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[JGR/Article on the Presidency - Notes, Drafts, Background] (4 of 4)
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[JGR/Article on the Presidency - Notes, Drafts, Background] (4 of 4)
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Records of the Office of Counsel to the President (Reagan Administration)
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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 -
Notes, Drafts, Background] (4 of 4)
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 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 ablest 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. As
we approach the bicentennial of the signing of the original
four pages of the Constitution, let us not only reflect on
the wisdom of the Framers but also rededicate ourselves to
the values embodied in the document they drafted for the
ages. For 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
9,
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
his
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 stronger 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 government.
The challenge was to reconcile those two experiences. and
create a government strong enough to serve the people, yet
not strong enough to become the master rather than the
servant of the people As Madison wrote, the difficulty was
"combining 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
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.
That allocation has kept government the servant rather than
the master of the people, and has accorded the people the
freedom to enjoy their rights.
5
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
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:
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. His just powers are derived from the consent of
the governed. 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
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.
7
renoval
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 inviolability of the President's responsibility to
execute the laws was further ensured by what has come to be
known as the "Incompatability Clause." In a sharp departure
from parliamentary systems, the Framers provided that "no
Person holding any Office under the United States, shall be
a member of either House during his Continuance in Office."
Article I, section 6. Those holding high office in the
executive branch -- indeed, the President himself -- may not
simultaneously serve in the Legislature. This ensures full
loyalty of the officers to the President, and firmly fixes
responsibility for the administration of government in the
President. It has guaranteed a clear line of demarcation
9
between the Legislature and the Executive leaving each to
its own responsibility in the Constitutional scheme.
The challenge confronting the modern Presidency is to
"produce a good administration" as the Framers intended when
the Federal establishment has grown so far beyond anything
the
Framers
they 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
branch. One such mechanism is Executive order 12291,
which of mind
During my first month in office, I issued an executive order
that constituted an important step in this direction
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
procedures
established the mechanisms to ensure that this policy is
reflected in the actions of individual agencies. The net
result has been that for the first time the Federal
10
Register, which records new regulatory actions, has grown
shorter for three consecutive years. 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 such careful and
continuous attention to regulatory and management reform.
whether
At the same time, however, it is fitting to consider if 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
f
congront 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
thos efunctions which are the proper responsibility of
11
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
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"
12
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
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.
13
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 and, 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, and a discussion of the legal issues is beyond
the scope of this article. 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 bipartisan consensus. We need to restore the
honorable American tradition that partisan politics stops at
the water's edge. The Framers recognized that effective
foreign policy demanded that the nation speak with one
voice As Congress attempts to augment its foreign policy
0
rule 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 realtions" -
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." Maticle II section 3 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. The responsibility
runs from the annual budget to substantive legislative
reform.
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. against
legislative encroachment. The second purpose of the veto is
15
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,
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 Supreme Court recently reiterated the importance of the
veto power in the Framers' design in the landmark case of
INS V. Chadha. That decision struck down the "legislative
veto" device, whereby Congress reserved to itself, one
House, or even a committee the authority to block agency
regulations. The Court, in an opinion by the Chief Justice
16
ruled that legislative vetoes were unconstitutional, in part
because they purported to permit Congress to act without
presenting its action to the President for approval or
disapproval. The Court ruled that this violated the
carefully devised scheme of the Framers.
Many had looked to the legislative veto as a possible means
of restoring control by the people's elected representatives
over the burgeoning Federal bureaucracy. That option is no
longer available, for as the Court noted however, arguments about
the officary
of the
The choices we discern as having been made in the
Registration
nots
Constitutional Convention impose burdens on govern-
not
dispanying
mental processes that often seem clumsy, inefficient,
the
even unworkable, but those hard choices were con-
Desegned
sciously made by men who had lived under a form of
fegilative
government that permitted arbitrary governmental
established by
the
Frances,
acts to go unchecked. There is no support in the
with it
Constitution or decisions of this Court for the
requirement
proposition that the cumbersomeness and delays
presentment
often encountered in complying with explicit
that Ale
Constitutional standards may be avoided, either
Predent
by the Congress or by the President.
opertainity
it
limitation
It can now be hoped that Congress, which can no longer
acts.
review particular agency action through the legislative
block
veto, will take greater care in delegating authority to
17
agencies in the first place. It is no longer possible for
longer
Congress to avoid the hard policy choices delegating vast
power to agencies with only vague guidance as to its
blocked by
exercise, with the reservation that particular agency
a
mt.
actions can be unilaterally reversed. The Chadha decision
also clarifies that the executive is solely responsible for
executive agency action, and heightens the responsibility of
the executive to ensure that such action is consistent with
the statutes authorizing the action.
]
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. When he must either block needed programs so that
wasteful ones will not be enacted, or permit wasteful ones
18
to slip through under the protective wing of needed
thus
programs, the President is 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."
It is for this reason that we have proposed restoring the
through
Framers' original design by passing a constitutional
ing
amendment to grant 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. II The President is charged with the faithful
execution of the laws, but Congress enacts the laws and
through its legislative authority directly affects the
President's ability to administer the Federal Government.
19
The President appoints the officers of the United States,
but Congress establishes the offices and the Senate must
approve the President's nominees to fill those offices. The
President is responsible for the conduct of American foreign
policy, but only Congress can declare war and the Senate
must approve treaties negotiated by the President And
while, as Justice Frankfurter noted, the Framers "did not
make the judiciary the overseer of our government," it has
been established at least since Marbury V. Madison that, in
an appropriate case, executive action is subject to judicial
review 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
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:
20
"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
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
21
have met every national need and national peril,
how devoutly should we say with Franklin, 'God
governs in the affairs of men. "