitution, once wrote, "the people make the
Constitution, and the people can unmake it. It is the
creature of their own will, and lives only by their will."
All of us have an obligation to study the Constitution and
actively participate in the system of self-government it
establishes. This is an obligation we owe not only to
ourselves and our posterity, but to the Framers, who risked
everything for freedom, and to the brave men and women
throughout our history who have preserved the Constitution,
often at the cost of their lives. There is no better time
than this bicentennial period to refamiliarize ourselves
with the Constitution, and rededicate ourselves to the
values it embodies.
The central challenge confronting the Framers of the
Constitution was to create a strong national government
without at the same time permitting that government to
threaten the liberties SO recently won. Experience under
the Articles of Confederation had demonstrated the
inadequacies of a weak government "destitute of energy," yet
the Framers' experience under the colonial rule of George
PRESERVATION COPY
- 4 -
III had demonstrated the threat posed by strong central
government. The challenge was to reconcile those two
experiences. As Madison wrote, the difficulty was "com-
bining the requisite stability and energy in government with
the inviolable attention due to liberty and to the republican
form. "
The solution embraced by the Framers was to diffuse the
national governmental authority. Power was to be shared
among separate institutions -- The Legislature, the
Executive, and the Judiciary -- in order that no single
branch could become SO powerful as to threaten the liberties
of the people. In considering the allocation of authorities
in the Constitution, it is important to keep in mind the
purpose of this considered allocation -- nothing less than
the preservation of liberty. This is what Hamilton meant
when he wrote that the unamended Constitution "is itself, in
every rational sense, and to every useful purpose, a bill of
rights." Our liberties have been preserved in large part
because of the allocation of powers in the Constitution.
This central fact -- that the unamended Constitution is
OF
itself a bill of rights, and that the allocation of powers
in the Constitution is preservative of liberty -- imposes a
special obligation on those who hold office under the
Constitution. Those officials must not only discharge their
responsibilities but must also respect the constitutional
restraints on their offices and, equally important, preserve
- 5 -
the constitutional prerogatives of their offices. Any
individual President is a trustee of the powers of the
office, and cannot yield those powers for expediency or any
other purpose. There may be times when a President would
prefer to have another branch make a difficult decision or
take action vested in the executive, or when a President
would be willing to countenance an intrusion on his powers
to achieve a particular result. At such times the Chief
Executive must recall that powers were allocated in the
Constitution not simply for efficiency but to preserve
liberty. In defending the Constitutional prerogatives of
the office the President is protecting liberty by fulfilling
the Framers' design.
The Framers looked primarily to the President to provide the
critical element of "energy" in the government. The problem
with the government of the Articles of Confederation was
that it was "destitute of energy." The drafters of the
Constitution redressed that problem by vesting in the
Executive "competent powers" to lead the Nation. As
Hamilton wrote:
PRESERVATION COPY
- 6 -
Energy in the executive is a leading character
in the definition of good government. It is
essential to the protection of the community
against foreign attacks; it is not less
essential to the steady administration of the
laws; to the protection of property against
those irregular and high-handed combinations
which sometimes interrupt the ordinary course
of justice; to the security of liberty against
the enterprises and assaults of ambition, of
faction, and of anarchy.
The President's popular mandate justified this grant of
authority. Other than the Vice President with whom he runs,
the President is the only official in our government elected
through a process involving all the voters. Only the
President can claim to speak for all the people, because, as
Hamilton wrote, his selection looks "in the first instance
to an immediate act of the people of America." The office
of President has "a due dependence on the people, and a due
responsibility."
PRESERVATION COPY
- 7 -
Perhaps the most pervasive responsibility of the President
is to administer the executive branch. The Framers of our
Constitution were practical men who recognized, as Hamilton
wrote, "that the true test of good government is its
aptitude and tendency to produce a good administration."
The people look ultimately to the President to ensure the
efficient performance of duty by the millions of federal
employees scattered among the various departments and
agencies across the land. I doubt that any of the Framers,
prescient as they were, could have imagined the size and
scope of today's Federal establishment. They nonetheless
afforded the Presidency the tools to meet the responsibility
vested in that office "to produce a good administration."
The key constitutional authority implementing the
President's responsibility for administration of the
government is his appointment power. The Constitution
provides that the President shall nominate, and by and with
the advice and consent of the Senate shall appoint, the
officers of the United States. The Framers gave the
President the responsibility to "take Care that the Laws be
faithfully executed," and gave him the power to appoint the
officers that assist him in discharging that responsibility.
In the landmark case of Myers V. United States, Chief
Justice Taft, a former President, wrote that it was a
"reasonable implication" from the President's obligation to
execute the laws that "he should select those who were to
PRESERVATION COPY
- 8 -
act for him under his direction in the execution of the
laws.' " The Chief Justice went on to recognize the principle
that the President's appointment power carried with it the
corollary power to remove those officers in whom he could no
longer place his confidence: "as his selection of
administrative officers is essential to the execution of
laws by him, SO must be his power of removing those for whom
he can not continue to be responsible." While there are
limited circumstances in which officers are not removable by
the President, the basic rule is that the President appoints
and may remove at will the officers of the United States.
This power, as the Framers recognized, is necessary if the
President is to be responsible for the faithful execution of
the laws and the provision of "a good administration."
The challenge confronting the modern Presidency is to
"produce a good administration" when the Federal
establishment has grown so far beyond anything the Framers
could have imagined. It is an amazing fact that there are
more Federal employees in America today than there were
people when the Framers drafted the Constitution. Perhaps
President Washington could play an active role in
supervising the details of the first administration; it is
now the responsibility of his successors to create the
mechanisms for control and coordination of the executive
PRESERVATION COPY
- 9 -
branch. One such mechanism is Executive Order 12291, which
I issued during my first month in office. Executive Order
12291 for the first time provided effective and coordinated
management of the regulatory process. Under the executive
order, all Federal regulations must be reviewed by the
Office of Management and Budget before being issued to
determine whether their social benefits will exceed their
social costs. The Administration has issued a comprehensive
statement of regulatory policy, and established procedures
to ensure that this policy is reflected in the actions of
individual agencies.
Other initiatives include the recent establishment of the
President's Council on Management Improvement, an
interagency committee charged with improving management and
administration throughout the Government; the continuing
efforts of the President's Council on Integrity and
Efficiency, established in 1981, to root out fraud, waste,
and mismanagement; and the comprehensive review of the
functioning of the Government undertaken by the President's
Private Sector Survey on Cost Control. Given the size and
scope of the Federal bureaucracy, the Framers' admonition
that the Executive "produce a good administration" requires
careful and continuous attention to regulatory and
management reform.
PRESERVATION COPY
- 10 -
At the same time, however, it is fitting to consider whether
the Federal Government is today trying to do too much. The
Framers did not vest in the national government the
responsibility of solving all the problems that might
confront the citizens of the Republic; the early Americans
were too jealous of their freedom to sanction such an
expansive view of central authority. It is the
responsibility of the President not only to manage
government efficiently, but also to offer leadership in
recognizing that spending by government must be limited to
those functions that are the proper responsibility of
government, and taxing by government must be limited to
providing revenue for legitimate government purposes.
The President has no more important responsibility under the
Constitution than the conduct of foreign affairs. As John
Marshall noted on the floor of the House of Representatives,
"The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations." In the famous Curtiss-Wright decision of 1936,
the Supreme Court agreed with Marshall's assessment: "In
this vast external realm, the President alone has the power
to speak or listen as a representative of the nation." The
President's powers in this area derive from the general
grant of executive power, and the more specific grants of
PRESERVATION COPY
- 11 -
authority to make treaties and appoint our ambassadors and
receive those of other nations, and his role as Commander in
Chief of the armed forces.
The Framers recognized that of the two democratic branches
only the Executive possessed the requisite attributes for
the successful conduct of foreign relations. Hamilton noted
in his description of the executive that "Decision,
activity, secrecy, and dispatch will generally characterize
the proceedings of one man in a much more eminent degree
than the proceedings of any greater member," and John Jay --
himself one of our most successful early diplomats -- argued
that "the President will have no difficulty to provide"
those qualities, though they were beyond the capability of a
basically deliberative body such as Congress. As Hamilton
argued, "The qualities
indispensible in the management of
foreign negotiations point out the executive as the most fit
agent in those transactions
"
When it came to the defense of the Nation, the Framers were
even more unambiguous. Hamilton, who served at General
Washington's side during the War of Independence, knew that
"the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a
single hand. The direction of war implies the direction of
the common strength; and the power of directing and
PRESERVATION COPY
- 12 -
employing the common strength forms a usual and essential
part in the definition of the executive authority." In the
areas of defense and foreign affairs the Nation must speak
with one voice, and only the President is capable of
providing that voice.
This is not to say that Congress has no role in the
development of foreign policy. On the contrary, the Framers
required the assent of two thirds of the Senators to a
treaty, and of course only Congress possesses the power to
declare war. Even beyond those defined roles the support of
Congress has been indispensable to an effective foreign
policy throughout our history.
The 1970s saw a rapid rise in Congressional efforts to
affect directly the formulation and implementation of
foreign policy by the Executive. Over 100 separate
prohibitions and restrictions on Presidential authority were
enacted in the areas of trade, human rights, arms sales,
foreign aid, intelligence operations, and the dispatch of
troops in times of crisis. Scholars and officials have
differing views on the constitutionality of several of these
initiatives. What is important to note, however, is that
efforts by Congress to participate in the development of
American foreign policy must be accompanied by a recognition
of the concomitant responsibility for the development of
PRESERVATION
- 13 -
bipartisan consensus. We need to restore the honorable
American tradition that partisan politics stops at the
water's edge. As Congress attempts to augment its foreign
policy role it must ensure that the result is not simply
that America presents a discordant cacophony to the world,
to the detriment of its security and interests. The
President -- "the sole organ of the nation in its external
relations" -- must continually seek the means of developing
a bipartisan, Legislature-Executive consensus on America's
role in the world and the means of safeguarding that role.
As Congress increasingly enters the foreign policy realm it
too must recognize a greater responsibility for developing
such a consensus.
Apart from the President's executive functions, the
Constitution accords him a significant role in the
legislative process. The President has not merely the power
but the duty "from time to time to give to the Congress
Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge
necessary and expedient." The people have grown to expect
leadership from the President not only in executing the laws
but also in presenting a legislative program to Congress for
consideration.
PRESERVATION COPY
- 14 -
Perhaps the most prominent of the President's legislative
powers is his qualified veto power. This power is qualified
in the sense that a bill returned by the President with his
disapproval can nonetheless be enacted by a two-thirds vote
of both Houses. The Framers accorded the President a veto
power for two purposes. First, the Framers recognized the
"propensity of the legislative department to intrude upon
the rights, and to absorb the powers, of the other
departments," and provided the President a veto so that he
could defend the prerogatives of his office. The second
purpose of the veto is as "an additional security against
the enactment of improper laws." As Hamilton wrote:
The primary inducement to conferring the power
in question upon the executive is to enable him
to defend himself; the secondary one is to in-
crease the chances in favor of the community
against the passing of bad laws, through haste,
inadvertence, or design.
The unique perspective the President can bring to bear in
reviewing legislation was recognized by Chief Justice Taft:
The President is a representative of the people
just as the members of the Senate and of the House
are, and it may be, at some times, on some subjects,
PRESERVATION COPY
- 15 -
that the President elected by all the people is
rather more representative of them all than are the
members of either body of the Legislature whose
constituencies are local and not countrywide.
The intent of the Framers in providing the President a
qualified veto power has been frustrated to a large extent
by the development of the Congressional practice of
combining various items in a single appropriations bill.
The Framers undoubtedly anticipated that Congress would pass
separate appropriations bills for discrete programs or
activities, and the President would be able to review each
program. Until about the time of the War Between the
States, this was the practice of Congress. Since that time,
however, Congress has increasingly combined various items of
appropriation in omnibus appropriations bills. This
practice makes it difficult for the President to discharge
the responsibility vested in him by the Framers, because he
cannot consider the individual items of appropriations
separately but must either veto or approve the package as a
whole. The President is thus prevented from using his veto
as the Framers intended, "to increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design." "
PRESERVATION COPY
- 16 -
It is for this reason that we have proposed restoring the
Framers' original design through a constitutional amendment
granting the President line-item veto authority. The
constitutions of no fewer than 43 states grant some such
authority to the governor, and the experience at the state
level suggests a line-item veto would work well at the
Federal level.
The powers of the Presidency are limited powers, and the
President discharges his constitutional responsibilities in
a system according other powers to the coordinate branches
of the Legislature and the Judiciary. As the Supreme Court
has remarked, there is a "never-ending tension between the
President exercising the executive authority in a world that
presents each day some new challenge with which he must deal
and the Constitution under which we all live and which no
one disputes embodies some sort of system of checks and
balances." The members of all three branches take an oath
to uphold the Constitution, and it is a tribute not only to
the genius of the Framers but also to the statesmanship of
those who have held office under the Constitution that the
system has worked as well as it has.
Thomas Jefferson called the Presidency "a splendid misery."
The Framers intended, as Hamilton wrote, that "the executive
should be in a situation to dare to act his own opinion with
PRESERVATION COPY
- 17 -
vigor and decision." The President has at his disposal the
advice of learned advisors, and he can consult with the
Congress, but the difficult and potentially momentous
decisions vested by the Constitution in the Executive are,
in the final analysis, his alone to make. Our most tested
President, Abraham Lincoln, announced a guide for making
those decisions that has not been improved upon:
I desire to conduct the affairs of this
Administration that if, at the end, when
I come to lay down the reins of power, I
have lost every other friend on earth, I
shall at least have one friend left, and
that friend shall be down inside of me.
As we prepare to commemorate the bicentennial of the
Constitution, let us honor the memory of the Framers who
drafted our blueprint for freedom, as well as those who,
like Lincoln, did not permit their dream to die. But let us
also recognize the workings of a greater force. The signers
of the Declaration of Independence acted with "a firm
reliance on the Protection of Divine Providence," and
Madison, reviewing the work of the Constitutional
Convention, noted that "It is impossible for the man of
pious reflection not to perceive in it a finger of that
Almighty hand which has been so frequently and signally
PRESERVATION COPY
- 18 -
extended to our relief in the critical stages of the
revolution. " What President Cleveland said on the occasion
of the centennial of the Constitution rings even truer
today:
When we look down upon 100 years and see the
origin of our Constitution, when we contemplate
all its trials and triumphs, when we realize how
completely the principles upon which it is based
have met every national need and national peril,
how devoutly should we say with Franklin, "God
governs in the affairs of men."
PRESERVATION COPY