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Presidential Electronic Mail from the Automated Records Management System (ARMS)
Automated Records Management System (ARMS) Email from the White House Office (WHO) Bucket
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. email
From Lee Vermillion to Many Recipients Re: Fwd: FW: [Fwd: GI
11/01/2000
b(7)(C), b(7)(F), b(6)
JOE] [partial] (1 page)
COLLECTION:
Clinton Presidential Records
Automated Records Management System [Email]
WHO ([War Powers])
OA/Box Number: 500000
FOLDER TITLE:
[10/11/2000 - 11/04/2000]
2019-0154-F
in602
RESTRICTION CODES
Presidential Records Act - |44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA)
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute |(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information |(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA)
personal privacy |(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR: "LEXIS ("LEXIS /NEXIS Print Delivery" <[email protected]> (R) (R) [ UNKNOWN ]
)
CREATION DATE/TIME:11-OCT-2000 11:24:18.00
SUBJECT: LEXIS(R)-NEXIS(R) Email Request (711:0:15025014)
TO: Peter I. Belk ( CN=Peter I. Belk/OU=WHO/O=EOP [ WHO ])
READ:UNKNOWN
TEXT:
100297
Print Request: Current Document: 46
Time of Request: October 11, 2000 11:16 am EST
Number of Lines: 1405
Job Number: 711:0:15025014
Client ID/Project Name:
Research Information:
Law Reviews, Combined
(LEXIS-NEXIS Provided Search)
Note:
,
PAGE 1
46 of 100 DOCUMENTS
Copyright (c) 2000 The Trustees of The University of
Pennsylvania
University of Pennsylvania
May, 2000
148 U. Pa. L. Rev. 1637
LENGTH: 15247 words
POINT/COUNTERPOINT UNCHECKED PRESIDENTIAL WARS
Louis Fisher+
+ Senior Specialist in Separation of Powers, Congressional Research
Service, The
Library of Congress. Ph.D., New School for Social Research, 1967; B.S.,
College
of William and Mary, 1956. The author appreciates valuable comments by
David
Gray Adler, Neal Devins, and Charles Tiefer.
ELECTION 2000: POINT / COUNTERPOINT SERIES
Each issue of Volume 148 had included two essays on a subject related
to law
and the American political system in the form of a point/counterpoint
debate. We
developed this series in an effort to raise the level of civic discourse
during
an election cycle critical to our nation's future. Issues 1-4 featured
debates
about law professors and political advocacy; public financing of political
campaigns; urban sprawl; and public financing of political campaigns; urban
sprawl; and regulation guns as consumer products.
The election season has slipped into its pre-convention lull, yet the
underlying issues remain vibrant. We now offer the final exchange in our
series:
the proper constitutional role of the president in initiating military
actions.
In the past eight years, President Clinton has undertaken significant
military
actions against Panama, Somalia, Haiti, Bosnia, Yugoslavia, Afghanistan,
and
Sudan, without a single declaration of war from Congress. The participants
in
this discussion address whether presidential war powers today are
defensible
under the Constitution.
Louis Fisher, Senior Specialist in Separation of Powers for the
Congressional
Research Service of the Library of Congress, argues that presidential
powers in
committing the nation to war have grown far beyond the checks and balances
the
Framers intended. John C. Yoo, Professor of Law at the University of
California
at Berkely School of Law (Boalt Hall), responds that the Constitution
allows the
President to exercise significant initiative in war matters and goes on to
examine the constitutional implications of the increasing participation of
American forces in multilateral military actions. We hope you enjoy this
final
exchange in our point/counterpoint series.
TEXT:
[*1637]
,
PAGE 2
148 U. Pa. L. Rev. 1637, 1637
With studied care and deliberation, the Framers of the Constitution
created a
structure to prevent presidential wars. They specifically rejected the
British
model that allowed the monarch to take the country to war and to exercise
exclusive control over foreign policy. Making fundamental judgments about
representative government, popular control, and human nature, they placed
the
power of war and peace with the legislative branch and divided foreign
policy
between the President and Congress. For the most part, the Framers' model
prevailed from 1789 to 1950.
That constitutional system is in tatters. Because of presidential
initiatives
after World War 11 - aggravated by congressional acquiescence and judicial
passivity - there is no effective check on presidential wars. Presidents
claim
they can go to war wherever they like, for whatever reason, without seeking
authority from Congress. What the Framers feared and tried to avoid we now
have:
unilateral presidential warmaking.
President Truman's decision to go to war against North Korea in 1950
represented a subversion of the Framers' design. nl For the first time, a
president had involved the nation in a major war without seeking a
declaration
or authorization from Congress. Over the last decade, Congress has stayed
on the
sidelines watching Presidents George Bush and Bill Clinton engage
militarily
against Panama, Somalia, Haiti, Bosnia, Yugoslavia, Afghanistan, and Sudan.
Congress did authorize war against Iraq in 1991, but since that time the
scope
of [*1638] military operations against that country has been dictated by
presidents, not Congress.
Political developments over this past half century do little to support
the
Framers' expectation that each branch of government would protect itself by
fighting off usurpations and transgressions by other branches. The
contemporary
Congress has abdicated war powers that had been entrusted to the
legislative
branch - the people's representatives. The legislative check has been
reduced to
possibly taking some future action to deny funds for an unpopular war
started by
the President. The judicial check, for the most part, does not exist.
Part I of this Article addresses the Framers' design for the American
government, focusing on what they had learned from the colonial
governments and
the delegate debates over the use of checks and balances. Part II
discusses the
Framers' intent in giving Congress the power to initiate war. Part III
provides
a brief description of the Framers' model in practice while describing
instances, even before 1950, where presidents initiated the use of force
without
congressional approval. In Part IV, I analyze Professor John Yoo's
argument that
the Framers' intent was to give the President the initiative in war. Part V
focuses on the application of the War Powers doctrine to Kosovo and
presidential
reliance on U.N. Security Council resolutions and NATO decisions as
"authority."
I. The Framers' Design
The Framers believed that a powerful dynamic of institutional self-defense
would safeguard the structure of separation of powers and give life and
energy
to the system of checks and balances. They expected Congress to be
especially
vigilant in protecting the power to go to war. Their model worked for
about 160
years, but the record since 1950 reveals an alarming decline in
congressional
confidence and institutional self-esteem. Lawmakers regularly deride the
capacity of Congress to exercise its war and spending prerogatives. n2
What
,
PAGE 3
148 U. Pa. L. Rev. 1637, *1638
the Framers had in mind clearly is not working today. Citizens need to
understand what has happened, and why, and debate whether the original
constitutional principles are worth preserving.
James Madison argued in Federalist No. 51 that
the great security against a gradual concentration of the several
powers in
the same department, consists in giving to those who administer each
[*1639]
department the necessary constitutional means and personal motives to
resist
encroachments of the others. The provision for defense must in this, as in
all
other cases, be made commensurate to the danger of attack. Ambition must
be made
to counteract ambition. The interest of the man must be connected with the
constitutional rights of the place. n3
The core principle: each branch would defend its prerogatives. Madison
asked
how the partition of power among the three branches would be maintained.
Acknowledging that other systems had been inadequate, he stated that "the
defect
must be supplied, by so contriving the interior structure of the
government as
that its several constituent parts may, by their mutual relations, be the
means
of keeping each other in their proper places." n4
The Framers depended on a written constitution, representative
government,
and democratic pressures, but they wanted more. Madison agreed that a
"dependence on the people is, no doubt, the primary control on the
government;
but experience has taught mankind the necessity of auxiliary
precautions." n5
The auxiliary precautions: separation of powers, checks and balances, and
each
branch intent on safeguarding its institutional interests.
We have it from Woodrow Wilson that the makers of the Constitution
"followed
the scheme as they found it expounded in Montesquieu, followed it with
genuine
scientific enthusiasm." n6 James Bryce argued that the Framers "had for
their
oracle of political philosophy the treatise of Montesquieu on the Spirit of
Laws No general principle of politics laid such hold on the
constitution
-makers and statesmen of America as the dogma that the separation of these
three
functions is essential to freedom." n7 Montesquieu was indeed frequently
cited
at the Federal Convention and the state ratifying conventions, and Madison
praised him as "the celebrated Montesquieu" and the "oracle" who was always
consulted on the separation doctrine. n8
The American Framers did not borrow the separation doctrine [*1640]
from
Montesquieu, who presented a tidy, uncomplicated model of separate
branches,
free of partisan battles and the evolving cabinet system in England.
Montesquieu
promoted an idealized form of government, corresponding more to his
conceptions
- or misconceptions - than to the reality of British politics. n9 Justice
Holmes spoke bluntly of this contrivance: "His England the England of the
three-fold division of power into legislative, executive and judicial -
was a
fiction invented by him, a fiction which misled Blackstone and Delolme."
n10
For the most part, Montesquieu adhered to a strict separation of
powers. He
maintained that the legislative body should not impeach the executive, for
the
"moment he is accused or tried there is an end of liberty." nll He gave
his
"senate" (the house of nobles) the power to reject bills relating to
supplies
(funding), but no authority to amend them. n12 He allowed the executive
a veto
,
PAGE 4
148 U. Pa. L. Rev. 1637, *1640
to reject legislation but opposed any other participation in the
legislative
process. n13 On all those points, and others, the Framers rejected
Montesquieu. Yet they agreed on his fundamental premise that power must
check
power: "il faut que, par la disposition des choses, le pouvoir arrete le
pouvoir." n14
A. Lessons Learned at Home
Colonial governments in America accumulated their own insights into the
problem
of checks and balances. During this period, complaints about institutional
encroachments were common. After achieving their independence from
England, many
of the states wrote into their constitutions explicit guarantees for a
separation between the branches of government, but the meaning of
separation
varied [*1641] from state to state and became a source of continual
misunderstanding. For example, despite the strong language in the
Massachusetts
Constitution forbidding one department from exercising the powers of
another,
the executive possessed a qualified veto over the legislature; the senate
acted
as a court of impeachment; members of the judiciary were appointed by the
governor; and the legislature appointed the major generals of the militia,
an
advisory council for the governor, and several officers of the
administration.
n15
Other state constitutions announced separation in strict terms but
departed
from the maxim when necessary. New Hampshire, the last of the thirteen
states to
form a constitution, prudently acknowledged the gap between a literal
interpretation of separated powers and the demands of workable government.
The
three departments were to be kept "as separate from and independent of each
other, as the nature of a free government will admit, or as is consistent
with
that chain of connection that binds the whole fabric of the constitution
in one
indissoluble bond of union and amity." n16
In the months just before the Philadelphia Convention, Madison
identified for
Thomas Jefferson the essential elements of the new national government,
including a reorganization to provide for separate branches. Madison's
interest
in three branches was drawn more from administrative necessities than from
the
writings of Montesquieu. The Continental Congress had mismanaged its power
under
the Articles of Confederation, he told Jefferson, and administrative duties
under the new government would be even more demanding. n17 At the
convention,
Madison reminded the delegates that experience with the states had proved
"a
tendency in our governments to throw all power into the Legislative
vortex. The
Executives of the States are in general little more than Cyphers; the
legislatures omnipotent." n18 The separation set up in the state
constitutions
had turned out to be a matter of mere "parchment barriers" incapable of
preventing legislatures from drawing [*1642] other branches into their
orbit.
n19
After the convention had adjourned, Madison confided to Jefferson that
the
boundaries between the executive, legislative, and judicial powers,
"though in
general so strongly marked in themselves, consist in many instances of mere
shades of difference." n20 He set out in The Federalist Papers to
contrast the
overlapping of powers in the Constitution with the abstract and
impracticable
partitioning of powers advocated by some of the critics.
The bulk of Madison's analysis of the separation doctrine appears in
Federalist No. 47. He upheld the basic principle of the maxim that tyranny
,
PAGE 5
148 U. Pa. L. Rev. 1637, *1642
results whenever three branches are concentrated in the same hands, but he
charged that the maxim had "been totally misconceived and misapplied."
n21
Montesquieu, he said, could not possibly have meant that the three powers
of the
British government were actually kept separate. The executive magistrate
formed
a part of the legislative power by making treaties with foreign
sovereigns, and
he had a share in the judicial power by appointing the members of the
judiciary,
as well as by having the power to remove them. Moreover, one house of the
legislature formed a constitutional council for the executive, had judicial
power in the impeachment process, and was invested with the supreme
appellate
jurisdiction in all other cases. The judges could not vote in legislative
actions, but were permitted to participate in the deliberations. n22
Madison then turned to the state constitutions for further guidance,
pointing
out that in no instance were the departments of power in the states kept
absolutely separate and distinct. The intent of Montesquieu, Madison
concluded, could be no more than this: "that where the whole power of one department
is
exercised by the same hands which possess the whole power of another
department,
the fundamental principles of a free constitution are subverted." n23
[*1643]
B. Checks and Balances
By the late 1780s, the concept of checks and balances had gained
dominance over
the doctrine of separated powers, which one contemporary pamphleteer
called a
"hackneyed principle" and a "trite maxim." n24 Yet several delegates at
the
state ratifying conventions expressed shock at the degree to which the
Constitution had mingled the departments.
One delegate at the Virginia ratifying convention cried, "How is the
executive? Contrary to the opinion of all the best writers, blended with
the
legislative. We have asked for bread, and they have given us a stone."
n25 The
draft Constitution was attacked at the North Carolina ratifying convention
for
violating the maxim whereby the three branches "ought to be forever
separate and
distinct from each other." n26 Overlapping of departments also provoked
criticism in Pennsylvania. Opponents of the Constitution insisted that the
Senate's judicial power in impeachment, as well as the executive's power in
making treaties, constituted an "undue and dangerous mixture of the powers
of
government." n27 A lengthy quotation from Montesquieu was introduced to
demonstrate the dependence of freedom and liberty on a separation of
powers.
n28
These three states recommended the addition of a separation clause to
the
national bill of rights. Virginia offered draft language: "legislative,
executive, and judiciary powers of Government should be seperate [sic] and
distinct." n29 North Carolina and Pennsylvania submitted their own
versions of
a separation clause. n30 Congress compiled a tentative list of
restrictions on
the national government, among [*1644] which was the following:
The powers delegated by this Constitution are appropriated to the
departments to which they are respectively distributed: so that the
Legislative
Department shall never exercise the powers vested in the Executive or
Judicial,
nor the Executive exercise the powers vested in the Legislative or
Judicial, nor
the Judicial exercise the powers vested in the Legislative or Executive
PAGE 6
148 U. Pa. L. Rev. 1637, *1644
Departments. n31
This language was among seventeen constitutional amendments sent to the
Senate, which struck it from the list. A substitute amendment (to make the
three
departments "separate and distinct," and to ensure that the legislative and
executive departments would be restrained from oppression by "feeling and
participating the public burthens" through regular elections) was also
voted
down. n32 The Senate whittled the list of seventeen amendments down to
twelve.
Among the deleted amendments was the separation clause.
The Framers did not object to a sharing or partial intermixture of
powers.
They were not doctrinaire advocates of a pure separation of powers between
branches. Some overlapping was necessary to assure a vigorous system of
checks
and balances. They knew that the "danger of tyranny or injustice lurks in
unchecked power, not in blended power." n33
II. The War Prerogative
The Framers were particularly intent on vesting the power of initiating
war in
the Congress, as the people's representative. They were well aware of the
efforts of English kings to rely on extra-parliamentary sources of revenue
for
their military expeditions and other activities. Some of the
extra-parliamentary
revenue came from foreign governments; some came from private citizens.
Because
of these transgressions and encroachments of legislative prerogatives,
England
lurched into a bloody civil war and Charles I lost both his head and his
office. n34
[*1645]
A. Republican Principles
Joseph Story, who served on the Supreme Court from 1811 to 1845, wrote
about
the essential republican principle of vesting the decision to go to war in
the
representative branch:
The power of declaring war is not only the highest sovereign
prerogative; it is in its own nature and effects so critical and
calamitous,
that it requires the utmost deliberation, and the successive review of all
the
councils of the nations. War, in its best estate, never fails to impose
upon the
people the most burthensome taxes, and personal sufferings. It is always
injurious, and sometimes subversive of the great commercial,
manufacturing, and
agricultural interests. Nay, it always involves the prosperity, and not
unfrequently the existence, of a nation. It is sometimes fatal to public
liberty
itself, by introducing a spirit of military glory, which is ready to
follow,
wherever a successful commander will lead It should therefore be
difficult
in a republic to declare war; but not to make peace The co-operation
of all
the branches of the legislative power ought, upon principle, to be
required in
this the highest act of legislation
n35
The Framers deliberately divided government by making the President the
commander-in-chief and reserving to Congress the power to finance military
expeditions. The Framers rejected a government in which a single branch
could
PAGE 7
148 U. Pa. L. Rev. 1637, *1645
both make war and fund it.
In Federalist No. 69, Alexander Hamilton argued that the American
President
was far less threatening than the King of England. He explained that the
power
of the king "extends to the declaring of war and to the raising and
regulating
of fleets and armies." n36 In contrast, the Constitution placed those
powers
expressly with Congress. Jefferson praised this transfer of the war power
"from
the executive to the Legislative body, from those who are to spend to
those who
are to pay." n37 Madison warned against placing the power of
commander-in-chief in the same hands as the power to go to war:
Those who are to conduct a war cannot in the nature of things, be
proper or
safe judges, whether a war ought to be commenced, continued, or concluded.
They
are barred from the latter functions by a great principle in free
government,
analogous to that which separates the sword from the purse, or the [*1646]
power of executing from the power of enacting laws. n38
George Mason advised his colleagues at the Philadelphia Convention in
1787
that the "purse & the sword ought never to get into the same hands <whether
Legislative or Executive.>" n39
B. Rejecting the British Models
The Framers were aware that British models placed the power to initiate
war
with the monarch. John Locke's Second Treatise on Civil Government spoke of
three branches of government: legislative, executive, and "federative."
n40
The last consisted of "the power of war and peace, leagues and alliances,
and
all the transactions with all persons and communities without the
commonwealth." n41 The federative power (or what we would call foreign
policy
today) was "always almost united" with the executive. n42
Similarly, Sir William Blackstone, the great eighteenth-century jurist,
vested foreign policy and the war power exclusively with the monarch. In
his
Commentaries, he defined the King's prerogative broadly to include the
right to
send and receive ambassadors, to make war or peace, to make treaties, to
issue
letters of marque and reprisal (authorizing private citizens to undertake
military actions), and to raise and regulate fleets and armies. n43
Steeped in these models and theories, the Framers nonetheless vested in
Congress many of Locke's federative powers and Blackstone's royal
prerogatives.
At the Philadelphia Convention, Charles Pinckney said he supported "a
vigorous
Executive but was afraid the Executive powers of <the existing> Congress
might
extend to peace & war &c which would render the Executive a Monarchy, of
the
worst kind, towit [sic] an elective one." n44 James Wilson supported a
single
[*1647] executive but "did not consider the Prerogatives of the British
Monarch
as a proper guide in defining the Executive powers. Some of these
prerogatives
were of a Legislative nature. Among others that of war & peace &c." n45
Edmund Randolph worried about executive power, calling it "the foetus of
monarchy." n46 The delegates to the Philadelphia Convention, he said,
had "no
motive to be governed by the British Governmt. [sic] as our prototype."
n47
Wilson agreed that the British model "was inapplicable to the situation of
this
Country; the extent of which was so great, and the manners so republican,
that
,
PAGE 8
148 U. Pa. L. Rev. 1637, *1647
nothing but a great confederated Republic would do for it." n48 Drafts
allocated the powers over foreign affairs and war that Locke and
Blackstone had
given to the monarch either exclusively to Congress or shared between the
President and the Senate (as with the treaty and appointment powers). n49
The one exception to this pattern of legislative control was the
discretion
left to the President to repel sudden attacks. An early draft empowered
Congress
to "make war." n50 Charles Pinckney objected that legislative proceedings
"were too slow" for the safety of the country in an emergency since he
expected
Congress to meet but once a year. n51 Madison and Elbridge Gerry moved to
insert "declare" for "make," leaving the President with "the power to repel
sudden attacks." n52 Their motion carried. n53 The duty to repel sudden
attacks represented an emergency measure that permits the President to take
actions necessary to resist sudden attacks against the United States. This
discretionary authority did not extend to taking the country into
full-scale war
or to mounting an offensive attack against other nations. As John Bassett
Moore,
a noted scholar of international law, remarked:
There can hardly be room for doubt that the Framers of the
constitution,
[*1648] when they vested in Congress the power to declare war, never
imagined
that they were leaving it to the executive to use the military and naval
forces
of the United States all over the world for the purpose of actually
coercing
other nations, occupying their territory, and killing their soldiers and
citizens, all according to his own notions of the fitness of things, as
long as
he refrained from calling his action war or persisted in calling it
peace. n54
Responses to the Madison-Gerry amendment reinforce the narrow grant of
authority to the President. Pierce Butler wanted to give the President the
power
to make war, but other delegates strongly objected. As demonstrated by the
debate below, these objecting delegates supported "clogging rather than
facilitating war." n55 When it was necessary to engage in war, that
decision
would be made by Congress, not the President:
Mr [Pierce] Butler He was for vesting the [war] power in the
President,
who will have all the requisite qualities, and will not make war but when
the
Nation will support it
Mr Sharmen [Sherman] thought it stood very well. The Executive shd. be
able
to repel and not to commence war. "Make" better than "declare" the latter
narrowing the power too much.
Mr Gerry never expected to hear in a republic a motion to empower the
Executive alone to declare war.
Mr. Elseworth [Ellsworth]. there is a material difference between the
cases
of making war, and making peace. It shd. be more easy to get out of war,
than
into it
Mr. Mason was agst giving the power of war to the Executive, because not
<safely> to be trusted with it; or to the Senate, because not so
constructed as
to be entitled to it. He was for clogging rather than facilitating war;
but for
facilitating peace.
n56
PAGE 9
148 U. Pa. L. Rev. 1637, * 1648
At the Pennsylvania ratifying convention, James Wilson expressed the
prevailing sentiment that the system of checks and balances
will not hurry us into war; it is calculated to guard against it. It
will
not be in the power of a single man, or a single body of men, to involve
us in
such distress; for the important power of declaring war is vested in the
[*1649] legislature at large. n57
Similar comments were made by delegates to the North Carolina and South
Carolina ratifying conventions. n58
C. Associated War Powers
Through the granting of letters of marque and reprisal, sovereigns were
able to
authorize private citizens to wage war on other countries. By turning to
citizens (or privateers), nations could augment their armies and navies and
respond more swiftly and with greater force to emergencies and threats.
Privately owned vessels were authorized to prey on foreign vessels and take
plunder, or "prizes." The phrase "letters of marque and reprisal" came to
refer
to any use of force short of a declared war.
Unlike Blackstone, who recognized that the king had the power to issue
letters of marque and reprisal, the Framers transferred that responsibility
solely to Congress and associated it with the power to declare war. The
Constitution grants Congress the power "to declare war, grant letters of
Marque
and Reprisal, and make rules concerning Captures on Land and Water." n59
Any
initiation of war, whether by declaration or by marque and reprisal, was
reserved to Congress. Thus, both general and limited wars were left to the
decision of the representative branch. In 1793, Secretary of State Thomas
Jefferson related marque and reprisal to the power to wage war. The making
of a
reprisal on a nation, he said, "is a very serious thing When reprisal
follows it is considered as an act of war, & never yet failed to produce
it in
the case of a nation able to make war." n60 If it became necessary to
invoke
this power, "Congress must be called on to take it; the right of reprisal
being
expressly lodged with them by the constitution, & not with the
executive." n61
During the Quasi War against France, from 1798 to 1800, Congress
authorized
private citizens to provide vessels and other military assistance.
Alexander
Hamilton, always protective of executive power, recognized that the
Constitution
vested in Congress exclusive power [*1650] over reprisals. In the midst
of
hostilities, the President could repel force by force, but any actions
beyond
those measures "must fall under the idea of reprisals & requires the
sanction of
that Department which is to declare or make war." n62 Congress also
authorized
letters of marque during the War of 1812, but has not done so since that
time.
Signatories to the Declaration of Paris, after the Crimean War in 1856,
renounced the use of letters of marque.
Seven clauses within Article I of the Constitution vest war powers in
Congress. Clause 11 empowers Congress to declare war, grant letters of
marque
and reprisal, and make rules concerning captures on land and water.
Clauses 12
and 13 empower Congress to raise and support armies and provide and
maintain a
PAGE 10
148 U. Pa. L. Rev. 1637, *1650
navy. Clauses 14, 15, and 16 authorize Congress to make rules for the
government
and regulations of the land and naval forces, to call forth the militia,
and to
provide for the organizing, arming, and disciplining of the militia. At
the top
of the list stands Clause 10, which empowers Congress "to define and punish
Piracies and Felonies committed on the high Seas, and Offences against the
Law
of Nations." n63
This cluster of powers broke with prevailing theories that placed war
powers,
foreign affairs, and judgments on the law of nations with the Executive.
Blackstone, for example, regarded the law of nations as part of the king's
power. The law of nations consisted of "mutual compacts, treaties,
leagues, and
agreements" between various countries. n64 It was the king's prerogative
to
make treaties, leagues, and alliances with foreign states.
At the Philadelphia Convention, Madison emphasized the importance of
drafting
a constitution that would "prevent those violations of the law of nations
& of
Treaties which if not prévented must involve us in the calamities of
foreign
wars." n65 One of the early statutes passed by Congress was legislation
in
1790, setting forth punishments for certain crimes against the United
States.
n66 One provision established fines and imprisonment for any person who
attempted to prosecute or bring legal action against an ambassador or other
public minister [*1651] from another country. n67 Persons who took such
actions were deemed "violators of the laws of nations" who "infract the
law of
nations." n68 Actions against ambassadors and public ministers "tend[
to
provoke the resentment of the sovereign whom the ambassador represents,
and to
bring upon the state the calamities of war." n69
The Neutrality Act of 1794 n70 gave the Washington administration the
legal
footing it needed to fine and imprison American citizens whose actions
might
have embroiled the United States in the war between France and England.
Almost
two centuries later a district judge noted that one of the major purposes
of the
Neutrality Act "was to protect the constitutional power of Congress to
declare
war or authorize private reprisal against foreign states." n71
D. Presidential Fame
The Framers gave Congress the power to initiate war because they believed
that
presidents, in their search for fame and personal glory, would have an
appetite
for war. n72 John Jay warned in Federalist No. 4 that
absolute monarchs will often make war when their nations are to get
nothing
by it, but for purposes and objects merely personal, such as a thirst for
military glory, revenge for personal affronts, ambition, or private
compacts to
aggrandize or support their particular families or partisans. These and a
variety of other motives, which affect only the mind of the sovereign,
often
lead him to engage in wars not sanctified by justice or the voice and
interests
of his people. n73
Writing in 1793 under the name "Helvidius," Madison called war
the true nurse of executive aggrandizement.. In war, the honours and
emoluments of office are to be multiplied; and it is the executive
patronage
,
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148 U. Pa. L. Rev. 1637, * 1651
under which they are to be enjoyed. It is in war, finally, that laurels
are to
be gathered; and it is the executive brow they are to encircle. [*1652]
The
strongest passions and most dangerous weaknesses of the human breast;
ambition,
avarice, vanity, the honourable or venial love of fame, are all in
conspiracy
against the desire and duty of peace. n74
Jay and Madison reflected Enlightenment libertarian principles that
looked
with suspicion upon the monarchical appetite for initiating war to satisfy
fame
and personal glory. n75 A republican government relying on the consent
of the
people would embark on war with much greater caution and circumspection.
Madison
insisted that war should only be declared "by the authority of the people,
whose
toil and treasure are to support its burdens." n76
III. The Framers' Model in Practice
The Framers' model for constitutional government and democratic control
worked
well for about 160 years. Of course, the balance of power between Congress
and
the President fluctuated from decade to decade, depending on who served in
the
White House and what kind of political conditions temporarily upset the
distribution of power. But Congress was fairly consistent in protecting
its war
power. There was no wholesale delegation or abdication.
A. To Declare or Authorize
For all of the major military actions, Congress either declared war or
authorized it. A declaration of war was used for the War of 1812 against
England, the War of 1846 against Mexico, the Spanish-American War of 1898,
World
War I, and World War II. n77 There were two declarations for World War I
(Germany and Austria-Hungary) and six separate declarations for World War
II
(Japan, Germany, Italy, Bulgaria, Hungary, and Rumania). n78 On other
occasions, Congress used the statutory process to authorize war, as with
the
"Quasi-War" with France from 1798 to 1800 and the Barbary wars during the
Jefferson [*1653] and Madison administrations. n79 Similarly, Congress
passed legislation authorizing military action in the Indian wars and the
Whiskey Rebellion. n80
During these early decades, presidents and executive officials uniformly
acknowledged the need to come to Congress for authority to support anything
other than purely defensive operations. President George Washington
understood
that existing statutory authority, giving him access to the militia to
protect
inhabitants of the frontiers, permitted only defensive actions against
hostile
Indian forces. Any step beyond defensive actions required authorization
from
Congress. n81 Secretary of War Henry Knox told territorial governors that
until Congress decided otherwise, military operations were to be confined
to
"defensive measures." n82 The direction of offensive operations had to
await
the decision of Congress, which was "solely...vested with the powers of
War."
n83 Knox said that Congress was "alone competent to decide upon an
offensive
war " n84
In proposing military action against France in the Quasi-War, President
John
Adams never argued that he could act unilaterally. He knew that he was
required
to seek authority from Congress which had enacted several dozen statutes
increasing the size of the military and [*1654] reinforcing the defense
of
ports and harbors. n85 President Jefferson was willing to take certain
,
PAGE 12
148 U. Pa. L. Rev. 1637, *1654
defensive actions against the Barbary pirates but told Congress that he
was"
unauthorized by the Constitution, without the sanction of Congress, to go
beyond
the line of defense." n86 He believed that it was up to Congress to
authorize
"measures of offence also." n87 In at least ten statutes, Congress
authorized
Presidents Jefferson and Madison to take military actions against the
Barbary
powers. n88
No doubt Jefferson's message to Congress omitted many details of what
happened in the Mediterranean. n89 The essential legal point is that he
went
to Congress to seek statutory authority. He did not claim an independent
and
exclusive power to go to war. In 1805, when conflicts arose between the
United
States and Spain, Jefferson spoke plainly about constitutional principles:
"
Congress alone is constitutionally invested with the power of changing our
condition from peace to war...." n90
Certainly presidential powers expanded in ways unexpected by the
Framers,
particularly after presidents had a standing army and could move troops
into
disputed areas to provoke war, as President Polk did with Mexico. Polk was
intent on gaining from Mexico the territories known as Upper California
and New
Mexico. Through a series of diplomatic and military initiatives, he was
able to
bring about a military clash between American and Mexican troops and tell
Congress that "war exists." n91 Although some legislators objected to
Polk's
tactics, Congress declared war based on the recognition that "a state of
war
exists." n92 Polk never pretended that he could go to war against another
[*1655] country without asking Congress for authority.
Even during the crisis period of the Civil War, when President Lincoln
exercised extraordinary power while Congress was in recess, he recognized
that
some of his actions (particularly suspending the writ of habeas corpus)
were
probably in excess of his constitutional authority. Lincoln operated under
what
John Locke called the "prerogative": the executive power to act "according
to
discretion for the public good, without the prescription of the law and
sometimes even against it." n93 In the hands of an indiscriminate and
unprincipled executive this formula can lead to autocracy, but Lincoln was
not
inclined to be a dictator.
When Congress returned he explained that his actions, "whether strictly
legal
or not, were ventured upon under what appeared to be a popular demand and a
public necessity, trusting then, as now, that Congress would readily ratify
them." n94 He conceded that he had acted not only under his Article II
powers
but under the Article I powers of Congress as well. He believed that
suspending
the writ of habeas corpus was not "beyond the constitutional competency of
Congress." n95 Congress debated at length his request for retroactive
authority. Legislators ended up supporting the President, but argued for an
assumption that his actions were illegal. n96 Legislation was passed
approving, legalizing, and making valid "all the acts, proclamations, and
orders
of the President as if they had been issued and done under the previous
express authority and direction of the Congress of the United States."
n97
B. Unauthorized Presidential Actions
From 1789 to 1950, presidents used military force unilaterally numerous
times
without seeking or obtaining the authority of Congress. Those ventures,
however,
were relatively modest in scope and limited in duration. As Edward S.
Corwin
noted, these presidential initiatives consisted largely of "fights with
pirates,
PAGE 13
148 U. Pa. L. Rev. 1637, *1656
landings of small naval [*1656] contingents on barbarous or
semi-barbarous
coasts, the dispatch of small bodies of troops to chase bandits or cattle
rustlers across the Mexican border, and the like." n98 They are,
however, in
no sense a precedent for the single-handed presidential actions taken after
World War II, such as Truman's war against North Korea, Bush's claim in
1990
that he could go to war against Iraq without congressional authority, and
Clinton's repeated use of military force in Bosnia, Yugoslavia, Iraq,
Haiti,
Sudan, and Afghanistan without ever seeking authority from Congress.
Lists have been compiled to show that presidents have resorted to force
against other countries hundreds of times with Congress neither declaring
war
nor authorizing military action. n99 Many of these operations were
minor, such
as American forces building a fort on the Marquesas Islands in 1813-1814 to
protect three prize ships captured from the British; brief landings in
Cuba in
1823 in pursuit of pirates; an 1840 landing on the Fiji Islands to punish
natives for attacking American exploring and surveying parties; a display
of
naval force in Japan in 1853-1854; another display of naval force off of
Turkey
in 1858-1859; the landing of a naval party in Buenos Aires in 1890 to
protect
the U.S. consulate and legation; the landing of U.S. forces in Beirut in
1903 to
protect the American consulate; and the sending of troops to Panama in
1912 to
supervise elections outside the Canal Zone. n100 Additionally, many of
those
actions were initiated by military commanders, not by presidents. n101
Some of the military interventions were much more significant but would
hardly serve as a model for U.S. policy today. For example, in 1854 an
American
ship was ordered to the Nicaraguan port of Greytown (now San Juan del
Norte) to
compel local authorities to make appropriate amends for an affront to an
American diplomat. When U.S. officials deemed the offered apology
inadequate,
the ship bombarded the town and forces were sent ashore to destroy by fire
[*1657] whatever remained. n102 A number of other military operations,
including the occupation and bombardment of Veracruz in 1914; the
intervention
and occupation of Haiti from 1915 to 1934; an eight-year occupation of the
Dominican Republic, beginning in 1916; and repeated interventions in
Nicaragua
from 1909 to 1933 would be condemned, both under the non-intervention
policy of
the Organization of American States ("OAS") n103 and the U.N. Charter,
which
proscribes "the threat or use of force against the territorial integrity or
political independence of any state." n104
IV. Scholarly Analysis
Questions about the Framers' intent invariably cause scholars to scatter
and
divide. Not so with the war power. There is remarkable agreement among war
power
experts that the Framers broke with available monarchical precedents and
vested
in Congress the sole power to initiate hostilities against other nations.
A. Consensus Among Scholars
The majority of scholars agree on the interpretation of the war power.
Taylor
Reveley writes that if you could ask a man in the state of nature to read
the
war power provisions in the Constitution and compare them to war power
practices
after 1789, "he would marvel at how much Presidents have spun out of so
little.
On its face, the text tilts decisively toward Congress." n105 Charles
Lofgren
agrees with Reveley finding that the grants of power to Congress to
declare war
and to issue letters of marque and reprisal "likely convinced
contemporaries
even further that the new Congress would have nearly complete authority
over the
PAGE 14
148 U. Pa. L. Rev. 1637, *1657
commencement of war." n106 He concludes that events in the years
following
ratification of the Constitution reinforced [*1658] the view that
Americans
"originally understood Congress to have at least a coordinate, and
probably thedominant, role in initiating all but the most obviously defensive wars,
whether
declared or not." n107
John Hart Ely notes that when academics try to divine the "original
understanding" of the Constitution, the results can be "obscure to the
point of
inscrutability." n108 When the focus turns on the war power, however, the
issue is not that complicated. All wars, big or small, declared or
undeclared,
"had to be legislatively authorized." n109 David Gray Adler writes that
the
Constitution "makes Congress the sole and exclusive repository of the
ultimate
foreign relations power - the authority to initiate war." n110
Michael Glennon says that it "is clear that the Constitution's textual
grants
of war-making power to the President are paltry in comparison with, and are
subordinate to, its grants to Congress." nill He further notes that
there "is
no evidence that the Framers intended to confer upon the President any
independent authority to commit the armed forces to combat, except in
order to
repel "sudden attacks." n112 Harold Koh writes in a similar fashion
noting
that "the first three articles of the Constitution expressly divided
foreign
affairs powers among the three branches of government, with Congress, not
the
president, being granted the dominant role." n113 The Framers "pointedly
denied" the President other grants of power, such as the power to declare
war,
"thereby rejecting the English model of a king who possessed both the
power to
declare war and the authority to command troops." n114
B. John Yoo's Work
The major exception to these studies is an article written in 1996 by
John Yoo,
who argues that the Framers designed a system to "encourage [*1659]
presidential initiative in war." n115 Yoo argues that not only would the
executive "play the leading role in initiating war" but also that "the
Constitution gives the President the initiative in war." n116 Yet at
times Yoo
backs away from that position by saying the Declare War Clause "made clear
that
the President could not unilaterally take the nation into a total war."
nl 17
Also, he claims that Madison "quite presciently wanted to prevent the
President
from using his war power to enhance his overall power and importance
vis-a-vis
Congress and the People." n118
1. Defensive-Offensive
Yoo does not carefully distinguish between the exercise of the President's
defensive powers and the initiation of offensive actions against another
country. nl 19 Taking the United States from a state of peace to a state
of war
was a prerogative assigned exclusively to Congress. He makes no mention of
the
understanding by President Washington, Secretary of War Knox, President
Jefferson, and other executive leaders of that time that the President's
powers
over war were restricted to defensive operations.
In The Prize Cases of 1863, n120 the Supreme Court spoke clearly
about the
President's authority to conduct defensive but not offensive actions.
Justice
Grier said that President Lincoln had authority to take military action in
a
civil war "without waiting for Congress to baptize it with a name" n121
but
carefully stated that the President "has no power to initiate or declare a
war
,
PAGE 15
148 U. Pa. L. Rev. 1637, *1659
either against a foreign nation or a domestic State." n122 The executive
branch took exactly the same position in that case. During oral argument
Richard
Henry Dana Jr., representing the United States, said that Lincoln's action
in
responding to the Civil War had nothing to do with "the right to initiate
a war,
as a voluntary act [*1660] of sovereignty. That is vested only in
Congress."
n123
Yoo never mentions Chief Justice Marshall's remark in Talbot V. Seeman
that
"the whole powers of war" are vested in Congress. n124 Nor does Yoo
discuss
United States V. Smith, an 1806 circuit court case, which asked and
answered its
own question: "Does [the President] possess the power of making war? That
power
is exclusively vested in congress [It is] the exclusive province of
congress
to change a state of peace into a state or war." n125 Harold Koh makes
this
comment about Smith: "the crucial point is that even during America's
infancy,
the time of its greatest national insecurity, foreign affairs were not
treated
as exempt from the ordinary constitutional system of checks and balances."
n126
2. Declare War Clause
Yoo concludes that the Declare War Clause is of legislative-judicial, not
legislative-executive, interest. Thus, the Framers "understood the Declare
War
Clause as a judicial power vested in Congress, just as the Constitution
gave the
Senate judicial authority in the trial of impeachments. In these areas, the
Constitution places Congress in the position of the court of last resort."
n127 The Declare War Clause, Yoo argues,
does not add to Congress' store of war powers at the expense of the
President. Rather, the Clause gives Congress a judicial role in declaring
that a
state of war exists between the United States and another nation, which
bears
significant legal ramifications concerning the rights and duties of
American
citizens. Congress' power to declare war also has the additional effect of
ousting the courts from war powers disputes n128
By reading the Declare War Clause as not affecting presidential power,
Yoo
ignores concerns raised at the Philadelphia Convention and the ratification
conventions. The issue, as James Wilson defined it, was about keeping the
power
of war out of the hands of "a single man." n129 Yoo does not address
Wilson's
comment in the text of his article. Instead, it is relegated to a long
footnote, n130 and Wilson becomes [*1661] "exceptional rather than
typical." n131 Yoo dilutes Wilson's views by saying they "appear[ ] to
refer
to the formal aspects of a declaration of war, rather than to the
authorizing
process for the commencement of hostilities." n132 Nothing in Wilson's
address
at the Pennsylvania ratifying convention would suggest such a narrow
construction. Wilson wanted a political system that "will not hurry us
into war.
" n 133 He advocated legislative deliberation, not quick executive
action. His
remarks support full legislative debate, whether that leads to a formal
declaration or authorization. Although Yoo attempts to confine Wilson's
comments
about "a single man" to total war, he concedes that later in his life
Wilson
continued to believe that Congress "should play the paramount role in war."
n134
Yoo attempts to weaken the meaning of the Declare War Clause by saying
it was
,
PAGE 16
148 U. Pa. L. Rev. 1637, *1661
intended to clarify that "the declaration of war was a power of the
national
government, not the state governments." n135 If that were the purpose,
why not
(following British precedents) give the power to declare war to the
President?
That would solve the federalism issue.
Relying on Madison's Federalist No. 41, Yoo states that "the [Declare
War]
Clause was designed to allow the national government to provide "security
against foreign danger." n136 Responding to foreign threats and attacks
is
part of the President's duty to act in a defensive manner and is unrelated
to
initiating war or taking the country from a state of peace to a state of
war.
Similarly, Yoo states that "a declaration of war was unnecessary when a
nation
was under attack[, providing] further evidence that declarations of war
were
legally formal, or even ceremonial, in purpose," and that understanding was
"consistent with the theory of international law that a declaration of war
was
unnecessary for a nation under attack." nl37 Yoo's discussion relates to
defensive, not offensive, actions. Yoo refers to Hamilton's statement in
Federalist No. 23 about the need for the national government to be able to
"respond to unpredictable events and foreign dangers." n138 Notice that
Hamilton is talking about the necessity of the national government's,
[*1662]
not merely the President's, ability to respond to foreign attacks rather
than
initiate war. Hamilton's comments, therefore, also relate to defensive
operations. Yoo quotes from Madison's Federalist No. 41: "It is in vain to
oppose constitutional barriers to the impulse of self-preservation."
n139 Once
again, the discussion relates to defensive, as opposed to offensive,
activity.
3. Judicial Review
Yoo argues that the Declare War Clause had the effect of "ousting the
courts
from war powers disputes." n140 "Having placed war powers in the arena of
politics, the Framers would have viewed inter-branch disputes in the area
as
unsuitable for judicial resolution." n141 The courts, however, did not
shy
away from war powers disputes. Decisions by the Supreme Court in 1800 and
1801,
and by the circuit court in 1806, demonstrate a willingness to decide war
power
issues, n142 even though they were not "inter-branch disputes" because
they
did not involve direct clashes between Congress and the President.
In Little V. Barreme, however, Chief Justice Marshall, writing for the
Court,
concluded that a congressional statute superceded a presidential
proclamation.
n143 In a footnote, Yoo states that the Court in Little "did not
really...pass
judgment on the exercise of war powers, and thus did not present a
political
question." n144 In fact, the Court did pass judgment on the war power by
holding that a statute trumps a presidential proclamation. Yoo further
writes:
"Little never reached questions concerning the justiciability of
inter-branch
war powers disputes, or the President's inherent authority to order
captures
going beyond [*1663] Congress's commands." n145 The Court did address
an
inter-branch dispute, however, and it dismissed any notion that President
Adams
had some kind of inherent authority that was superior to a congressional
statute. At best, Chief Justice Marshall concedes that Adams might have
taken
certain measures in the absence of a congressional statute. n146
Yoo writes that "no provision [of the Constitution] explicitly
authorizes the
federal courts to intervene directly in war powers questions." n147 Of
course,
the same could be said about the Commerce Clause, the Taxing Power, and
other
constitutional provisions. The Court's jurisdiction does not depend on
subject
matter, except regarding disputes concerning treaties, ambassadors, "other
PAGE 17
148 U. Pa. L. Rev. 1637, *1663
public Ministers and Consuls," admiralty, and disputes between states,
states
and citizens, and states and foreign states. n148 The Court's
jurisdiction
reaches beyond these subject areas to embrace all "cases" and
"controversies."
4. Declaration and Authorization
Yoo focuses almost exclusively on Congress's power to declare war, rarely
recognizing the power of Congress to authorize war. He begins by pointing
out
that "Congress has issued a declaration of war only five times in its
history"
and that the post-1945 era includes "a litany of undeclared wars." n149
Counting the multiple declarations in the two world wars, there have
actually
been eleven declarations of war. Later Yoo recognizes that "for much of the
nineteenth and early twentieth centuries, Congress assented to
presidential uses
of force abroad," n150 but does not explain that Congress's "assent"
came in
the form of authorizing statutes.
For example, Yoo states that "even though no declaration of war had
issued
against the Indians, George Washington exclaimed, "But, we are involved in
actual war!" n151 Washington was operating on statutory authority, not
inherent executive power. In 1789, 1790, and 1791, Congress passed
legislation
"for the purpose of protecting the [*1664] inhabitants of the frontiers
of the
United States from the hostile incursions of the Indians." n152 In 1793,
Washington said that any offensive operation against the Creek Nation must
await
congressional action: "The Constitution vests the power of declaring war
with
Congress; therefore no offensive expedition of importance can be undertaken
until after they shall have deliberated upon the subject, and authorized
such a
measure." n153
Yoo does refer to the Quasi-War against France and the "full-scale
battles"
that occurred despite the lack of a declaration of war. n154 There were,
however, about two dozen statutes authorizing Adams to act as he did
during that
war. n155 Yoo argues that "Congress' failure to declare war against
France
also demonstrates the limited nature of the conflict." n156 There was no
"failure" on the part of Congress. It chose to authorize, not declare,
war, and
it was the nature of this authorization (supporting naval but not land
forces)
that kept the war limited.
Yoo states that the Framers "were not excessively worried by the
prospect of
unilateral executive action. The President was seen as the protector and
representative of the People." n157 This statement ignores what Jay, in
Federalist No. 4, and Madison, as "Helvidius," said about executives being
prone
to war; they initiate war not because it is in the interest of the people
but
because war furthers their ambitions and satisfies their thirst for fame
and
glory. n158 None of these concerns appear in Yoo's article.
5. British Precedents
According to Yoo, "the Constitution's provisions did not break [*1665]
with
the tradition of their English, state, and revolutionary predecessors, but
instead followed in their footsteps." n159 He devotes twenty-two pages
to the
British legacy, including descriptions of the goals of Locke, Blackstone,
Montesquieu, and others advocating for the independent and exclusive
executive
power over war and peace, the treaty power, declaration of war, raising
armies,
issuing letters of marque and reprisal, and other powers. He concludes
that "the
war powers provisions of the Constitution are best understood as an
adoption,
,
PAGE 18
148 U. Pa. L. Rev. 1637, *1665
rather than a rejection, of the traditional British approach to war
powers."
n160 The statements by James Wilson and others at the Philadelphia
Convention
overwhelmingly refute Yoo's position. n161
It is impossible to compare what Locke and Blackstone advocated to what
the
Framers provided in Articles I and II without concluding that the Framers
repudiated the British model on war powers. It is not even necessary to
examine
the Framers' intent. It is enough to look at the text of the Constitution.
Yoo
states correctly that the English system "gave the executive leadership in
the
initiation and conduct of war, while the legislature was relegated
primarily to
funding the wars and impeaching ministers." n162 But he utterly fails toequate that model with what the Framers
conceived. However much he strains
to
make this work, the express language of the Constitution stands in his
way. If
the Framers had adopted "the traditional British approach to war powers,"
they
would have written Article II to give the President the power to declare
war, to
issue letters of marque and reprisal, and to raise armies, along with all
the
other powers that were vested expressly in Congress.
Hamilton, more enamoured with the British model than the other Framers,
never
advocated the British model for war powers or foreign affairs. In
Federalist No.
75, he wrote of the treaty power:
The history of human conduct does not warrant that exalted opinion of
human
virtue which would make it wise in a nation to commit interests of so
delicate
and momentous a kind, as those which concern its intercourse with the rest
of
the world, to the sole disposal of a magistrate created and circumstanced
as
would be a President of the United States. n163
[*1666]
6. Funding As Congress's Primary Power
For Yoo, whenever the President initiates war, "Congress could express its
opposition only by exercising its powers over funding and
impeachment." n164
He draws an analogy to European precedents: "legislatures of the eighteenth
century controlled executive actions leading to war by using theirappropriations power." n165 Noting that scholars
argue that the power of
the
purse is a "permissible means" for Congress to participate in foreign
affairs,
Yoo "suggests that the spending power may be the only means for legislative
control over war." n166 In establishing a framework for the exercise of
war
power, Yoo says that the Framers "intended to adopt the traditional system
they
knew - executive initiative in war combined with a legislative role via the
spending power." n167
First, it cannot be the case that the President may exercise powers
that are
not granted by the Constitution until Congress successfully exercises its
spending power to block him. If that were the case, after President
Clinton in
1994 had failed to convince Congress of the merits of his health plan, he
could
simply have issued it as a proclamation and waited to see if Congress
passed
legislation to deny him the funds to implement the proclamation. Such a
procedure would reverse the constitutional order. The burden is on the
President
to come through the front door and seek authorization from Congress for his
legislative proposals. The same principle applies to taking the nation
from a
,
PAGE 19
148 U. Pa. L. Rev. 1637, *1666
state of peace to a state of war. The framers expected the President to
submit
his proposal to Congress and await authorization from the legislative body.
Second, if Congress were forced to use the power of the purse to stop
presidential war initiatives, it would have to place restrictive language
in a
bill presented to the President. Instead of the President having to muster
a
majority in each House to support his policy, each House would need a
majority
to stop the President. Moreover, when the bill reached the President, he
could
exercise his veto. Congress would then need an extraordinary majority - a
two-thirds majority - in each House to override the veto and enforce the
spending limitation. As long as the President could maintain a margin of
one-third plus one in a single chamber, his veto would be upheld, even if
the
other [*1667] chamber voted unanimously for the override.
This kind of impasse occurred during the Vietnam War. In 1973, Congress
assembled a majority in each House to vote for a funds cutoff to stop the
war.
When President Nixon vetoed the measure, Congress was unable to find the
two-thirds margin in each House for an override. n168 The two branches
eventually reached a compromise, allowing President Nixon to bomb Cambodia
for
another forty-five days. n169
The political settlement affected litigation that had been progressing
in the
federal courts. In one lawsuit, a federal judge held that Congress had not
authorized the bombing of Cambodia. n170 The judge said that the
inability of
Congress to override the veto and its subsequent adoption of the compromise
language could not be taken as an affirmative grant of authority:
It cannot be the rule that the President needs a vote of only
one-third plus
one of either House in order to conduct a war, but this would be the
consequence
of holding that Congress must override a Presidential veto in order to
terminate
hostilities which it has not authorized. n171
Because the two branches had agreed to compromise language, appellate
courts
granted a stay on the district court's decision. n172
Third, Yoo argues that when President Bush mounted an offensive war
against
Iraq, all Congress had to do to check him through the appropriations power
"was
nothing." n173 This statement ignores the amount of money available to
the
President in the money pipeline: billions of dollars in previously
appropriated
funds that had yet to be obligated or expended. The President may also
exercise
statutory authority to transfer funds from one appropriations account to
another
and invoke emergency authority, such as the Feed and Forage [*1668] Act,
to
incur obligations in advance of an appropriations. n174 A war initiated
by the
President can proceed for quite a period of time, independent of fresh
appropriations granted by Congress.
Lastly, Yoo claims that when President Clinton decided to send 20,000
American troops to Bosnia in 1995, he "already had received funding for the
Bosnia operation in the 1996 Defense Department appropriations." n175 In
fact,
Congress had appropriated nothing for Bosnia. Clinton's military
commitment was
financed not by funds specifically appropriated by Congress but rather by
siphoning several billion dollars from other appropriations accounts
without
congressional deliberation or support. Approval for this prestigination
came
,
PAGE 20
148 U. Pa. L. Rev. 1637, *1668
from a few legislative leaders, not from Congress nor statutory
language. n176
VI. War Powers Doctrine in Kosovo
On March 11, 1999, with President Clinton close to unleashing air strikes
against Serbia, the House voted on a resolution to support U.S. armed
forces as
part of a NATO peacekeeping operation. The resolution purporting to
"authorize"
Clinton to deploy U.S. forces to implement a peace agreement passed, 219 to
191. n177 However, legislators were voting on a concurrent resolution
(House
Concurrent Resolution 42); Congress cannot authorize anything in a
concurrent
resolution because it is not legally binding. Authorization requires a
bill or
joint resolution, both of which are presented to the President for his
signature
or veto. A concurrent resolution passes both chambers but is not
presented. A
second point: by supporting a NATO peacekeeping operation, members of the
House
clearly anticipated a peace agreement between Serbs and Kosovars. The
House was
not supporting military action. The Kosovars eventually accepted the plan,
but
the Serbs did not. Therefore, the House vote cannot be taken as support
for the
bombing operation that would begin within two weeks.
[*1669] By the time the Senate voted on March 23, 1999, negotiations
had
collapsed and air strikes were imminent. The Senate voted fifty-eight to
forty-one in support of military air operations and missile strikes
against the
Federal Republic of Yugoslavia (Serbia and Montenegro). n178 Like the
House,
the Senate made the mistake of using the word "authorize" in a concurrent
resolution (Senate Concurrent Resolution 21 n179 ). The war against
Yugoslavia
began on March 24.
Following these votes in the House and the Senate and the outbreak of
war,
Congressman Jim Leach (R-Ohio) wrote an op-ed piece that said, correctly,
that
the War Powers Resolution "stands as a declaration that war is too
profound a
business to be left to a single individual." n180 That value was indeed
uppermost in the minds of the Framers. And yet Leach claimed that Clinton
was
"on solid legal ground for the military steps he has taken." n181
Neither the
House nor the Senate vote provided legal support for Clinton. He operated
against the Constitution and without any statutory support. There was no
legal
or constitutional ground for his actions.
On April 28, 1999, after the first month of bombing, the House took a
series
of votes on the war in Yugoslavia. It voted 249 to 180 to prohibit the use
of
appropriated funds for the deployment of U.S. ground forces unless first
authorized by Congress. A motion to direct the removal of U.S. armed
forces from
Yugoslavia failed, 290 to 139. A resolution to declare a state of war
between
the United States and Yugoslavia fell, 427 to two. A fourth vote, to
authorize
air operations and missile strikes, lost on a tie vote, 213 to 213. n182
Newspaper editorials and commentators derided the House for these
multiple
and supposedly conflicting votes, n183 but the House articulated some
basic
values. It insisted that Congress authorize the introduction of ground
troops
and it refused to grant authority for the air strikes. Lawmakers pointed
to the
irony of President Clinton seeking the approval of eighteen NATO nations
but not
the approval of Congress. Congressman Ernest Istook (R-Okla.) remarked: "
President Clinton asked many nations to agree to attack Yugoslavia, but he
[*1670] failed to get permission from one crucial country, America."
n184
Although President Clinton claimed to be operating under the
"authority" of
,
PAGE 21
148 U. Pa. L. Rev. 1637, *1670
NATO decisions, the NATO treaty of 1949 did not transfer the war power from
Congress to a regional military alliance. There is nothing in the text or
legislative history of NATO, or any other mutual defense pact, to support
such a
transfer. n185 Mutual security treaties do not - they cannot - alter the
constitutional allocation of the war power. It would be impermissible for
the
Senate and the President to use the treaty process to deny the House of
Representatives its Article I powers in determining whether the nation
should
commit itself to war. n186 Senator Walter George said this about SEATO:
"The
treaty does not call for automatic action; it calls for consultation. If
any
course of action shall be agreed upon or decided upon, then that course of
action must have the approval of Congress, because the constitutional
process is
provided for." n187
This same reasoning applies to resolutions passed by the U.N. Security
Council to "authorize" military action. Although President Truman relied on
those resolutions in taking the nation to war against North Korea, and
President
Bush threatened to take military action against Iraq on the basis of a
Security
Council resolution, n188 U.N. resolutions are not a source of authority
and do
not supplant the need for obtaining authority from the only branch capable
of
giving it: Congress. Just as Congress did not transfer its war power to
mutual
security pacts, neither did it transfer its war power to the U.N. n189 In
1994, after the Security Council passed a resolution "inviting" all states
to
use "all necessary means" to remove military leaders from Haiti, the Senate
responded with a nonbinding resolution stating that the Security Council
resolution "does not constitute authorization for the deployment of United
States Armed Forces in Haiti under the Constitution of the United States or
pursuant to the War Powers Resolution [*1671] (Public Law 93-148)."
n190 The
Senate language passed by a vote of 100 to zero. n191
Conclusions
For more than a century and a half, from 1789 to 1945, Congress and the
President followed the general constitutional principle that the
initiation of
war against foreign nations lay with the representative branch, Congress.
That
understanding was recognized in several court decisions, some of them
authored
by Chief Justice Marshall. A number of presidential military initiatives
were
taken during this period, but those actions were relatively modest in
scope and
limited in time. During this period, no president claimed the right to
take the
country to war without first seeking the authority of Congress. President
Polk's
initiatives led to hostilities between the United States and Mexico, but
Polk
came to Congress for authority to declare war. In the one major military
conflict where the president acted first - Lincoln in the Civil War - the
dispute was domestic, not foreign. Even here Lincoln acknowledged that he
lacked
full constitutional authority for what he had done, and asked Congress to
enact
legislation to provide the necessary legitimacy.
In warning about the possibility of Congress's "pushing the country
into war
too hastily," Yoo invokes this language from Federalist No. 70 : ""In the
legislature, promptitude of decision is oftener an evil than a
benefit." n192
Supposedly the value here is avoiding hasty, and possibly misguided,
action. Yet
on the same page Yoo turns the principle on its head by describing the
President's ability to "act quickly," "swiftly and with decisiveness."
n193
The Framers did not want cautious, deliberative action by Congress and
unilateral, precipitate action by the President, other than when repelling
sudden attacks. The deliberative model applies to both branches, acting
jointly.
,
PAGE 22
148 U. Pa. L. Rev. 1637, *1671
For the initiation of war, the Framers wanted both branches to act with
deliberation and full debate through the regular legislative process to
determine whether hostilities were in the national interest. When James
Wilson
said it would not be in the power "of a single man" to involve the nation
in
war, he believed that by relying on the [*1672] deliberative process in
Congress "nothing but our national interest can draw us into war." n194
The
Framers knew, as we should, that when presidents unleash the war power,
"promptitude of decision is oftener an evil than a benefit."
FOOTNOTES:
nl. See Louis Fisher, The Korean War: On What Legal Basis Did Truman
Act?, 89
Am. J. Int'l L. 21, 21-22 (1995) (discussing whether Truman acted contrary
to
the Constitution).
n2. See generally Louis Fisher, Congressional Abdication on War and
Spending
(forthcoming 2000).
n3. The Federalist No. 51, at 356 (James Madison) (Benjamin Fletcher
Wright
ed., 1961).
n4. Id. at 355.
n5. Id. at 356.
n6. Woodrow Wilson, Constitutional Government in the United States 56
(1908).
n7. 1 James Bryce, The American Commonwealth 29-30 (MacMillan 3d ed.
1908)(1893).
n8. The Federalist No. 47, at 337 (James Madison) (Benjamin Fletcher
Wright
ed., 1961).
n9. See Louis Fisher, President and Congress 243-51 (1972) (arguing that
Montesquieu based his model for separated powers on the British
Constitution but
was heavily criticized because the branches of the British government have
been
consistently linked).
n10. Oliver Wendell Holmes, Collected Legal Papers 263 (1920).
nll. 1 Baron de Montesquieu, The Spirit of the Laws 158 (Thomas Nugent
trans., 1949).
n12. See id. at 156 (arguing that members of the legislative body
should only
be allowed to reject, and not resolve, legislation so that the interests
of the
people are not forgotten).
n13. See id. at 159-60 ("If the prince (executive) were to have a part
in the
legislature by the power of resolving, liberty would be lost.").
n14. "It is necessary that, by the nature of things, power check
power." The
French is taken from Montesquieu's collected works, 2 Montesquieu, Oeuvres
PAGE 23
148 U. Pa. L. Rev. 1637, *1672
ComplEtes 395 (1951).
n15. See 3 The Federal and State Constitutions, Colonial Charters, and
Other
Organic Laws 1893, 1897, 1902, 1904, 1905 (Francis Newton Thorpe ed.,
1909) [hereinafter Thorpe] (citing clauses from the Massachusetts Constitution
concerning the separation among the branches of state government).
n16. 4 Thorpe, supra note 15, at 2457 (quoting Article XXXVII of the New
Hampshire Bill of Rights).
n17. See 2 The Writings of James Madison 328 (Gaillard Hunt ed., 1901)
("The
limited powers now vested in Congress are frequently mismanaged from the
want of
such a distribution of them. What would be the case under an enlargement
not
only of the powers, but the number of federal Representatives?").
n18. 2 The Records of the Federal Convention of 1787, at 35 (Max
Farrand ed.,
1911) [hereinafter Farrand].
n19. See The Federalist No. 48, at 343 (James Madison) (Benjamin
Fletcher
Wright ed., 1961) (arguing that an "adequate defense" is necessary to
protect
less powerful members of the government because the securities in the state
constitutions are "greatly overrated").
n20. 5 The Writings of James Madison 26 (Gaillard Hunt ed., 1904).
n21. The Federalist No. 47, at 336-37 (James Madison) (Benjamin Fletcher
Wright ed., 1961).
n22. See id. at 337.
n23. Id. at 338.
n24. M.J.C. Vile, Constitutionalism and the Separation of Powers 153
(1967).
n25. 3 The Debates in the Several State Conventions: On the Adoption of
the
Federal Constitution 280 (Jonathan Elliot ed., Phila., Lippincott 1836)
[hereinafter Elliot].
n26. 4 id. at 116.
n27. Pennsylvania and the Federal Constitution, 1787-1788, at 475 (John
Bach
McMaster & Federal D. Stone eds., Lancaster, Pa., Inquirer 1888).
n28. See id. at 476-77 ("There is no liberty, if the power of judging
be not
separated from the legislative and executive powers There would be an
end of
everything, were the same man, or the same body of the nobles, or of the
people,
to exercise those three powers "(internal quotations omitted)).
n29. Edward Dumbauld, The Bill of Rights and What It Means Today 183
(1957)
(quoting Amendments Proposed by Virginia Convention, June 27, 1788).
n30. See id. at 174-75, 199 (citing Pennsylvania's proposed amendments
that
"the legislative, executive and judicial powers be kept separate;" citing
North
Carolina's proposed amendments that "the legislative executive and
judiciary
powers of government should be separate and distinct").
,
PAGE 24
148 U. Pa. L. Rev. 1637, *1672
n31. 1 Annals of Cong. 435-36 (Joseph Gales ed., 1789).
n32. 1 Senate Journals, 1788-1794, at 64, 73-74 (1820).
n33. Kenneth Culp Davis, Administrative Law and Government 36 (2d ed.
1975).
n34. See Paul Einzig, The Control of the Purse 57-62, 100-06 (1959)
(discussing the events leading to Charles I's execution and, more
generally, the
monarchy's insistence on its divine right to levy taxation and the use of
extra-parliamentary revenues, often at the objection of the Parliament).
n35. Joseph Story, Commentaries on the Constitution of the United
States 570,
at 410-11-61 (Carolina Academic Press, 1987) (1833).
n36. The Federalist No. 69, at 446 (Alexander Hamilton) (Benjamin
Fletcher
Wright ed., 1961).
n37. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in
5 The
Writings of Thomas Jefferson 123 (Paul Leicester Ford ed., 1895).
n38. James Madison, Letters of Helvidius, No. 1, Gazette of the United
States, Aug. 24, 1793, reprinted in 6 The Writings of James Madison 138,
148
(Gaillard Hunt ed., 1906).
n39. 1 Farrand, supra note 18, at 139-40 (statement of George Mason in
the
Committee of the Whole on June 6, 1787).
n40. John Locke, Two Treatises of Civil Government 146-47, at 190
(London,
J.M. Dent & Sons 1962) (1690) (listing the three branches of commonwealth
government).
n41. Id. 146, at 191.
n42. Id.
n43. See 1 William Blackstone, Commentaries *245-46, *249-52, *254-55,
*257-58, *261-62 (discussing each of the royal prerogatives).
n44. 1 Farrand, supra note 18, at 64-65 (statement of Charles Pinckney
in the
Committee of the Whole on June 1, 1787).
n45. Id. at 65-66 (statement of James Wilson in the Committee of the
Whole on
June 1, 1787).
n46. Id. at 66 (statement of Edmund Randolph in the Committee of the
Whole on
June 1, 1787).
n47. Id.
n48. Id. (statement of James Wilson).
n49. See 2 Farrand, supra note 18, at 594 (8), 599 (2(a)).
n50. Id. at 143 (Draft for Committee of Detail, IV).
PAGE 25
148 U. Pa. L. Rev. 1637, *1672
n51. Id. at 318 (statement of Charles Pinckney in Convention on Aug. 17,
1787).
n52. Id. (statement of James Madison and Elbridge Gerry in Convention
on Aug.
17, 1787).
n53. See id. at 319 (noting the passage of the motion to change "make"
to "
declare" war by a vote of seven to two with one abstention).
n54. 5 The Collected Papers of John Bassett Moore 196 (1944).
n55. 2 Farrand, supra note 18, at 319 (statement of George Mason in
opposition to Pierce Butler made in Convention on Aug. 17, 1787).
n56. Id. at 318-19 (statements of various named delegates in
Proceedings in
Committee of the Whole on Aug. 17, 1787).
n57. 2 Elliot, supra note 25, at 528.
n58. See 4 id. at 107, 287 (containing statements by James Iredell and
Charles Pinckney echoing Wilson's reliance on checks and balances to guard
against war).
n59. U.S. Const. art. I, 8, cl. 11.
n60. Thomas Jefferson, Opinion on "The Little Sarah" (May 16, 1793), in
6 The
Writings of Thomas Jefferson, supra note 37, at 257, 259.
n61. Id.
n62. Letter from Alexander Hamilton to James McHenry (May 17, 1798), in
21
The Papers of Alexander Hamilton 461-62 (Harold C. Syrett ed., 1974).
n63. U.S. Const. art. I, 8, cl. 10.
n64. 1 William Blackstone, Commentaries *43.
n65. 1 Farrand, supra note 18, at 316 (statement of James Madison in
Committee of the Whole on the Propositions of Mr. Patterson on June 19,
1787).
n66. See Act of Apr. 30, 1790, ch. 9, 1 Stat. 112.
n67. See id. 25-26.
n68. Id. 26, 28.
n69. 1 James Kent, Commentaries on American Law 170 (1826).
n70. Act of May 22, 1794, ch. 33, 1 Stat. 369.
n71. Dellums V. Smith, 577 F. Supp. 1449, 1453 (N.D. Cal. 1984)
(regarding a
mandamus action brought by private plaintiffs to compel the Attorney
General to
investigate whether the President and other federal executive officers
violated
the Neutrality Act vis-a-vis Nicaragua).
PAGE 26
148 U. Pa. L. Rev. 1637, *1672
n72. See William Michael Treanor, Fame, the Founding, and the Power to
Declare War, 82 Cornell L. Rev. 695, 695-701 (1997) (discussing the
significance
of vesting in Congress the power to declare war and grant letters of
marque and
reprisal).
n73. The Federalist No. 4, at 101 (John Jay) (Benjamin Fletcher Wright
ed.,
1961).
n74. 6 The Writings of James Madison 174 (Gaillard Hunt ed., 1906).
n75. See Jeffrey A. Smith, War and Press Freedom: The Problem of
Prerogative
Power 3, 5-6, 31 (1999) (explaining the Enlightenment aversion to warfare
and
preference for transparent and republican, versus monarchical, rule).
n76. Id. at 4.
n77. See Act of June 18, 1812, ch. 102, 2 Stat. 755; Act of May 13,
1846, ch.
16, 9 Stat. 9; Act of Apr. 25, 1898, ch. 189, 30 Stat. 364; Act of Apr. 6,
1917,
ch. 1, 40 Stat. 1; Act of Dec. 8, 1941, ch. 561, 55 Stat. 795.
n78. See Act of Apr. 6, 1917, ch. 1, 40 Stat. 1; Act of Dec. 17, 1917,
ch. 1,
40 Stat. 429; Act of Dec. 8, 1941, ch. 561, 55 Stat. 795; Act of Dec. 11,
1941,
ch. 564, 55 Stat. 796; Act of Dec. 11, 1941, ch. 564, 55 Stat. 797; Act of
June
5, 1942, ch. 323-25, 56 Stat. 307.
n79. See Louis Fisher, Presidential War Power 17-18, 26 (1995)
(discussing
statutes enacted to authorize military operations against France and the
Barbary
powers).
n80. See id. at 13-17 (discussing war power precedents from 1789 to
1800).
n81. See Letter from George Washington to Governor William Moultrie
(Aug. 28,
1793), in 33 The Writings of George Washington 1745-1799, at 73 (John C.
Fitzpatrick ed., 1940) ("The Constitution vests the power of declaring war
with
Congress; therefore no offensive expedition of importance can be undertaken
until after they shall have deliberated upon the subject, and authorized
such a
measure."). In one of his messages on Indian affairs, Washington referred
to
military operations "offensive or defensive," but the full text of his
message
is designed to avoid any initiative in warmaking and to limit military
actions
to defensive measures. The President approved military operations only in
response to Indian attacks and pursuant to authorization by Congress to
"call
forth
the
militia
for the protection of the frontiers from the
incursions of
the hostile Indians." See Instructions from the President of the United
States
to the Governor of the Western Territory (Oct. 6, 1789), in I American
State
Papers: Indian Affairs, Class II, 96, 96-97 (Walter Lowrie & Matthew St.
Clair
Clarke eds., 1832).
n82. Letter from Henry Knox to Governor Blount (Oct. 9, 1792), in 4 The
Territorial Papers of the United States 195 (Clarence Edwin Carter ed.,
1936)
[hereinafter Territorial Papers].
n83. Letter from Henry Knox, Secretary of War, to Governor Blount (Nov.
26,
1792), in Territorial Papers, supra note 82, at 221.
PAGE 27
148 U. Pa. L. Rev. 1637, * 1672
n84. Letter from Henry Knox, Secretary of War, to Governor Blount (Mar.
23,
1795), in Territorial Papers, supra note 82, at 389.
n85. See, e.g., Act of Mar. 27, 1798, ch. 23, 1 Stat. 547; Act of Apr.
27,
1798, ch. 31, 1 Stat. 552; Act of May 3, 1798, ch. 37, 1 Stat. 554; Act of
May
28, 1798, ch. 47-48, 1 Stat. 558; Act of July 11, 1798, ch. 72, 1 Stat.
594; Act
of July 16, 1798, ch. 76, 1 Stat. 604 (establishing appropriations for
armament;
regiments of artillery; defense of ports and harbors; the raising of a
provisional army; protection of the coasts of the country; the
organizations of
a Marine Corps; and augmentation of the Army).
n86. Thomas Jefferson, First Annual Message (Dec. 8, 1801), in 1 A
Compilation of the Messages and Papers of the Presidents 315 (James D.
Richardson ed., Bureau of National Literature, Inc., New York 1897)
[hereinafter
Richardson].
n87. Id.
n88. See Fisher, supra note 79, at 26 (noting congressional
authorization of
military action during the presidencies of Jefferson and Madison).
n89. See Abraham D. Sofaer, War, Foreign Affairs and Constitutional
Power:
The Origins 209-14 (1976) (detailing the events of the 1801 expedition to
the
Mediterranean).
n90. 15 Annals of Cong. 19 (1805).
n91. Fisher, supra note 79, at 32.
n92. Act of May 13, 1846, ch. 16, 9 Stat. 9; see also Fisher, supra
note 79,
at 29-34 (detailing Polk's actions in the disputed territory and the
congressional reaction).
n93. John Locke, The Second Treatise on Civil Government 89 (Prometheus
Books
1986) (1690).
n94. Abraham Lincoln, Special Session Message (July 4, 1861), in 7
Richardson, supra note 86, at 3221, 3225.
n95. Id.
n96. See Cong. Globe, 37th Cong., 1st Sess. 393 (1861) (reporting
Senator
Howe's statement that he would vote to support the President's actions
"upon the
assumption that the different acts of the Administration were illegal").
n97. Act of Aug. 6, 1861, ch. 63, 12 Stat. 326.
n98. Edward S. Corwin, The President's Power, New Republic, Jan. 29,
1951, at
15, 16.
n99. See Richard F. Grimmett, Congressional Research Service, Report
No. RL
30172, Instances of Use of United States Armed Forces Abroad, 1798-1999
(1999)
(reviewing "hundreds of instances in which the United States has utilized
military forces abroad in situations of military conflict or potential
conflict
to protect U.S. citizens or promote U.S. interests").
,
PAGE 28
148 U. Pa. L. Rev. 1637, *1672
n100. See id. at 2-12 (providing a brief description of various U.S.
military
actions abroad).
n101. See id. at 1-12 ("In some instances a military officer acted
without
authorization ")
n102. See Fisher, supra note 79, at 35-37 (recounting the bombardment of
Greytown and its effects).
n103. Article 20 of the OAS provides that the territory of a nation is
inviolable and it "may not be the object, even temporarily, of military
occupation or of any other measures of force taken by another State,
directly or
indirectly, on any grounds whatever." Charter for the Organization of
American
States (as revised) art. 20.
n104. U.N. Charter art. 2, para. 4.
n105. W. Taylor Reveley III, War Powers of the President and Congress:
Who
Holds the Arrows and Olive Branch? 29 (1981).
n 1106. Charles A. Lofgren, War-Making Under the Constitution: The
Original
Understanding, in "Government from Reflection and Choice": Constitutional
Essays
on War, Foreign Relations, and Federalism 3, 36 (1986).
n107. Id. at 38.
n108. John Hart Ely, War and Responsibility: Constitutional Lessons of
Vietnam and Its Aftermath 3 (1993).
n109. Id.
nl 10. David Gray Adler, Court, Constitution, and Foreign Affairs, in The
Constitution and the Conduct of American Foreign Policy 19, 19 (David Gray
Adler
& Larry N. George eds., 1996).
nl 11. Michael J. Glennon, Constitutional Diplomacy 72 (1990).
nl 12. Id. at 81.
nl 13. Harold Hongju Koh, The National Security Constitution: Sharing
Power
After the Iran-Contra Affair 75 (1990).
nl 14. Id. at 76.
nl 15. John C. Yoo, The Continuation of Politics by Other Means: The
Original
Understanding of War Powers, 84 Cal. L. Rev. 167, 174 (1996).
nl 16. Id. at 268, 295.
nl 17. Id. at 264.
nl 18. Id. at 266.
nl 19. See id. at 174 (explaining instead that "the Constitution
established a
,
PAGE 29
148 U. Pa. L. Rev. 1637, *1672
war-making process that can vary with the circumstances and with the
relative
political power of the President and Congress").
n120. 67 U.S. (2 Black) 635, 668 (1863) (noting that "if a war be made
by
invasion of a foreign nation, the President is not only authorized but
bound to
resist force by force").
n121. Id. at 668.
n122. Id. at 669.
n123. Id. at 660.
n124. 5 U.S. (1 Cranch) 1, 28 (1801).
N125. 27 F. Cas. 1192, 1230 (C.C.N.Y. 1806) (No. 16,342).
n126. Koh, supra note 113, at 83.
n127. Yoo, supra note 115, at 288.
n128. Id. at 295.
n129. Id. at 286 n.547.
n130. See id. (discussing Wilson's doubts about adopting a system in
whichwar powers are vested in the executive, rather than the legislature).
n131. Id.
n132. Id.
n133. Id.
n134. Id.
n135. Id. at 242.
n136. Id. at 243.
n137. Id. at 247.
n138. Id. at 270.
n139. Id. at 271.
n140. Id. at 295.
n141. Id. at 288.
n142. See Talbot V. Seeman, 5 U.S. (1 Cranch) 1, 1 (1801) (allowing
salvage
to a United States ship of war that captured a neutral owned ship from the
French); Bas V. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (holding that the
act of
Congress of March 2, 1799, applied to an American ship captured by a French
privateer because France and the United States were involved in a public
war
PAGE 30
148 U. Pa. L. Rev. 1637, * 1672
and, therefore, considered "enemies" for the purpose of the statute);
United
States V. Smith, 27 F. Cas. 1192, 1229-30 (C.C.D. N.Y. 1806) (No. 16,342)
(noting that the President does not have the "authority to set on foot a
military expedition against a nation with which the United States are
[sic] at
peace").
n143. 6 U.S. (2 Cranch) 170, 179 (1804) (holding that Congress's act of
February 9, 1799, did not authorize the seizure of ships sailing from
French
ports, and that the President's order to seize such ships can not
exonerate an
American commander where he seized such a ship).
n144. Yoo, supra note 115, at 295 n.584.
n145. Id.
n146. See id.
n147. Id. at 176.
n148. See U.S. Const. art. III, 2 (describing the breadth of the
judicial
power).
n149. Yoo, supra note 115, at 172.
n150. Id. at 177.
n151. Id. at 290-91 (quoting Richard H. Kohn, Eagle and Sword: The
Federalists and the Creation of the Military Establishment in America,
1783-1802, at 107 (1975)).
n152. Act of Sept. 29, 1789, ch. 27, 5, 1 Stat. 95; see also Act of
Apr. 30,
1790, ch. 10, 16, 1 Stat. 119, 121 (authorizing the President to call out
the
militia for "the purpose of aiding the troops now in service, or to be
raised by
this act, in protecting the inhabitants of the frontiers of the United
States");
Act of Mar. 3, 1791, ch. 28, 1 Stat. 222 (raising and adding another
regiment to
the United States military and providing further protection of the
frontiers).
n153. Letter from George Washington to Governor William Moultrie, supra
note
81, at 73.
n154. Yoo, supra note 115, at 291 (noting the occurrence of raids on
merchant
commerce, full scale battles, and the creation of a regular army during the
Quasi-War between the United States and France).
n155. See Fisher, supra note 79, at 17-18 (discussing several ways in
which
Congress supported military action by the President, and noting that
"Congress
had acted to authorize war").
n156. Yoo, supra note 115, at 292.
n157. Id. at 174.
n158. See supra text accompanying notes 72-76.
nl 159. Yoo, supra note 115, at 197.
PAGE 31
148 U. Pa. L. Rev. 1637, * 1672
n160. Id. at 242.
n161. See supra text accompanying notes 44-48.
n162. Yoo, supra note 115, at 198.
n163. The Federalist No. 75, at 477 (Alexander Hamilton) (Benjamin
Fletcher
Wright ed., 1961).
n164. Yoo, supra note 115, at 174.
n165. Id. at 197.
n166. Id. at 197 n. .158.
n167. Id. at 241.
n168. See 1973 Public Papers of the Presidents, 621-22 (vetoing the
bill and
noting that the veto was not overriden by the House); 119 Cong. Rec. 21778
(1973) (sustaining the veto).
n169. See Second Supplemental Appropriations Act of 1973, 307, 87 Stat.
129
(prohibiting use of any appropriated funds "to support directly or
indirectly
combat activities in or over Cambodia, Laos, North Vietnam and South
Vietnam"
after the expiration of 45 days).
n170. See Holtzman V. Schlesinger, 361 F. Supp. 553, 565 (E.D.N.Y.
1973).
n171. Id.
n172. See Holtzman V. Schlesinger, 414 U.S. 1304, 1310, 1316, 1321
(1973)
(granting an application for a stay of the district court order); Holtzman
V.
Schlesinger, 484 F.2d 1307, 1313-14 (2d Cir. 1973) (finding the argument
that
the President only required a vote of "one-third plus one" unpersuasive in
light
of the compromise language).
n173. Yoo, supra note 115, at 297.
n174. See Louis Fisher, Presidential Spending Power 110-18, 238-47
(1975)
(discussing Nixon's use of transfer authority to fund the war in Cambodia,
and
the open-ended authority of the Department of Defense to commit funds
under the
Feed and Forage Act).
n175. Yoo, supra note 115, at 298.
n176. See Louis Fisher, The Bosnia Commitment, Legal Times, Mar. 11,
1996, at
22 (noting that some legislators deferred to Clinton's decision to send
troops
but asserting that there was not adequate process because there was no
action or
authorization by the entire Congress).
n177. 145 Cong. Rec. H1249-50 (daily ed. Mar. 11, 1999).
n178. See 145 Cong. Rec. S3118 (daily ed. Mar. 23, 1999).
PAGE 32
148 U. Pa. L. Rev. 1637, *1672
n179. Id. at S3110.
n180. James A. Leach, A War Vote, Wash. Post, Apr. 15, 1999, at A31.
n181. Id.
n182. See 145 Cong. Rec. H2376-452 (daily ed. Apr. 28, 1999).
83. See, e.g., Julie Malone, Mixed Signals for the House Get Tangled
Interpretations, Times-Picayune (New Orleans), Apr. 30, 1999, at A12;
Editorial,
No-confidence Vote for a Waffling House, Baltimore Sun, Apr. 30, 1999, at
26A;
Editorial, War Waffling in House, L.A. Times, Apr. 30, 1999, at B6.
n184. 145 Cong. Rec. H2419 (daily ed. Apr. 28, 1999).
n185. See Fisher, supra note 79, at 92-97 (arguing that mutual security
treaties "do not empower the President to use armed force abroad without
congressional consent").
n186. See Michael J. Glennon, United States Mutual Security Treaties:
The
Commitment Myth, 24 Colum. J. Transnat'l L. 509 (1986) (arguing that
without
legislative approval presidential action predicated upon a mutual security
treaty is constitutionally unauthorized).
n187. 101 Cong. Rec. 1051 (1955).
n188. See Fisher, supra note 79, at 84-86, 148-51 (noting the reliance
by
both Truman and Bush on U.N. resolutions as authorization for their
actions).
n 189. See id. at 72-84 (arguing that the U.N. Charter and the U.N.
Participation Act of 1945 did not alter the constitutional framework by
allowing
the President to take military action without obtaining congressional
approval).
n190. 140 Cong. Rec. 19324 (1994).
n191. See id.
n192. Yoo, supra note 115, at 304 (quoting The Federalist No. 70, at 475
(Alexander Hamilton) (Jacob E. Cooke ed., 1982)).
n193. Id.
n194. 2 Elliot, supra note 25, at 528.
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PAGE 1
45 of 100 DOCUMENTS
Copyright (c) 1989 Georgetown Law Journal
Georgetown Law Journal
December, 1989
78 Geo. L.J. 415
LENGTH: 21598 words
NOTE: Self Defense or Presidential Pretext? The Constitutionality of
Unilateral Preemptive Military Action.
Mark J. Yost
SUMMARY:
The Constitution explicitly grants warmaking authority to both the
legislative and executive branches, but it often leaves the scope of their
respective powers ambiguous. The commander in chief clause provides:
"The
President shall be Commander in Chief of the Army and Navy of the United
States,
and of the Militia of the several states, when called into the actual
Service of
the United States.
" At a minimum, the Framers intended this clause to
confer upon the Executive the unitary authority to direct the military
after
Congress has authorized military action.
These debates have
influenced and
been influenced by executive practice, judicial interpretation, public
opinion,
and even international law. Although production of chemical weapons
is not
a direct threat, the United States feared that because of Libya's terrorist
affiliations, production was the functional equivalent of use. The
threat
would exist only if the Libyan plant produced chemical weapons, if the
plant
provided those chemical weapons to terrorists, and if the terrorists used
the
weapons to attack United States interests.
The threat against United
States
interests must be so imminent as to preclude congressional consultation
and to
"leave no time for deliberation." The consultation mechanism proposed
below
promotes congressional involvement and permits Congress to check executive
overreaching.
TEXT:
[*415] The boundary between the warmaking powers of congress and the
President defies clear definition. nl The Constitution explicitly grants
warmaking authority to both the legislative and executive branches, but it
often
leaves the scope of their respective powers ambiguous. This ambiguity has
created what one commentator has described as "constitutional gaps" n2
in the
allocation of war powers -- areas of interest to both branches but
exclusively
within the purview of neither. The confusion caused by these gaps is
aggravated
by a general overlap in war powers an overlap that sometimes causes both
branches to claim authority over a given issue. n3 Principled attempts to
resolve these disputes are complicated by a separation of powers scheme
that
relies on interbranch tension for sound war powers decisionmaking. n4
This
[*416] interbranch tension fuels the political debates that ultimately
decide
what the war powers mean. n5
PAGE 2
78 Geo. L.J. 415, *416
The Framers envisioned war powers decisionmaking as a joint process
between
the President and Congress. n6 Today, however, the balance of power has
shifted decidedly in favor of the President. n7 This shift has undermined
Congress' ability to perform its dual role as a guardian of the war powers
and a
check upon executive overreaching. This diminished protection against
presidential abuse of the war powers is particularly alarming in a nuclear
age,
in which the misuse of military power could be devastating. n8 The
proliferation of international terrorism also complicates the war powers
equation, n9 because it seems to justify calls for an even stronger
Executive.
This note explores the limits of the President's war powers authority.
Specifically, it analyzes whether the President, consistent with his
constitutional grant of war powers, can order preemptive military action
without
congressional consultation. The preemptive air strike that President
Reagan
planned, but did not order, against the chemical weapons factory at Rabta,
Libya
provides the context for this discussion. Part I outlines the history of
United
States-Libyan relations and tracks the construction of the chemical weapons
plant at Rabta. Part II discusses the various types of war that may
[*417] be
waged under the Constitution. It argues that the Constitution provides
for only
three types of warmaking: (1) acts of war pursuant to a congressional
declaration of war, n10 (2) acts of war authorized by statute, nl 1 and
(3)
acts of war pursuant to the President's self-defense power under the
commander
in chief clause and the executive power clause of article II. This Part
then
analyzes the factual circumstances attending the Rabta chemical weapons
factory
and concludes that because there was no congressional declaration of war
and
because no legislation authorized a preemptive military strike, the
President
constitutionally could have ordered a strike only under his self-defense
power.
It concludes by tracing the development of this presidential authority and
analyzing the factors that have determined its scope.
Part III proposes an analytical model for determining the
constitutionality of preemptive military action when the President acts
unilaterally -- purportedly under the authority of his self-defense
power. This
model is designed to ferret out pretext by ensuring that presidents not act
without congressional input unless their justifications are consistent
with the
separation of powers scheme. Specifically, it permits the President to
invoke
military action unilaterally only when the predicted threat is reasonably
certain, requires an immediate response, and endangers compelling United
States
interests. If the threat fails to satisfy any of the three elements of
this
model, the President's reliance upon his exclusive powers is misplaced and,
perhaps, even pretextual. In this situation, the military response falls
within
an area of shared power, and the President must consult with Congress
before
deploying military forces. In contrast, if the threat satisfies the model,
it
falls within the President's exclusive war powers and the President may
defer
consulting with Congress until after he has taken the military action.
The constitutionally mandated consultation that this model envisions
need not
consist of ratification by Congress as a body. Rather, Part IV argues
that an
alternative form of consultation is sufficient, and perhaps even necessary
to
respect the President's need for secrecy and efficiency. The alternative
proposed in this note respects those interests while ensuring the
majoritarian
participation in war powers decisions upon which the Framers insisted.
[*418] I. LIBYAN TERRORISM AND CHEMICAL WEAPONS: A RECIPE FOR
PREEMPTIVE
MILITARY ACTION
PAGE 3
78 Geo. L.J. 415, *418
United States relations with Libya have grown increasingly strained
since
Muammar el-Qaddafi seized power in 1969. n12 Qaddafi has pursued a
policy of
terrorism as a means to end Western influence in the Middle East. n13 As
a
result, he has directed many terrorist acts against United States
interests at
home and abroad. n14 On March 24, 1986, Libya attacked United States
naval
forces lawfully engaged in a navigation exercise in the international
waters of
the Gulf of Sidra. n15 Although the United States Navy sank two Libyan
vessels, the United States forces sustained no casualties. n16 Shortly
thereafter, United States intelligence linked Libya to the April 6, 1986,
bombing of a West Berlin nightclub that wounded approximately fifty United
States military personnel and killed one. n17
On April 14, 1986, in response to the West Berlin bombing, President
Reagan
ordered an air strike against selected Libyan military installations.
n18 He
notified congressional leaders of the air strike only three hours before
the
aircraft arrived over Libya. n19 President Reagan justified the air
strike as
an [*419] act of self defense under article 51 of the United Nations
Charter
n20 and as an attempt to deter future Libyan attacks against United States
interests. n21
In January 1989, just prior to the opening of the Paris Conference on
Chemical Weapons, n22 the United States announced that it possessed
evidence
which proved that Libya was on the verge of producing chemical weapons at
the
Rabta facility. n23 The United States based its claim on the facility's
specialized design and equipment and on the excessive security measures for
[*420] what Qaddafi asserted was merely a pharmaceutical factory. n24
The
plant, located forty miles south of Tripoli, was in the middle of a
desert, was
well removed from any population centers, and was surrounded with earthen
embankments and surface-to-air missile sites. n25 It reportedly was
designed
to produce approximately 80,000 pounds of mustard gas or nerve gas daily --
eight times more than Iraq, the largest producer of nerve gas in the
Middle East
at that time. n26 United States concern that Libya would use these
chemical
weapons was fueled by Libya's well-documented terrorist affiliations and by
reports that Libya was training its personnel in mid-air refueling, a
technique
that would enable Libyan aircraft to reach Israel. n27
The United States had little difficulty convincing most of its allies
that
the facility's purpose was to produce chemical weapons. n28 By the end
of the
Paris Conference, senior officials in foreign governments expected that
President Reagan would order an air strike against Rabta before he left
office
on January 20, 1989. n29 Because President Reagan had not consulted
Congress
prior to ordering the 1986 air strike against Libya, Congress had no
reason to
believe that he intended to do so in 1989. n30
[*421] President Reagan never ordered the air strike, but the
potential for
such unilateral preemptive military action raises profound questions about
the
warmaking roles of the President and Congress. It also raises questions
about
when, if ever, it may be constitutional for the President to order
preemptive
military action without congressional participation.
II. PREEMPTIVE MILITARY STRIKES AND THE CONSTITUTION
A unilateral preemptive military strike against the Rabta chemical
factory
would have been constitutional only if it fell within one of three
categories.
,
PAGE 4
78 Geo. L.J. 415, *421
First, the strike would have been constitutional if Congress had declared a
general war. n31 Second, it would have been constitutional if Congress
had
granted the President limited statutory authorization to conduct a
strike. n32
Finally, the strike would have been constitutional if the President had
been
defending compelling United States interests that were threatened by
imminent
harm. n33
[*422] A. CONGRESSIONAL AUTHORIZATION OF PREEMPTIVE MILITARY ACTION
1. Declared War (Perfect War)
The Constitution explicitly confers upon Congress the power to "Declare
war.
" n34 But, even though the Framers intended that Congress retain ultimate
authority over whether armed forces should be involved in hostilities, they
recognized that the President must have "supreme command
of the
military
and naval forces." n35 The tension created by these competing grants has
led
to a constant struggle between efficiency and democracy. This is because
increased congressional participation is often incompatible with quick,
easy
decisions.
The scope of presidential warmaking power is at its broadest when
Congress
declares war. Once Congress acts, the Constitution recognizes that the
President has exclusive power to make tactical wartime decisions. n36
These
powers are difficult to define, but at a minimum they seem to include
decisions
to deploy and use United States military forces. n37 Because these
powers are
exclusively the President's, Congress cannot restrict them. n38
Analysis of a preemptive strike against the Rabta facility under a
declared
war rationale is relatively simple. At the time of the Rabta crisis,
Congress
had not formally declared war against Libya. Thus, the President could not
[*423] have justified a preemptive strike against the Rabta plant as a
tactical
decision during a perfect war. n39
2. War Under Statutory Authorization (Imperfect War)
An "imperfect" war is commonly defined as a statutorily authorized
military
action against hostile forces. n40 The Framers expressly allocated this
limited warmaking power to Congress by granting it the power to "issue
Letters
of Marque and reprisal." n41 Today, Congress may authorize an imperfect
war
through ordinary legislation. n42
When the President takes military action pursuant to statutory
authority, he
is limited to the scope of the statutory license. n43 Therefore, whether
the
[*424] President could have unilaterally ordered a preemptive strike in
the
Rabta scenario, depends upon the statutory context. Two statutes, the War
Powers Resolution of 1973 n44 and the Omnibus Diplomatic Security and
Antiterrorism Act of 1986 (Antiterrorism Act), n45 provided arguable
sources
of this authority.
Section 2(c) of the War Powers Resolution authorizes the President to
introduce United States armed forces into hostilities under three
circumstances:
"pursuant to (1) a declaration of war, (2) specific statutory
authorization, or
(3) a national emergency created by an attack upon the United States, its
territories, or possessions, or its armed forces." n46 None of these
provisions authorized the President to order a preemptive military strike
PAGE 5
78 Geo. L.J. 415, *424
against the Rabta facility.
Because Congress had not declared war on Libya when President Reagan
considered ordering the preemptive military strike, n47 the President
could
not have relied upon section 2(c)(1). Section 2(c)(3) would have
authorized a
strike only if the statutory language "national emergency created by an
attack"
includes potential attacks upon United States interests. Although Congress
could have authorized a military response to a potential attack, the plain
language of the War Powers Resolution requires an actual attack. n48
Unlike sections 2(c)(1) and 2(c)(3), which authorize the President to
commitforces to hostilities upon the occurrence of specific events, section
2(c)(2)
provides no such authority. This section merely asserts that congressional
enactments external to the War Powers Resolution may grant warmaking
[*425]
authority to the President. In short, section 2(c)(2)'s applicability
turns on
the existence of additional statutory authority.
The only statute that might have authorized an imperfect war under
section
2(c)(2) was the Antiterrorism Act. n49 The original bill, submitted to
the
House on April 17, 1986, would have authorized the President "to undertake
actions to protect United States persons against terrorists and terrorist
activity through the use of all such antiterrorism and counterterrorism
measures
as he deems necessary." n50 This broad language easily could have
permitted a
unilateral preemptive strike against a perceived terrorist threat. n51
Congress, however, deleted this broad language when it enacted the final
bill.
n52 Some legislators were concerned that the broader original language
would
have given the President a "blank check" to authorize preemptive as well as
punitive strikes against terrorists or governments supporting terrorism.
n53
By considering and rejecting such a broad grant of warmaking power,
Congress
intended not to confer such authority. Thus, the Antiterrorism Act could
not
have authorized a preemptive military strike pursuant to section 2(c)(2)
of the
War Powers Resolution.
Neither the War Powers Resolution nor any other statute authorized a
unilateral preemptive military strike. Therefore, the President could not
have
justified a strike on the Rabta facility as an action conducted during an
imperfect war.
B. PREEMPTIVE MILITARY ACTION UNDER THE PRESIDENT'S SELF-DEFENSE POWER
Because Congress had neither declared a perfect war nor authorized an
imperfect war at the time of the Rabta controversy, the President could
have
justified unilateral preemptive military action only by relying upon his
exclusive warmaking powers. n54 To some extent, this would have required
him
to [*426] rely upon his power of self defense. To understand the nature
and
extent of the President's self-defense power -- and the tyranny that
pretextual
reliance upon this power could allow -- we must consider the source of this
power and how our interpretation of it has evolved.
1. The Constitutional Roots of the Self-Defense Power
The President's power to repel invasions or to act in defense of United
States interests is not mentioned in article II. n55 In fact, the
Constitution's only explicit references to a self-defense power pertain to
Congress. n56 Despite the Constitution's apparent silence on this issue,
the
,
PAGE 6
78 Geo. L.J. 415, *426
commander in chief clause n57 and executive power clause n58 have been
interpreted to authorize the President to respond to national crises.
The commander in chief clause provides: "The President shall be
Commander in
Chief of the Army and Navy of the United States, and of the Militia of the
several states, when called into the actual Service of the United States.
" n59 At a minimum, the Framers intended this clause to confer upon the
Executive the unitary authority to direct the military after Congress has
authorized military action. n60 But the juxtaposition of this clause with
other grants of power suggests that the Framers intended more. First,
article
[*427] IV, section 4 guarantees the states protection from invasion.
n61 The
commander in chief clause suggests that the Framers intended the
President, and
not Congress, to coordinate any military response necessary to protect the
states. n62 Second, during the drafting stage, the Framers changed the
language of article I, section 8 to give Congress the power to "declare"
rather
than to "make" war. n63 They probably intended this change to allow the
President to respond to sudden attacks without a congressional declaration
of
war. n64 Despite these seemingly broad grants of authority, the Framers
feared
that a strong "President would overstep constitutional restraints." n65
Thus,
they viewed the commander in chief clause as granting the President
warmaking
authority only within the limited realm of declared (perfect) wars,
undeclared
(imperfect) conflicts, and responses to sudden attacks. n66
[*428] The Framers' apparent consensus regarding the commander in
chief
clause sharply diverged from their contradictory views on the meaning of
the
executive power clause. The latter clause provides that "[t]he executive
Power
shall be vested in a President of the United States of America." n67 How
the
Framers interpreted the scope of this clause turned upon whether they
viewed it
as a "simple designation of office" or as the "fountainhead of all the
President's powers." n68 Alexander Hamilton took the broad approach,
noting
that article I's grant of powers to Congress refers to "[a]ll legislative
Powers
herein granted," n69 but article II's grant of authority to the
President does
not contain similar limiting language. n70 Thus, Hamilton contended, the
"different modes of expression
confirm the inference that the
authority
vested in the President is not limited to the specific cases of executive
power
delineated in Article II." n71 In contrast, James Madison interpreted the
executive power claue narrowly. He argued that Congress is the major
policymaking body, and that the executive power clause only authorizes the
President to implement congressional policy. n72
The executive power and commander in chief clauses, frequently combined
in
war powers analysis, have evolved into two of the "most highly charged
provisions" of the Constitution. n73 During the past two hundred years,
the
meaning of these clauses has been shaped by political debates. These
debates
have influenced and been influenced by executive practice, judicial
interpretation, public opinion, and even international law. The
President's
[*429] self-defense power often has been the vehicle by which we have
expanded
the scope of these clauses.
2. The Self-Defense Power: A Constitutional Morass.
An invasion or other imminent harm against American citizens or property
triggers the President's power of self defense. n74 In 1842, Daniel
Webster
argued that self defense was justified only in the event of an imminent
threat
"leaving no choice of means, no moment for deliberation." n75 In the
past, the
PAGE 7
78 Geo. L.J. 415, *429
interests that implicated the self-defense power were predominantly
regional.
Today, however, they are primarily international. This change has caused
us to
redefine the interests that deserve protection and the means by which the
President can protect us. We can only achieve this redefinition if we
understand how the President's self-defense power has evolved.
a. Executive Practice. Executive practice has heavily influenced the
politically charged evolution of the self-defense power. Throughout
history,
presidents have relied upon the self-defense power to support military
action
absent congressional authorization. n76
An early military venture by Thomas Jefferson did not foreshadow the
extent
to which this power would soon be stretched. Jefferson was the first
president
to rely exclusively on the self-defense power to justify his use of the
armed
forces. In 1801, he ordered naval frigates to the Barbary Coast to protect
United States merchant ships from pirates. n77 Jefferson construed his
authority to be narrowly circumscribed to defensive actions unless and
until
[*430] Congress authorized offensive action. n78 Contemporaries sharply
disagreed with his view. Alexander Hamilton, a proponent of broad
presidential
prerogative, argued that once United States ships were attacked, the
President
could respond with the full force of a general war. n79
President Polk adopted Hamilton's broad view of the self-defense power
when
he ordered the army to occupy disputed territory between Texas and
Mexico. n80
He authorized General Taylor to consider any crossing of the Rio Grande an
invasion and instructed him "to attack first in defense and even enter
Mexican
territory in pursuit of the invaders." n81 Congress initially contested
Polk's
assertion that the self-defense power authorized this use of force, but it
eventually acquiesced. n82 Because Polk's motives were likely
imperialistic
rather than protective, his reliance on the self-defense power was probably
pretextual. n83
During the Civil War, President Lincoln ordered military action that
further
expanded the scope of the self-defense power. n84 Lincoln routinely
ignored
constitutional and statutory constraints n85 to accomplish what he
believed
was necessary to save the nation. n86 His illegal acts included
suspending the
writ of habeas corpus, ordering the arrest of persons "involved in
'disloyal'
practices," expanding the military, and spending federal money without
congressional authorization. n87 Lincoln "constitutionaliz[ed] the law of
necessity" and established the principle that the President possesses
flexible
emergency war powers. n88
[*431] President William McKinley enlarged the scope of the
self-defense
power to include the deployment of military forces overseas when he ordered
United States troops to China during the Boxer Rebellion. n89 Although
McKinley claimed that this action was necessary to protect United States
interests and the lives and property of citizens, commentators argue that
his
motives were more political than protective. n90 Significantly, McKinley
never
sought congressional authorization even though time permitted consultation.
n91 Even more significantly, Congress never objected. n92
Congress attempted to reassert itself in the war powers equation
between 1919
and 1939. n93 The executive accretion of warmaking power withstood this
effort. The scope of the President's amorphous self-defense power reached
new
heights during the World War II years, as President Franklin D. Roosevelt
,
PAGE 8
78 Geo. L.J. 415, *431
quietly used his constitutional and statutory powers to expand one another.
n94 President Truman's impact was not so subtle. Truman's decision to send
United States military forces to Korea in 1950 "dramatically and
dangerously
enlarged the power of future Presidents to lead the nation into a major
war."
n95 Although Truman had both the time to consult and the congressional
support
to garner approval, he decided to intervene without consulting Congress.
n96
Truman, who may have been initially unsure about [*432] the exact source
of
his authority, was intentionally vague. n97 Later presidents, including
Kennedy, n98 Johnson, n99 Nixon, n100 and Reagan, n101 have
capitalized
upon the successes of their predecessors to further expand the self-defense
power.
In taking military action, these presidents have relied upon their
powers
under the commander in chief and executive power clauses. Because the
self-defense power is subsumed within the war powers clauses, it often has
been
difficult to discern the role self defense has played in executive
justifications. This lack of clarity has been magnified because
presidents have
often felt that it was in their interests to be ambiguous about their
source of
authority. As Congress, the courts, and the public have permitted the
Executive
to push the presidential war powers to new extremes, the meaning of the
self-defense power has changed.
b. Judicial Interpretation. The Supreme Court has responded to
executive
overtures in the war powers arena by generally endorsing the gradual
accretion
of presidential authority. n102 In the Prize Cases, n103 the Court
[*433]
adopted an expansive view of the commander in chief clause's self-defense
power
by validating President Lincoln's blockade of southern ports during the
Civil
War. n104 The Court held that not only was the President authorized to
"resist
force by force" to suppress domestic insurrection or foreign invasion of
United
States territory, but that he was obligated to do so. n105 Moreover, the
Court
explained that the President, in fulfilling his duties under the commander
in
chief clause, was the only person who could determine the degree of force
necessary to suppress an insurrection or to repel an invasion. n106
Justice Nelson, in his capacity as Circuit Justice, gave a similarly
broad
construction to the executive power clause. In Durand V. Hollins, n107
the
President had ordered the Navy to bombard Greytown, Nicaragua because the
local
authorities had refused to pay reparations after a local mob attacked
United
States citizens and their property. n108 A Greytown property owner sued
the
commanding officer of one of the bombarding ships for trespass. n109 The
defendant pleaded that he had merely followed the lawful orders of the
President, who had ordered the strike against an insurrectionist
government not
recognized by the United States. n110 Justice Nelson, in upholding this
defense, interpreted the executive power clause broadly:
As the executive head of the nation, the president is made the only
legitimate organ of the general government.
It is to him [that] the
citizens abroad must look for protection of person and of property, and
for the
faithful execution of the laws existing and intended for their protection.
nlll
The Durand decision, despite being criticized as "unauthorized
warmaking,"
nl 12 [*434] has provided executive warmaking with judicial legitimacy.
Arguably, Durand was not a self-defense case because no imminent threat
existed
and it was not clear that a military response was even necessary. n113
PAGE 9
78 Geo. L.J. 415, *434
Nevertheless, Durand is frequently cited as authority for the proposition
that
the President may introduce military forces within the borders of another
nation
if necessary to protect United States citizens or their property. n114
Presidents sometimes use this case to justify presidential warmaking that
is, at
best, pretextual. President Nixon, for example, arguing through Assistant
Attorney General William Rehnquist, relied in part on Durand as authority
to
introduce military forces into Cambodia -- a neutral country that posed at
most
a potential threat to the United States. nl 15 Rehnquist's arguments
could not
have survived the model proposed in Part III for evaluating the
constitutionality of presidential assertions of the self-defense power.
The Supreme Court limited its broad view of the executive power and
commanderin chief clauses in Youngstown Sheet & Tube Co. V. Sawyer. nl 16 Its
holding
suggests that similar constraints apply to the self-defense powers. In
Youngstown, the President attempted to seize domestic steel mills during
the
Korean War because he feared that a threatened strike would halt steel
production and endanger national security. He argued that the Court should
infer a broad inherent power to seize the mills from "the aggregate of his
constitutional powers as the Nation's Chief Executive and the Commander in
Chief
of the Armed Forces of the United States." n117 Explicitly rejecting this
argument, the Court held that it could not justify the seizure merely
"because
of the several constitutional provisions that grant executive power to the
President." n118 Although this holding is subject to several
interpretations,
n119 it is best viewed as only a minor setback to the expansion of
presidential
[*435] power. The Court basically accepted the "gloss" that history had
placed
upon the war powers clauses n120 but noted that those powers were not
without
some limits.
Courts influence the war powers not only by ratifying presidential
actions,
but also by what they do not do. The judiciary can, and often does, avoid
war
powers disputes by labeling them "political questions" and dismissing them
without reaching the merits. n121 Judicial restraint is effectively the
same
as acquiescence to executive arrogation. Further, by refusing to hear
these
cases, the courts contribute to keeping the war powers in the political
arena.
c. Public Opinion. Public opinion has also had a long-term effect on
constitutional interpretation -- particularly with the politically
sensitive war
powers. Widespread dissatisfaction with executive inaction has fueled
political
debates about the flaws of a democracy that has at times appeared
paralyzed.
Calls for a strong Executive have prompted the President to act forcefully,
n122 have encouraged legislators to acquiesce, n123 and have led courts
to
uphold executive actions. n124 Presidential successes and failures have
affected our expectations of the President's warmaking role and, in turn,
our
expectations have influenced our interpretation of the constitutional
warmaking
provisions.
Presidents, as political actors sensitive to public attitudes, have been
aware that their actions must be perceived as legitimate if they are to
retain
credibility. n125 Their political sensitivity has been especially acute
regarding the war powers because it is in this area that executive
overreaching
could jeopardize the lives of United States citizens. Even though many
citizens
have [*436] called for a strong President, many still expect that unless
he is
responding to an imminent threat, the President must consult with Congress
before introducing military forces into hostilities. n126 Presidents
have been
unable to ignore this national mood.
PAGE 10
78 Geo. L.J. 415, *436
Public sentiment in favor of constraining the President was particularly
pronounced during the Vietnam War. Congress, which is also sensitive to
public
opinion, reflected the electorate's discontent by enacting the War Powers
Resolution. n127 This statute was Congress' attempt to curb the rapid
growth
of the executive war powers and to reassert itself in the war powers
equation.
n128
although scholars often consider the judiciary to be politically
insulated,
n129 even the courts are influenced by politics. n130 As Chief Justice
Rehnquist recently stated:
Judges, so long as they are relatively normal human beings, can no more
escape being influenced by public opinion in the long run than can people
working at other jobs. And if a judge on coming to the bench were to
decide to
hermetically seal himself off from all manifestations of public opinion, he
would accomplish very little; he would not be influenced by [*437]
current
public opinion, but instead by the state of public opinion at the time
that he
came onto the bench. n131
The effect of politics on constitutional decisionmakers is particularly
pronounced in the war powers arena, because the contending branches are
openly
political. Just as politics influences the decisionmakers, the
decisionmakers'
actions shape the political debate. In this way, these forces enter into
the
constantly evolving interpretation of the President's war powers.
d. International Law. Although international law is seldom a direct
constraint upon presidential warmaking, n132 it has helped to define the
self-defense power. n133 International law has influenced the
constitutional
war powers in at least two ways. First, absent a treaty or statute
limiting its
applicability, international law has been incorporated into United States
law.
n134 Because the President has a constitutional obligation to "take care"
to
enforce United States law, n135 he may have a constitutional duty to
enforce
and comply with international law.
Second, international law may influence public opinion. To the extent
that
military intervention has received widespread international and national
attention, assertions that presidential actions have violated
international law
have led many United States citizens to conclude that the President's
actions
were unconstitutional. n136 This conclusion has inevitably affected the
views
of [*438] courts and politicians who are responsible for constitutional
decisionmaking. International law, although rarely dispositive, has
helped to
bridge constitutional gaps in the war powers. n137
3. Preemptive Military Action as an Extension of the Modern
Self-Defense
Power
The political debate that has altered our understanding of the
self-defense
power has focused on defining an "imminent" threat. This definition has
critical implications for the constitutionality of unilateral preemptive
strikes. Advocates of broad presidential prerogative have argued that the
President need not "wait until Hannibal and his elephants are at the gates
of
the city" to respond with military force. n138 Other commentators have
countered that the President often has time for congressional consultation
and
that no threat can be considered imminent if time exists to consult. n139
PAGE 11
78 Geo. L.J. 415, *438
Despite the debate over the meaning of an "imminent threat," modern
presidents have often acted as if their authority to conduct unilateral
preemptive strikes is clear. For example, President Reagan claimed that
the
invasion of Grenada was justified in part because of a threat to the
safety of
United States citizens there. n140 His preemptive actions could not have
been
[*439] justified as self defense, however, because the threat was not
imminent. n141
The self-defense power provides presidents with a convenient vehicle for
accomplishing controversial policy objectives. Although preemptive
strikes may
be necessary to protect United States citizens and their property
throughout the
world, the potential for executive abuse is alarming. Absent some
analytical
framework with which to identify pretextual reliance on the self-defense
power,
there is no way to distinguish legitimate preemptive actions from
unconstitutional overreaching.
III. A MODEL TO EVALUATE THE CONSTITUTIONALITY OF PREEMPTIVE MILITARY
ACTION
UNDER THE SELF-DEFENSE POWER
This Part proposes a three-element model to gauge the constitutionality
of
preemptive military action taken in the absence of prior consultation with
Congress. Under this model, the expected threat must be: (1) reasonably
certain, (2) of such short notice as to "leave no moment for deliberation"
n142 or congressional consultation, and (3) a danger to a compelling United
States interest. If all three elements of the model are satisfied, the
action
is within the President's exclusive self-defense power and he need not
consult
with Congress prior to ordering preemptive military action. If one or more
elements of the model are not satisfied, the President may not
constitutionally introduce military forces unless he first consults with
Congress. Applying this model to the facts of the Rabta chemical weapons
factory indicates that President Reagan had time to deliberate about
whether and
how to respond to the threat. Therefore, he could not constitutionally
have
ordered a preemptive air strike absent congressional participation in the
decision.
The first element of the model requires the President to be reasonably
certain that an attack will occur. In the Rabta plant scenario, the United
States insisted that the purpose of the plant was to produce chemical
weapons.
n143 Although production of chemical weapons is not a direct threat, the
United
States feared that because of Libya's terrorist affiliations, production
was the
functional equivalent of use. n144 The threat posed by use was not
reasonably
[*440] certain, however, because it required the President to follow an
attenuated casual chain. The threat would exist only if the Libyan plant
produced chemical weapons, if the plant provided those chemical weapons to
terrorists, and if the terrorists used the weapons to attack United States
interests. n145
To consider any threat concrete enough to rise to the level of
"reasonable
certainty," the President must rely upon predictive data. What type of
information should and will he use to satisfy the "reasonably certain"
standard?
How accurate must this information be? Perhaps most importantly, who
evaluates
the quality and quantity of such information? Because the President has
exclusive access to information of this type, the critical issues for
preemptive
strike analysis are the extent to which Congress can (or must) play a role
in
PAGE 12
78 Geo. L.J. 415, *440
the President's decision and the extent to which it can review the
President's
background information.
In ordering a preemptive strike, the President will likely rely upon the
record of a country's conduct and upon current intelligence data. Both
sources
of information possess certain flaws. The record of a country's past
conduct
does not guarantee that predictions of future conduct will be accurate.
Intelligence-gathering capabilities may also be inadequate -- especially
with
respect to terrorist groups, which are difficult to penetrate. n146
Moreover,
reduced funding and increased oversight of intelligence operations have
crippled
the intelligence community. n147
Assuming that predictive data are available and accurate, who decides
whether
the President has gathered sufficient information before ordering a
preemptive
strike? Only the President can make the initial determination, because an
emergency might preclude immediate congressional consultation. n148
Certainly,
[*441] a bootstrapping problem exists. The President has exclusive
access to
the data that he alone will use to determine the reasonable certainty of a
threat to United States interests. Abraham Lincoln recognized the danger
inherent in this scheme:
Allow the President to invade a neighboring nation, whenever he shall
deem it
necessary to repel an invasion and you allow him to make war at
pleasure.
Study to see if you can fix any limit to his power in this respect.
If
today, he should choose to say he thinks it necessary to invade Canada, to
prevent the British from invading us, how could you stop him? You may say
to
him, "I see no probability of the British invading us," but he will say to
you,
"Be silent; I see it, if you don't." n149
Although the danger that Lincoln noted is unavoidable in the
self-defense
context, the model proposed in this note minimizes the threat. By
requiring
congressional consultation after the fact when prior consultation is not
feasible, the model reduces the risk of unjustifiable exercises of
presidential
warmaking power.
The second element of the model is the time criterion. The threat
against
United States interests must be so imminent as to preclude congressional
consultation and to "leave no time for deliberation." n150 Determining
whether
this element is satisfied is not always easy, and therefore good faith may
be
particularly relevant. A clear example of a situation that would not
qualify as
an imminent threat is one in which the President consciously observes a
situation developing that will soon reach threat proportions, fails to
consult
with Congress, and then orders preemptive military action. It appears
that this
is what would have happened had the President ordered an air strike at
Rabta.
The Rabta plant was identified in its construction stage, before it
could
produce chemical weapons, and the President apparently had ample time to
consult
with Congress. n151 A preemptive strike under these circumstances could
not
have been justified under the President's self-defense power. A different
case
would have been presented, however, if the President had known that the
Rabta
plant was already secretly operating. Another difficult [*442] case
would
have existed if the factory had been discovered just days prior to
completion.
Prior congressional consultation would have been required if there had
been time
to consult, but may not have been required if the proximity of the threat
had
demanded an immediate military response.
PAGE 13
78 Geo. L.J. 415, *442
The third element of the model requires that the imminent harm endanger
compelling United States interests. Because the self-defense power
authorizes
the President to defend United States interests both at home and abroad,
the
definition of "United States interests" has expanded over time. In 1794,
President Washington relied upon a narrow interpretation of the
self-defense
power when he authorized the use of force against British troops who were
unlawfully inside United States borders. n152 In 1962, however, President
Kennedy ordered a blockade of Cuba to "preserve the balance of power in the
Western hemisphere" n153 even though the Cuban missiles at issue had not
yet
been assembled. n154 In 1989, President Reagan pointed to Rabta as a
United
States concern even though the facility was still under construction and
could
not produce chemical weapons.
In the nuclear age, it is difficult to imagine a circumstance in which
the
United States could not find a legitimate interest that is subject to a
potential threat. Nevertheless, we must distinguish compelling interests,
which
warrant protection prior to consultation, from other interests, which may
warrant some protection but only after consultation. Failure to draw this
linewould turn the self-defense power into an offensive weapon. n155
One factor that the President must consider when determining whether an
interest is compelling is the gravity of the threat. n156 The more
severe the
consequences, the more likely they warrant preemptive response. A
continuum
model best describes this analysis. On one extreme, representing a threat
of
minimal harm, is the protection of residential property owned by a United
States
citizen but located in a foreign country. On the other extreme is a
threat such
as the hijacking of a commercial airliner, which endangers the lives of
United
States citizens.
The President's determination that an interest is sufficiently
compelling to
warrant preemptive action before consultation would be subject to post hoc
congressional scrutiny. By knowing in advance that he would have to
justify to
Congress his evaluation of the threat, the President would be more
reluctant
[*443] to rely pretextually on his self-defense power. Additionally, the
consultation mechanism proposed below would create a dialogue between the
two
branches and help to define which interests are compelling and why. This
dialogue would offer normative guidelines for future self-defense analysis.
Most importantly, it would promote majoritarian participation in war powers
decisionmaking.
IV. CONGRESSIONAL CONSULTATION FOR A PREEMPTIVE STRIKE IS
CONSTITUTIONALLY COMPELLED
A. THE CONSTITUTIONAL SOURCE OF THE CONSULTATION REQUIREMENT
The Framers intended Congress, and not the President, to determine the
extent
of our military involvement. n157 As a result, the Constitution grants
Congress the vast majority of enumerated powers dealing with the military
and
warmaking. n158 Further, the Framers explicitly stated that the President
neither should nor could declare war. n159 The Framers sought to avoid
the
British model of executive power, in which the monarch could both declare
and
make war, and they intended their textual grants to constrain the
President.
n160 They would be surprised to learn that the vagueness of their grants
has led
to a decisive accretion of executive power.
PAGE 14
78 Geo. L.J. 415, *443
The shift away from congressional control of the warmaking process has
offended the Framers' majoritarian principles. The Constitution and comity
require that the President involve Congress in any exercise of the war
powers.
n161 Professor Reveley has argued that "[t]he way in which Congress [will
be]
involved may well vary
but not the necessity that Congress be
involved."
n162 The [*444] consultation mechanism proposed below promotes
congressional
involvement and permits Congress to check executive overreaching. At the
same
time, it encourages both executive efficiency and sound war powers
decisionmaking.
B. A MECHANISM FOR CONSULTATION
Commentators disagree about which consultation mechanism the
Constitution
requires. n163 To be consistent with the constitutional scheme,
Congress' role
must be more than post hoc ratification or silent approval of presidential
action. n164 However, it need not rise to the level of enabling
legislation.
n165 This note proposes a middle ground in which the President must meet
with
the House and Senate leadership to discuss policy options, solicit advice,
and
inform them of his selected course of action. n166
Consultation with congressional leadership would constrain the President
because it would force him to justify his war powers decisions. It would
have
[*445] this chilling effect whether consultation takes place before
military
forces are deployed, as required when the President's actions fail the test
described in Part III, or after military forces are deployed, as permitted
when
his actions pass the test.
To protect the secrecy necessary for many military operations, the
President
need only consult with a small joint committee of senior members of
Congress.
n167 In addition, the President would not need to disclose the specific
parameters of the military operation as long as he presents the general
problem
and policy options to the committee.
An alternative to consultation, endorsed by at least one prominent
public
figure, would require the President to document the reasons for his war
powers
decisions. n168 The documents would not be immediately available for
public
scrutiny but would be released after a set period of time. n169
Theoretically,
this procedure would constrain the President by revealing the
justifications, or
lack thereof, behind specific decisions. But this mechanism is flawed.
First,
records maintained by presidential aides may not be reliable. Second,
fear of
historical scrutiny may not influence a President during times of crisis.
Third, because of executive privilege n170 and statutory exemptions,
n171
certain aspects of the record may be protected and not subject to
disclosure.
Most importantly, this alternative fails to satisfy the constitutional
requirement for congressional input into war powers decisions. For this
reason
alone, it is inferior to consultation as a means to reconcile the
accretion of
executive warmaking power with the majoritarian principles underlying the
Constitution.
The consultation mechanism raises practical questions regarding
enforcement.
Should the President resist consultation and the courts refuse to
intervene,
Congress would have two options. The first would be impeachment. n172
But
[*446] impeachment is rarely used. n173 The second option would be
publicly
opposing the President. Specifically, Congress could withhold any
endorsement
PAGE 15
78 Geo. L.J. 415, *446
of the President's action and could even condemn the action. As a final
and
perhaps drastic matter, Congress could use its appropriations power to deny
funding for the activity at issue.
The war powers cannot, and perhaps should not, be removed from the
political
arena. If Congress and the President are to have political parity,
politics may
be one of the most effective constraints on presidential warmaking. But
this is
true only if Congress is willing to assert itself. A mechanism for
consultation
would provide an important step toward achieving the political equilibrium
necessary for sound decisionmaking in matters of war and peace.
V. CONCLUSION
The war powers of Congress and the President are products of politics.
Since
1789, the President has gradually assumed the dominant warmaking role. By
virtue of congressional and judicial acquiescence in forceful executive
actions,
the President now enjoys an extreme advantage in the political arena. To
restore the political balance that the Framers envisioned, Congress must
reassert itself in warmaking decisions. This is particularly important for
preemptive military actions, which offer the President an opportunity to
seize
even more warmaking authority.
This note has argued that the President is constitutionally obligated to
consult with Congress when he orders preemptive military strikes. The
proposed
three-element model identifies the legitimacy of the President's authority
in a
given war powers scenario, thereby determining whether the President must
consult prior to taking preemptive action or whether he may delay
consultation
until after the event.
Finally, this note has proposed a mechanism for consultation. The
mechanism
is designed to ensure majoritarian participation in war powers decisions
while
promoting efficiency and executive accountability. By facilitating
congressional participation in war powers decisionmaking, the mechanism
moves
Congress toward political parity with the President. Such parity is
necessary
for Congress to compete and cooperate better with the powerful modern
Presidency.
FOOTNOTES:
nl See Ratner, The Co-ordinated Warmaking Power -- Legislative,
Executive and
Judicial Roles, 44 S. CAL. L. REV. 461, 462 (1971) (vague boundaries
between the
authority granted to Congress and the Executive in formulating military
policy
make distinctions between the authority of each branch "illusory"); cf.
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 635 (1951) (Jackson,
J.,
concurring) ("Presidential powers are not fixed but fluctuate, depending
upon
their disjunction or conjunction with those of Congress.").
n2 See Wallace, The War-Making Powers: A Constitutional Flaw?, 57
CORNELL L.
REV. 719, 728 (1972) ("There are great gaps in the Constitution as
written.");
see also A. SCHLESINGER, THE IMPERIAL PRESIDENCY 38 (1973) (presidential
treaty
power creates a constitutional gap regarding the war powers). But see
Velvel,
Commentary, 10 VA. J. INT'L L. 65, 67 (1969) (there is "no real gap in the
Constitution" -- the Framers knew exactly what they were doing by
subordinating
the President to Congress).
PAGE 16
78 Geo. L.J. 415, *446
n3 The overlap of the war powers, as with all shared powers, was
designed to
promote rational decisionmaking and to provide a system of checks and
balances
to curb the potential for abuse and tyranny. See W. REVELEY, WAR POWERS
OF THE
PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE BRANCHES? 62-63
(1981)
[hereinafter W. REVELEY, WAR POWERS] (discussing the Framers' reasoning for
involving both branches in areas such as the war powers and treaty-making);
Reveley, Commentary, 10 VA. J. INT'L L. 58, 60 (1969) ("By so involving
both
Congress and the President, the Framers hoped to avoid both hasty,
ill-conceived
wars and wars devoid of the requisite national backing. "); see
also
E.
CORWIN, TOTAL WAR AND THE CONSTITUTION 13 (1947) (discussing Hamilton's
recognition of the overlap between presidential and congressional warmaking
powers); A. SCHLESINGER, supra note 2, at 7, 19, 35 (Framers' division of
war
powers between Congress and the President was intentional). For a general
discussion about the powers shared between Congress and the President, see
L.
TRIBE, CONSTITUTIONAL LAW @ 2-2, at 15, @ 4-1, at 157 (1978).
n4 Interbranch tension arises from political jousting between the two
branches as they attempt to draw boundary lines that cannot be drawn. This
tension helps define the issues, which in turn encourages cooperation,
sound
decisions, and coherent policy. See W. REVELEY, WAR POWERS, supra note 3,
at 49
(Congress and the President "must cooperate if any sustained venture for
war and
peace is to succeed"); Rogers, Congress, The President, and War Powers, 59
CALIF. L. REV. 1194, 1198 (1971) (war powers decisions are most sound if
they
are a product of a joint process between Congress and the President). But
see
Abrams, Panama: How America Lost Its Will to Act, Wash. Post, Oct. 15,
1989, at
B1, col. 4 (recognizing that interbranch "rivalry" is a component of the
constitutional scheme, but arguing that the rivalry has eroded to a "nasty,
sometimes vicious brawl" that has paralyzed the government).
n5 Wallace, supra note 2, at 727 (war powers issues are inherently
political).
n6 See E. CORWIN, supra note 3, at 13 (Framers intended the war powers
overlap to promote cooperation in decisionmaking); A. SCHLESINGER, supra
note 2,
at 7 (Framers intended "interwoven responsibilities and competing
opportunities"
to make war powers decisionmaking a joint process); Rogers, supra note 4,
at
1198 (same).
n7 See Biden & Ritch, The War Power at a Constitutional Impasse: A
"Joint
Decision" Solution, 77 GEO. L.J. 367, 374-85 (1988) (describing the
accretion of
presidential power); see also E. CORWIN, THE PRESIDENT: OFFICE AND POWERS
208
(1958) (same); L. TRIBE, supra note 3, @ 2-4, at 19 (same).
n8 See W. REVELEY, WAR POWERS, supra note 3, at 12 (constitutional war
powers
issues take on entirely new dimensions as the "capacity," "will to use,"
and
"ultimate consequences" of using force abroad expand); Javits, War Powers
Reconsidered, FOREIGN AFF., Fall 1985, at 130, 140 (a congressional role is
especially necessary in the nuclear age because "advanced technology,
instantaneous communications and super-weapons" constitute a constant
threat to
society); Wright, The Power of the Executive to Use Force Abroad, 10 VA. J.
INT'L L. 43, 55 (1969) (expanding presidential powers increase danger to
national security in light of the development of inherently destructive
weapons,
the "shrinking of the world," and greater United States international
involvement).
PAGE 17
78 Geo. L.J. 415, *446
n9 War Powers: Origins, Purposes and Applications: Hearings Before the
Subcomm. on Arms Control, International Security and Science of the House
Comm.
on Foreign Affairs, 100th Cong., 2d Sess. 30 (1988) [hereinafter Hearings,
War
Powers: Origins, Purposes and Applications] (testimony of George R. Berdes,
former Staff Consultant) ("State-sponsored terrorism represents a new kind
of
warfare, accurately and properly described by President Reagan in the case
of
Libya as armed aggression.").
n10 A declared war is a general or "perfect" war. The Supreme Court has
characterized a declared war as "that which destroys the national peace and
tranquility, and lays the foundation of every possible act of hostility."
Miller
V. Miller (Case of the Resolution), 2 U.S. (2 Dall.) 1, 21 (1781).
nl 1 A statute that authorizes limited hostilities but does not declare
general war creates an "imperfect" war. Id. at 20; see Bas V. Tingy, 4
U.S. (4
Dall.) 37, 43 (1800) (Congress can authorize hostilities short of a
declared
war).
n12 BUREAU OF PUBLIC AFFAIRS, U.S. DEP'T OF STATE, SPECIAL REP. NO. 138,
LIBYA UNDER QADHAFI: A PATTERN OF AGGRESSION 1 (1986) [hereinafter LIBYA
UNDER
QADHAFI]; see M. SMYRL, CONFLICT OR CODETERMINATION? 76-77 (1988)
(discussing
Qaddafi's rise to power and the accompanying general escalation of tension
with
the United States); see generally Note, The U.S. Raid on Libya: A Forceful
Response to Terrorism, 14 BROOKLYN J. INT'L L. 187, 190-96 (1988) (by D.
Turndorf) [hereinafter Note, U.S. Raid on Libya] (discussing Libyan-United
States relations).
n13 AMBASSADOR-AT-LARGE FOR COUNTERTERRORISM, OFFICE OF THE SECRETARY OF
STATE, U.S. DEP'T OF STATE, JAN. FACT SHEET: LIBYA'S QUADHAFI CONTINUES
SUPPORT
FOR TERRORISM 1-2 (1989) [hereinafter CONTINUED LIBYAN TERRORIST SUPPORT];
see
Note, U.S. Raid on Libya, supra note 12, at 190-92 (characterizing
terrorism as
Qaddafi's primary instrument of foreign policy).
n14 See CONTINUED LIBYAN TERRORIST SUPPORT, supra note 13, at 3-5
(identifying examples of Libyan-supported terrorism against United States
citizens, officials, and interests); LIBYA UNDER QADHAFI, supra note 12,
at 7(summarizing Libyan terrorist acts between 1980-1985); see also Note, U.S.
Raid
on Libya, supra note 12, at 190-91 (alleging that Libya supported the 1972
massacre of 11 Olympic athletes in Munich).
n15 Weintraub, U.S., Citing Libyan Fire, Reports Attacking a Missile
Site and
Setting 2 Ships Ablaze, N.Y. Times, Mar. 25, 1986, at A1, col. 6; see
President's Report to the Speaker of the House of Representatives,
Relative to
the Libyan Attack on U.S. Forces Engaged in Freedom of Navigation
Exercises in
the Gulf of Sidra, 22 WEEKLY COMP. PRES. DOC. 423 (Mar. 26, 1986)
[hereinafter
President's Report on Libyan Attack] (informing Congress of the Libyan
attack on
United States forces). The Libyans fired SA-5 surface-to-air missiles at
United
States aircraft flying over the high seas in the Gulf of Sidra. Id. These
missiles missed their targets. Id.
n16 President's Report on Libyan Attack, supra note 15, at 423.
n17 Tagliabue, Two Killed, One Fifty-Five Hurt in Bomb Explosion at
Club in
Berlin, N.Y. Times, Apr. 6, 1986, at A1, col. 6; see M. SMYRL, supra note
12, at
78 (linking Libya to the bombing of the Berlin nightclub).
PAGE 18
78 Geo. L.J. 415, *446
n18 Gwertzman, Plots on Global Scale Charged, N.Y. Times, Apr. 15,
1986, at
A1, col. 3.
n19 War Powers, Libya and State-Sponsored Terrorism: Hearings Before the
Subcomm. on Arms Control, International Security and Science of the House
Comm.
on Foreign Affairs, 99th Cong., 2d Sess. 50 (1986) [hereinafter Hearings,
War
Powers, Libya and State-Sponsored Terrorism] (testimony of Rep. Lantos).
At the
hearing, Representative Lantos queried: "How on God's green Earth can
onejustify
the fact that the French were consulted three days in advance and our
congressional leadership was consulted three hours in advance?" Id.
n20 U.N. CHARTER art. 51. Article 51 provides that:
Nothing in the present Charter shall impair the inherent right of
individual
or collective self-defence if an armed attack occurs against a Member of
the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the
exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take
at any
time such action as it deems necessary in order to maintain or restore
international peace and security.
Id.
n21 President's Report to the Speaker of the House of
Representatives, Consistent with the War Powers Resolution, Relative to
U.S. Air
and Naval Forces Conducting Bombing Strikes on Terrorist Facilities and
Military
Installations in Libya, on April 14, 1986, 22 WEEKLY COMP. PRES. DOC. 499
(Apr.
16, 1986). The justification offered by President Reagan was rejected by
the
United Nations General Assembly. See G.A. Res. 41/38, 41 U.N. GAOR Supp.
(No.
23), at 34-35; Henkin, Use of Force: Law and U.S. Policy, in RIGHT V.
MIGHT:
INTERNATIONAL LAW AND THE USE OF FORCE 46 (1989) (criticizing President
Reagan's
claimed justifications of deterrence and preemption). But see Greenwood,
International Law and the United States' Air Operation Against Libya, 89
W. VA.
L. REV. 933, 942-44 (1987) (justifying bombing); Intoccia, American
Bombing of
Libya: An International Legal Analysis, 19 CASE W. RES. J. INT'L L. 177,
187-89
(1987) (same).
n22 The Paris Conference, which involved 145 nations and was convened
partly
in response to Iraq's March 1987 use of chemical weapons against Iran,
reviewed
the 1925 Geneva Convention on Chemical Weapons. Markham, War and
Finger-Pointing, N.Y. Times, Jan. 10, 1989, at A1, col. 1. Specifically,
it
addressed the fact that although the Convention bans the use of chemical
weapons, it does not ban production. Id. The conference concluded with the
participants agreeing that they would not use chemical weapons and that
they
would condemn such use. Declaration, Paris Conference on Chemical
Weapons, Jan.
11, 1989, reprinted in N.Y. Times, Jan. 12, 1989, at A10, col. 1.
n23 CONTINUED LIBYAN TERRORIST SUPPORT, supra note 13, at 6-7;
Department of
State, Press Conference by George P. Shultz at the Paris Chemical Weapons
Conference, Press Release No. 2, at 1 (Jan. 10, 1989); see also Gordon,
Libya
Says it Can Make Chemical Arms if Others Do, N.Y. Times, Jan. 10, 1989, at
A13,
col. 4 (Qaddafi denied that the purpose of the Rabta facility was to
produce
,
PAGE 19
78 Geo. L.J. 415, *446
chemical weapons).
Libya has reportedly used chemical weapons at least twice. In 1987,
Libya
used chemical weapons against a Chadian military unit. Duel Over Rabta,
ECONOMIST, Jan. 7, 1989, at 34. Chad suffered no casualties but because
the
wind was blowing the wrong way, six Libyans died. Id. In January 1989, a
Sudanese rebel group alleged that Libya had used chemical weapons against
it
during the previous six months. Pear, Sudanese Rebels Say They are
Victims of
Poison Gas, N.Y. Times, Jan. 10, 1989, at A12, col. 1.
n24 CONTINUED LIBYAN TERRORIST SUPPORT, supra note 13, at 6-7; Gordon,
supra
note 23, at A13, col. 4; Qaddafi, Warning on Force, Says He Wants U.S.
Talks,
N.Y. Times, Jan. 8, 1989, at A14, col. 1 [hereinafter Qaddafi, Warning on
Force
].
n25 Duel over Rabta, supra note 23, at 34; Qaddafi, Warning on Force,
supra
note 24, at A14, col. 3.
n26 Duel Over Rabta, supra note 23, at 33.
n27 Id.
n28 France, Canada, and Egypt accepted this assertion with few
questions.
Gordon, Soviets Dispute U.S. Assertion on Libyan Plant, N.Y. Times, Jan. 7,
1989, at A1, col. 5 [hereinafter Gordon, Soviets Dispute Assertion]. The
United
Kingdom said it had independent evidence confirming the United States
claim that
Rabta was a chemical weapons factory, but added that it did not support
the use
of force against Libya. Gordon, U.S. asks Soviet Aid in Pressing Libya on
Chemical Arms, N.Y. Times, Jan. 6, 1989, at A1, col. 1. West Germany was
slow
to accept the United States statement, probably because the United States
also
insisted that a West German chemical firm was helping Libya construct the
plant.
Sciolino, U.S. Criticizes Bonn on Response to Charges on Chemical Company,
N.Y.
Times, Jan. 6, 1989, at All, col. 1. The Soviet Union rejected the United
States claim. Gordon, Soviets Dispute Assertion, supra, at A1, col. 1.
n29 Markham, Among Europeans, Less Skepticism, N.Y. Times, Jan. 12,
1989, at
A10, col. 6.
n30 In 1986, President Reagan notified Congress only after ordering the
air
strike and only three hours before United States aircraft arrived over
Libya.
Hearings, War Powers, Libya and State-Sponsored Terrorism, supra note 19,
at 50
(testimony of Rep. Lantos). Similarly, President Reagan did not formally
notify
Congress of his decision to invade Grenada until after troops landed on
October
26, 1983, even though he made the decision on October 23, 1983. See Smith,
1,900 Troops, with Caribbean Allies, Invade Grenada and Fight Leftist
Units;
Moscow Protests; British are Critical, N.Y. Times, Oct. 26, 1983, at A1,
col. 6,
at A16, col. 3; Transcript of Schultz's News Conference on Why U.S. Acted,
reprinted in N.Y. Times, Oct. 26, 1983, at A18, col. 2. Although the
President
notified congressional leadership one day after he made the decision, no
consultation actually occurred. One legislator stated: "We weren't asked
for
advice
We were informed what was taking place." Smith, supra, at
A16,
col. 3; see generally Quigley, The United States Invasion of Grenada:
Stranger
Than Fiction, 18 INTER-AM. L. REV. 271, 337-47 (1986) (analyzing the
sequence of
events surrounding the Grenada invasion to determine when the President
actually
made the decision). But cf. Hearings, War Powers, Libya and
State-Sponsored
,
PAGE 20
78 Geo. L.J. 415, *446
Terrorism, supra note 19, at 55 (testimony of Rep. Levine) (acknowledging
as
valid the President's justification for not consulting Congress prior to
ordering interception of hijackers of the cruise ship Achille Lauro); see
also
id. at 53 (testimony of Abraham Sofaer) (justifying the President's
failure to
consult). President Reagan's track record suggested that he would not
consult
with Congress before deciding to launch a preemptive strike against the
Rabta
facility.
n31 See infra Part II.A.1.
n32 See infra Part II.A.2.
n33 See infra Part II.B. Some presidents have erroneously relied upon
their
foreign affairs powers as constitutional authority for unilaterally
introducing
troops into hostilities. See infra text accompanying notes 95-101.
Because the
Framers envisioned congressional participation in war powers
decisionmaking, the
foreign affairs source of authority to direct the military must stop where
the
congressional and presidential war powers begin. The President's foreign
affairs powers should be rejected as a source of exclusive presidential war
powers because they open the door to executive abuse and tyranny. This
potential is evident from the alarmingly sweeping language that the
Department
of State used to justify President Truman's decision to intervene in Korea:
Not only has the President the authority to use the Armed Forces in
carrying
out the broad foreign policy of the United States and implementing
treaties, but
it is equally clear that this authority may not be interfered with by the
Congress in the exercise of powers which it has under the Constitution.
Assignment of Ground Forces of the United States to Duty in the European
Area, Hearings on S. Con. Res. 8 Before the Senate Comms. on Foreign
Relations
and Armed Services, 82d Cong., 1st Sess. 92-93 (1951) (statement of
Secretary of
State Dean Acheson), quoted in M. PUSEY, THE WAY WE GO TO WAR 9 (1969).
Similarly, the State Department justified the deployment of military
forces
in Vietnam in part by relying upon the President's foreign affairs powers:
Under the Constitution, the President, in addition to being Chief
Executive,
is Commander in Chief of the Army and Navy. He holds the primary
responsibility
for the conduct of United States foreign relations. These duties carry
very
broad powers, including the power to deploy American forces abroad and
commit
them to military operations when the President deems such actions
necessary to
maintain the security and defense of the United States
L. MEEKER, U.S. DEP'T OF STATE, THE LEGALITY OF U.S. PARTICIPATION IN
THE
DEFENSE OF VIET-NAM 11-12 (Mar. 4, 1966), quoted in M. PUSEY, supra, at
6. For
an analysis of the various justifications employed by Presidents Kennedy,
Johnson, and Nixon in the Vietnam War, see generally A. SCHLESINGER, supra
note
2, at 177-207.
The President may justifiably employ the military as an arm of foreign
policy
in situations that are unlikely to provoke armed conflict, but a general
foreign
policy exception to the war powers would allow the President to make war
at his
pleasure under the pretext of foreign affairs.
n34 U.S. CONST. art. I, @ 8, cl. 11.
PAGE 21
78 Geo. L.J. 415, *446
n35 THE FEDERALIST No. 69, at 418 (A. Hamilton) (C. Rossiter ed. 1961)
(envisioning the President as "first general and admiral of the military
and
armed forces"); see also Javits, supra note 8, at 132 (Framers intended to
provide the President with tactical authority while withholding the
ability to
declare war); Reveley, Commentary, supra note 3, at 64 (Framers'
substitution of
the word "declare" for the word "make" in article I indicates that they
did not
intend for Congress to exercise control over all aspects of war, but
merely over
its initiation); Wallace, supra note 2, at 744-46 (Congress has the
exclusive
power to declare war but may not attempt to control how it is conducted).
n36 See Wallace, supra note 2, at 744-46 (although Congress enjoys
exclusive
constitutional authority to declare war, it may not exercise control over
presidential "core powers" inherent in the President's constitutional
grant of
power under the commander in chief clause); see also Wallace, The
President's
Exclusive Foreign Affairs Powers Over Foreign Aid, 1970 DUKE L.J. 293,
314-21
[hereinafter Wallace, Exclusive Powers] (discussing the President's
"traditional
core area [that] consists of a wide range of diplomatic functions and those
functions of the Commander-in-Chief power as have foreign affairs
importance.").
n37 See Wallace, supra note 2, at 745 (discussing the scope of the
President's exclusive powers).
n38 Wallace, Exclusive Powers, supra note 36, at 314; see Ex parte
Milligan,
71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (Congress has the
power to legislate as necessary to administer war "except such as
interferes
with the command of the forces and the conduct of campaign").
n39 The President might have argued that a de facto general war was
created
in 1986, when Libyan military forces and Libyan-supported terrorists
attacked
United States interests. See supra text accompanying notes 15-17.
However,
this argument would have run counter to the general conception of "perfect"
wars, which by definition require a formal congressional declaration of
war.
Thomas Jefferson and Alexander Hamilton bitterly debated the extent to
which
an attack, with no congressional response, could trigger the President's
war
powers. Jefferson believed that the President could only respond
defensively
until Congress authorized other uses of force. M. PUSEY, supra note 33, at
54-55. Hamilton, however, argued that once United States interests had
been
attacked, the President could take whatever action he believed was
necessary.
See Note, Congress, The President, and the Power to Commit Forces to
Combat, 81
HARV. L. REV. 1771, 1779-80 (1968) [hereinafter Note, Power to Commit
Forces].
Under a constitutional analysis, Jefferson's argument must prevail.
Recognizing a de facto war would violate the spirit of the Constitution by
eliminating Congress from the war powers equation and providing the
President
with unbridled warmaking discretion.
n40 When the Constitution was written, international law treatises
defined
war broadly. Lofgren, On War-Making, Original Intent, and Ultra-Whiggery,
21
VAL. U.L. REV. 53, 57 (1986). Thus, this conception of a limited war is
consistent with the Framers' views.
n41 U.S. CONST. art. I, @ 8, cl. 11. A letter of marque and reprisal
authorized the owner of a private vessel to attack and capture enemy ships.
PAGE 22
78 Geo. L.J. 415, *446
BLACK'S LAW DICTIONARY 814 (5th ed. 1979); see Reveley, Commentary, supra
note
3, at 63-64 (constitutional grant of authority to Congress to issue
letters of
marque and reprisal indicates that the Framers intended for Congress to
control
"all involvement of American forces in combat, except in response to sudden
attack"). The 1856 Declaration of Paris banned the practice of issuing
letters
of marque and reprisal. BLACK'S LAW DICTIONARY, supra, at 814.
n42 For examples of legislation authorizing imperfect war, see the War
Powers
Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified as amended
at 50
U.S.C. @@ 1541-1548 (1982)), and the Gulf of Tonkin Resolution, Pub. L. No.
88-408, 73 Stat. 384 (1964), repealed by 84 Stat. 2053 (1971). Although
the
means by which Congress may authorize an imperfect war have changed, the
importance of Congress' involvement has not. See Hearings, War Powers:
Origins,
Purposes and Applications, supra note 9, at 164 n.57 (testimony of Elliot
Richardson) (because proper constitutional interpretation requires an
understanding of the principles that underlie the separation of powers, it
is
misleading to focus upon specific 18th century devices or mechanisms); see
also
Hearings, War Powers, Libya and State-Sponsored Terrorism, supra note 19,
at 125 (testimony of Prof. W. Taylor Reveley) ("deeply rooted in the language of
the
Constitution
is the necessity that Congress participate in American
decisions regarding the use of force against other states, irrespective of
whether the use of force requires secrecy, speed or only modest coercion").
n43 See Fleming V. Page, 50 U.S. (9 How.) 603, 615 (1850) (the
President may
direct the movement of armed forces placed at his command, but only within
the
limits established by Congress); Little V. Baremme, 6 U.S. (2 Cranch) 170,
177-79 (1804) (conduct of an imperfect war is limited to actions
authorized by
Congress); Talbot V. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801) (war comes in
two
flavors under the Constitution -- limited and general; in a limited war,
the
President can go no further than the extent of his commission); see
generally E.
KEYNES, UNDECLARED WAR 37 (1982) (discussing case law that defines the
imperfect
war concept).
n44 Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified as amended at 50
U.S.C.
@@ 1541-1548 (1982)).
n45 Pub. L. No. 99-399, 100 Stat. 853 (1986) (codified at 22 U.S.C. @
4801
(Supp. V 1987)).
n46 50 U.S.C. @ 1541(c) (1982). A logical reading of @ 2(c) of the War
Powers Resolution envisions that the President may exercise his war powers
in
three situations. First, if a threat against United States interests is
imminent, the President may invoke his constitutional self-defense power
without
relying on statutory authority. See infra Part II.B. Second, if the
United
States is attacked and the threat remains, the President may justify a
military
response either under his self-defense power, see id., or under the War
Powers
Resolution. Finally, if United States interests are attacked but the
threat has
abated, the President may respond (up to 60 days) with military force
pursuant
to the War Powers Resolution, even though this response might not be
justified
under his self-defense power. If a threat is potential but not yet
imminent,
neither the War Powers Resolution nor the self-defense power would
authorize a
military response.
n47 See supra Part II.A.1.
PAGE 23
78 Geo. L.J. 415, *446
n48 The tense of the plain language appears dispositive: "a national
emergency created by an attack." 50 U.S.C. @ 1541(c) (1982); see also
Biden &
Ritch, supra note 7, at 386 (concluding that the War Powers Resolution
does not
reach rescue situations or situations in which the President is
"forestalling
imminent attack" (emphasis in original)).
n49 Pub. L. No. 99-399, 100 Stat. 853 (1986) (codified at 22 U.S.C. @
4801
(Supp. V 1987)).
n50 H.R. 4611, 99th Cong., 2d Sess. @ 4(b) (1986). This bill was one
of 13
incorporated into the Omnibus Diplomatic Security and Antiterrorism Act.
n51 The Act likely would have withstood a constitutional challenge. See
United States V. Curtiss-Wright Corp., 299 U.S. 304, 320 (1936) (broad
delegation of authority is permissible in the area of foreign affairs); see
generally L. TRIBE, supra note 3, @ 4-2, at 158 (discussing the delegation
doctrine).
n52 22 U.S.C. @ 4801 (Supp. V 1987). The Act primarily focuses on
diplomatic
security. It provides no authority for the President to send military
forces
abroad to combat international terrorism.
n53 Hearings, War Powers, Libya and State-Sponsored Terrorism, supra
note 19,
app. 7, at 224 (summary prepared by Ellen C. Collier, Specialist in United
States Foreign Policy, Foreign Affairs and National Defense Division,
Congressional Research Service, Library of Congress).
n54 The President either could have relied on his clearly defined
warmaking
powers or on powers implied through constitutional gaps. In Youngstown
Sheet &
Tube Co. V. Sawyer, 343 U.S. 579 (1952), Justice Jackson developed a
framework
for analyzing the President's exercise of war powers that were not
specifically
granted by the Constitution. Id. at 635 (Jackson, J., concurring). He
argued
that the "President's powers are not fixed but fluctuate, depending upon
their
disjunction or conjunction with those of Congress." Id. According to
Justice
Jackson, presidential actions within the realm of constitutional gaps may
fall
into one of three categories. First, when the President acts consistent
with
the will of Congress, his power is at a maximum. Id. at 636-37. Second,
when
the President acts in the face of congressional silence, the
constitutionality of the President's actions is uncertain. Id. at 637.
Finally,
when the President acts in opposition "to the express or implied will of
Congress, his power is at its lowest ebb, for then he can rely only upon
his
constitutional powers minus any constitutional powers of Congress over the
matter." Id.
This note proposes a more fluid framework for defining boundaries in the
constitutional tug-of-war between the President and Congress. Rather than
focusing on three discrete categories, it envisions a continuum, with the
left
endpoint representing exclusive presidential constitutional power and the
right
endpoint representing exclusive congressional constitutional power. The
center
of the continuum represents an area of shared constitutional powers,
including
presidential powers that are triggered by statutory authorization. Under
this
analysis, President Reagan could have unilaterally ordered a preemptive
military
strike against the Rabta plant only if the threat posed by the plant
invoked a
presidential power that would appear on the continuum to the left of the
point
at which the shared presidential/congressiona powers would begin.
PAGE 24
78 Geo. L.J. 415, *446
n55 At least one commentator has argued that the self-defense power
does not
spring from any specific constitutional provision, but rather is "a
necessary
concomitant of sovereignty itself." Note, Power to Commit Forces, supra
note 39,
at 1778.
n56 See U.S. CONST. art. 1, @ 8, cl. 15 (giving Congress authority "[t]o
provide for calling forth the Militia to
repel Invasions"); id. @
10, cl.
3 ("No State shall, without the Consent of Congress
engage in War,
unless
actually invaded, or in such imminent Danger as will not admit of delay.").
n57 Id. art II, @ 2, cl. 1.
n58 Id. @ 1, cl. 1.
n59 Id. @ 2, cl. 1.
n60 See THE FEDERALIST No. 69, at 418 (A. Hamilton) (C. Rossiter ed.
1961) (
President would have "supreme command and direction of the military and
naval
forces"); W. REVELEY, WAR POWERS, supra note 3, at 64-65 (Framers
recognized the
need for "single command" of the military during wartime).
n61 Article IV, section 4 provides, in part, that "[t]he United States
shall
guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion
U.S. CONST. art. IV, @
4.
n62 See W. REVELEY, WAR POWERS, supra note 3, at 39 (discussing the link
between the clauses). That the Framers intended the President to retain
the
power to "repel sudden attacks" should come as no surprise. See id.
("[r]esponse to attack [was] a perennial favorite" for discussion at the
Constitutional Convention). Not only does this presidential power make
sense as
a matter of military efficiency, but it is also consistent with the
Framers'
dominant view of executive power. See THE FEDERALIST 70, at 423 (A.
Hamilton)
(C. Rossiter ed. 1961) ("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 "). But see Lofgren, War Making
Under
the Constitution: The Original Understanding, 81 YALE L.J. 672, 682-83
(1972)
(article IV, @ 4 does not require the inference that the President was to
have
exclusive power to respond in defense of the states).
n63 A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE
ORIGINS
31-32 (1976); see also E. FIRMAGE & F. WORMUTH, TO CHAIN THE DOG OF WAR 18
(1986) (summarizing the debate over the changing of the constitutional
language
from "make" to "declare," and the individual delegates' views).
n64 See A. SCHLESINGER, supra note 2, at 4 (although the records of the
debate over the change in constitutional language are ambiguous,
apparently none
of the delegates would have denied the President the power to respond in
self
defense); Lofgren, supra note 62, at 675-77 (records of the debates are
unclear,
but at least some delegates believed that the change in wording allowed the
Executive to retain power to repel attacks); Note, Power to Commit Forces,
supra
note 39, at 1773 (same). Perhaps the reason that the records of the
debate are
so ambiguous is that the debate was relatively uncontroversial and filled
only
"one page out of the 1,273 that contained the printed records of the
Constitution." Lofgren, supra note 62, at 675.
,
PAGE 25
78 Geo. L.J. 415, *446
n65 Velvel, supra note 2, at 67; see W. REVELEY, WAR POWERS, supra note
3, at
54 (Framers were only too familiar with tyranny by the British monarch,
and they
did not intend to incorporate this conception of the Executive into the
Constitution).
n66 See Fleming V. Page, 50 U.S. (9 How.) 603, 615 (1850) ("As
commander-in-chief, [the President] is authorized to direct the movements
of the
naval and military forces placed by law at his command, and to employ them
in
the manner he may deem most effectual to harass and conquer and subdue the
enemy."); THE FEDERALIST No. 69, at 418 (A. Hamilton) (C. Rossiter ed.
1961)
(the President's commander in chief powers "amount to nothing more than the
supreme command and direction of the military and naval forces, as first
general
and admiral of the Confederacy; while that of the British King extends to
the
declaring of war and to the raising and regulating of fleets and armies --
all
which, by the Constitution under consideration, would appertain to the
legislature" (footnote omitted) (emphasis in original)); W. REVELEY, WAR
POWERS,
supra note 3, at 63-65 (clause "viewed as a modest grant" limited to
tactical
decisions during authorized conflicts).
n67 U.S. CONST. art. II, @ 1, cl. 1.
n68 E. CORWIN, supra note 3, at 11; see also Note, Power to Commit
Forces,
supra note 39, at 1777 (discussing the debate between Hamilton (Pacificus)
and
Madison (Helvidius) over the nature and extent of the President's war
powers and
foreign relations powers).
n69 U.S. CONST. art. I, @ 1.
n70 See id. art. II, @ 1, cl. 1.
n71 7 WORKS OF ALEXANDER HAMILTON 80 (1851), quoted in G. STONE, L.
SEIDMAN,
C. SUNSTEIN & M. TUSHNET, CONSTITUTIONAL LAW 361 (1986). For Hamilton's
general
philosophy, see THE FEDERALIST No. 70, at 423 (A. Hamilton) (C. Rossiter
ed.
1961) ("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. "). Hamilton conceded, however, that the President's powers
were
limited in the warmaking sphere, that the Executive could not control the
exercise of Congress' powers, and that the Constitution created concurrent
war
powers authority in Congress and the President. See E. CORWIN, supra note
3, at
13 (discussing Hamilton's views).
n72 See E. CORWIN, supra note 3, at 11-12 (explaining Madison's
arguments and
his debate with Hamilton). The Hamilton-Madison debate was never and will
never
be resolved. This debate reflects an ideological schism over the
relationship
between Congress and the President and over their respective warmaking
roles.
n73 E. CORWIN, supra note 7, at 277; see also Note, Power to Commit
Forces,
supra note 39, at 1775-76 (discussing the rapid expansion of presidential
power
under the commander in chief clause).
n74 See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (President is
"bound to resist" invasion without waiting for legislative approval);
Durand V.
Hollins, 8 F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No. 4186) (President has
power
to respond with military force if United States citizens or property are
PAGE 26
78 Geo. L.J. 415, *446
threatened). Some scholars read the concept of self defense narrowly,
limiting
the availability of a military response to invasions of United States
territory
or "some other attack." E. FIRMAGE & F. WORMUTH, supra note 63, at 34.
But this
view has been criticized as overly simplistic because it fails to define
instances in which "some other attack" might justify use of the
self-defense
power. Born, Review Essay: The President's War Powers (Book Review), 23
TEX.
INT'L L.J. 153, 158 (1988) (reviewing E. FIRMAGE & F. WORMUTH, TO CHAIN
THE DOG
OF WAR (1986)).
n75 6 THE WORKS OF DANIEL WEBSTER 261 (1851), quoted in E. FIRMAGE & F.
WORMUTH, supra note 63, at 49.
n76 See Wallace, supra note 2, at 737 (President has often introduced
forces
into hostile action without congressional authorization); see also Note,
Power
to Commit Forces, supra note 39, at 1785 ("a widespread practice has
developed
of citing the commander-in-chief clause as independent authority for doing
apparently 'anything, anywhere that can be done with an army or navy"
(quoting
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 641-42 (1952)
(Jackson, J.,
concurring)); see generally A. SCHLESINGER, supra note 2, at 35-67
(summarizing
instances of unilateral presidential directives to the military).
n77 See M. PUSEY, supra note 33, at 54-55 (discussing Barbary Coast
incident
of 1801-1804); see also Biden & Ritch, supra note 7, at 375 (same); Note,
Power
to Commit Forces, supra note 39, at 1779 (same).
n78 See M. PUSEY, supra note 33, at 53 (Jefferson was "scrupulous in
respecting the authority of Congress to commit the country to war").
n79 See Note, Power to Commit Forces, supra note 39, at 1779-80
(discussing
Hamilton's broad view of the presidential prerogative).
n80 See M. PUSEY, supra note 33, at 60-61 (discussing Polk's invasion of
Mexico); Biden & Ritch, supra note 7, at 376-77 (same).
n81 Note, Power to Commit Forces, supra note 39, at 1780 (footnote
omitted).
n82 See id. (citing Act of May 13, 1846, ch. 16, 9 Stat. 9); see also
President's Message to Congress, May 11, 1846, reprinted in CONG. GLOBE,
29th
Cong., 1st Sess. 783 (1846), cited in Ratner, supra note 1, at 469 n.46
(Polk
advised Congress that his actions were in self defense).
n83 Representative Abraham Lincoln questioned President Polk's motives
and
the constitutionality of his actions. See M. PUSEY, supra note 33, at 61
(discussing Lincoln's criticism); see also Biden & Ritch, supra note 7, at
377
(same). Lincoln's statement in response to Polk's actions is quoted infra
in
the text accompanying note 149.
n84 See A. SCHLESINGER, supra note 2, at 58-60 (Lincoln exercised
"sweeping
action in the absence of congressional authorization," expanding the scope
of
both civilian and military presidential power).
n85 See id. at 58 (between April 12, 1861, and July 4, 1861, "Lincoln
ignored
one constitutional provision after another"); see also Biden & Ritch,
supra note
7, at 378 (Supreme Court Justice Benjamin Curtis accused Lincoln of being a
"military despot").
PAGE 27
78 Geo. L.J. 415, *446
n86 Lincoln reportedly stated: "Was it possible to lose the nation and
yet
preserve the Constitution?" A. SCHLESINGER, supra note 2, at 59.
n87 Id. at 58-60.
n88 Id. at 60.
n89 See id. at 88-89 (providing an overview of McKinley's response to
the
Boxer Rebellion); see also M. PUSEY, supra note 33, at 60 (same); Biden &
Ritch,
supra note 7, at 379 (same).
n90 See M. PUSEY, supra note 33, at 60 (Boxer Rebellion was a "policing
operation"); A. SCHLESINGER, supra note 2, at 88 (McKinley's "military
intervention [was] for political purposes"); Biden & Ritch, supra note 7,
at 379
(proffered justifications were pretextual).
n91 Ratner, supra note 1, at 470 (citing 34 CONG. REC. 4 (1900)).
n92 A. SCHLESINGER, supra note 2, at 89.
n93 For a thorough discussion of Congress' attempts to recover from 140
years
of acquiescence, see A. SCHLESINGER, supra note 2, at 68-99.
n94 For example, Congress did not give President Roosevelt explicit
statutory
authority to declare a national emergency before the United States entered
World
War II. In searching for the authority to declare a limited national
emergency,
Roosevelt located 99 statutes, spanning 141 years, that provided limited
grants
of presidential power in emergency situations. A. SCHLESINGER, supra note
2, at
111. He read these statutes in conjunction with what he believed to be his
inherent constitutional powers and thereby expanded his wartime
authority. Id.
at 122-26. Ever since Roosevelt's presidency, United States citizens have
looked to the President to be the preeminent decisionmaker during times of
national crisis. See id. at 530 (describing FDR's efect upon presidency).
Roosevelt seduced the country SO effectively that few contemporaries
realized
the lasting impact he would have upon the scope of presidential power.
See R.
DALLEK, FRANKLIN D. ROOSEVELT AND AMERICAN FOREIGN POLICY 313, 529 (1979)
(describing FDR's presidency).
n95 A. SCHLESINGER, supra note 2, at 135; see M. PUSEY, supra note 33,
at
86-93 (describing Truman's arrogation of power during the Korean War);
Friedman,
Waging War Against Checks and Balances -- The Claim of an Unlimited
Presidential
War Power, 57 ST. JOHN'S L. REV. 213, 226-27 (1983) (Truman was the first
president to claim broad inherent power to direct the military); Note,
Power to
Commit Forces, supra note 39, at 1791 (describing Truman's actions); see
generally A. SCHLESINGER, supra note 2, at 127-76 (accretion of
presidential
power accelerated during the Korean War).
n96 See M. PUSEY, supra note 33, at 86-93 (circumstances permitted
consultation); A. SCHLESINGER, supra note 2, at 134 (same).
n97 Truman was initially undecided about the source of his authority to
introduce troops into Korea and even considered requesting a joint
resolution to
ratify his decision. A. SCHLESINGER, supra note 2, at 132. He ultimately
decided not to consult with Congress and relied upon a combination of his
PAGE 28
78 Geo. L.J. 415, *446
treaty, executive, commander in chief, and foreign affairs powers. Id. at
131-
33; see also M. PUSEY, supra note 33, at 94 (discussing Truman's search for
authority).
n98 During the Cuban Missile Crisis, President Kennedy relied on his
inherent
executive power to order a blockade of Cuba. A. SCHLESINGER, supra note
2, at
174-75; cf. Note, Power to Commit Forces, supra note 39, at 1792 (Kennedy
also
claimed authorization from the Organization of American States Resolution).
n99 President Johnson ordered troops to the Dominican Republic in 1965,
claiming that American lives were endangered by a revolution. Mohr,
President
Sends Marines to Rescue Citizens of U.S. From Dominican Fighting, N.Y.
Times,
Apr. 29, 1965, at A1, col. 6. Johnson dispatched 405 Marines
immediately. Id.
By the time the operation had concluded, he had deployed a total of 22,000
troops. A. SCHLESINGER, supra note 2, at 178. President Johnson did not
precisely identify the source of his authority. See Presidential Text,
Statement on Dominican Republic, reprinted in N.Y. Times, Apr. 29, 1965,
at A14,
col. 1.
n100 President Nixon justified the invasion of Cambodia and the bombing
of
Laos based upon an "elastic" theory of the commander in chief clause. A.
SCHLESINGER, supra note 2, at 192. Nixon contended that under the
commander in
chief clause, he had the broad authority to deploy troops into armed
conflict
anywhere in the world upon his own initiative. Id. at 190.
n101 President Reagan relied on his commander in chief clause powers to
justify both the 1983 invasion of Grenada and the 1986 air strike against
Libya.
See President's Report to the Speaker of the House, 22 WEEKLY COMP. PRES.
DOC.
499 (Apr. 16, 1986) (Libya); Hearings, War Power, Libya and State-Sponsored
Terrorism, supra note 19, at 185 (testimony of Rep. Fascell) (discussing
President Reagan's justification for the air strike against Libya);
President's
Letter to the Speaker of the House and the President Pro Tempore of the
Senate
on the Deployment of United States Forces in Grenada, 2 PUB. PAPERS 1512-13
(Oct. 25, 1983) [hereinafter President's Letter on Grenada].
n102 But see Fleming V. Page, 50 U.S. (9 How.) 603, 615 (1850) (narrowly
construing the commander in chief clause power to be limited to the
direction of
"movements of the naval and military forces placed by law at [the
President's]
command").
n103 67 U.S. (2 Black) 635 (1863).
n104 Id. at 670.
n105 Id.
n106 Id. at 670. But cf. Note, Power to Commit Forces, supra note 39,
at 1781
(arguing that the expansion of the commander in chief power is not without
"inherent limits" because the definitional constraints of "sudden attack"
provide some check on the President).
n107 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4186).
n108 Id. at 111. For a general overview of the bombardment of Greytown,
see
M. PUSEY, supra note 33, at 62-63.
PAGE 29
78 Geo. L.J. 415, *446
n109 8 F. Cas. at 111.
nl 10 Id.
nl 11 Id. at 112 (emphasis added). In dictum, Justice Nelson discussed
what
today might be considered a preemptive strike:
Acts of lawless violence, or of threatened violence to the citizen or
his
property, cannot be anticipated and provided for; and the protection, to be
effectual or of any avail, may, not unfrequently [sic], require the most
prompt
and decided action. Under our system of government, the citizen abroad is
as
much entitled to protection as the citizen at home. The great object and
duty
of government is the protection of the lives, liberty, and property of the
people composing it, whether abroad or at home; and any government failing
in
the accomplishment of the object, or the performance of duty, is not worth
preserving.
Id.
nl 12 M. PUSEY, supra note 33, at 62-63 (citation omitted).
n113 Although at one time United States citizens may have been
threatened by
the Nicaraguan mob, a fair reading of the facts strongly suggests that the
threat had abated and that the bombardment was purely for retribution.
Thus, at
least one commentator has suggested that using Durand as precedent for self
defense could not be "father from the mark." See Wormuth, The Nixon Theory
of
the War Power: A Critique, 60 CALIF. L. REV. 623, 658 (1972).
n 14 See A. SCHLESINGER, supra note 2, at 190-91; cf. Wormuth, supra
note
113, at 664 (the combination of the "commander-in-chief clause and the
supposed
precedents [including Durand]" has provided the President with improper
authority).
nl 15 See A. SCHLESINGER, supra note 2, at 190-91.
nl 16 343 U.S. 579 (1952).
nl 17 Id. at 582.
nl 18 Id. at 587-88.
nl 19 One possible reading is that the President cannot regulate domestic
industry upon the mere assumption that such action is necessary to defend
or
protect the United States -- even when the proposed regulation is incident
to
military hostilities. Or, Youngstown might mean only that when Congress
provides a statutory mechanism to regulate an industry, the President
cannot
flout the purpose underlying that statute. For an analysis of the
Youngstown
case, see generally M. MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE
LIMITS OF
PRESIDENTIAL POWER (1977); Corwin, The Steel Seizure Case: A Judicial Brick
Without Straw, 53 COLUM. L. REV. 53 (1953).
n120 Youngstown, 343 U.S. at 610-11 (Frankfurter, J., concurring).
n121 See, e.g., Baker V. Carr, 369 U.S. 186, 211-14 (1962) (foreign
affairs
,
PAGE 30
78 Geo. L.J. 415, *446
and war powers issues are nonjusticiable political questions for which the
courts lack judicially manageable standards); Holtzman V. Schlesinger, 484
F.2d
1307, 1308-09 (2d Cir. 1973) (legality of military activities in Cambodia
is a
nonjusticiable political question); Berk V. Laird, 429 F.2d 302, 305 (2d
Cir.
1970) (same); see generally L. TRIBE, supra note 3, @ 4-6, at 173 (courts
are
reluctant to become embroiled in political disputes between the other
branches);
id. @ 3.16, at 71-79 (outlining the political question doctrine).
n122 See Reveley, Presidential War-Making: Constitutional Prerogative or
Usurpation?, 55 VA. L. REV. 1243, 1255-56 (1969) (popular expectations
influence
the President's actions just as the President's actions shape popular
expectations); Wright, supra note 8, at 51 (public opinion influences the
President in war powers decisionmaking).
n123 Legislators are unlikely to protest unconstitutional presidential
decisions that are politically popular. See Youngstown, 343 U.S. at 637
(Jackson, J., concurring) ("any actual test of power [would be] likely to
depend
on the imperatives of events and contemporary imponderables rather than on
abstract theories of law"). This is largely because of their concerns with
being reelected. See generally D. MAYHEW, CONGRESS: THE ELECTORAL
CONNECTION
(1974).
n124 See McDougal, Jurisprudence for a Free Society, 1 GA. L. REV. 1, 4
(1966) (discussing the effect of community expectations upon judicial
decisionmaking).
n125 See Wright, supra note 8, at 51 (public opinion and the resulting
congressional debate influence the President on war powers issues).
n126 Reveley, supra note 3, at 60-61.
n127 Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified as amended at 50
U.S.C. @@ 1541-1548 (1982)).
n128 See 119 CONG. REC. 36,177 (1973) (discussing the background and
purpose
of the War Powers Resolution).
n129 See A. BICKEL, THE LEAST DANGEROUS BRANCH 25 (1962) (political
insulation allows judges to follow "the ways of the scholar"); Ackerman,
The
Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1031
(1984)
(judicial review insulates judges from the "pulling and hauling" of normal
politics); Brest, The Conscientious Legislator's Guide to Constitutional
Interpretation, 27 STAN. L. REV. 585, 588 (1975) (judiciary is the most
"disinterested" interpreter of the Constitution).
n130 The New Deal cases provide a graphic example of how constitutional
decisionmaking is saturated by politics. NLRB V. Jones & Laughlin Steel
Corp.,
301 U.S. 1 (1937), commonly referred to as the "switch in time that saved
nine,"
represented a judicial about-face in response to President Roosevelt's
threat to
pack the Supreme Court to save New Deal programs that were extremely
popular
with the United States public. Compare Schecter Poultry Co. V. United
States,
295 U.S. 495, 551 (1935) (invalidating the National Industrial Recovery Act
(NIRA) as an unconstitutional delegation of legislative authority to the
Executive) and Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936) (NIRA's
attempt to assist the coal industry was an unconstitutional extension of
PAGE 31
78 Geo. L.J. 415, *446
legislative authority to the Executive) with Jones & Laughlin Steel Corp.,
301
U.S. at 40-41 (distinguishing Schecter and Carter Coal but effectively
overruling those decisions); cf. Ackerman, supra note 129, at 1055
(interbranch
conflict such as that which occurred in the 1930s "refine[s] the issues of
high
legal principle involved in the political conflict and thereby allow[s]
Americans to place a constitutional meaning upon a sustained series of
electoral
victories and legislative successes"); see generally A. MASON, W. BEANEY &
D.
STEPHENSON, JR., AMERICAN CONSTITUTIONAL LAW 229-37 (7th ed. 1983)
(detailing
the Court's New Deal decisions and its response to political pressures); R.
MCCLOSKEY, THE AMERICAN SUPREME COURT 174-79 (1960) (same).
Public opinion also influences judges in the adjudication of statutory
issues. See R. DWORKIN, LAW'S EMPIRE 349 (1986) (the "character and
spread of
public opinion" is relevant to statutory interpretation).
n131 Quotes, A.B.A. J., Aug. 1989, at 30.
n132 See W. REVELEY, WAR POWERS, supra note 3, at 11 (under current
interpretations of the Constitution, international law poses no major
obstacle
to presidential decisionmaking). But cf. Wright, supra note 8, at 56
("[n]ational security in the present world requires a subordination of
constitutional power to international law").
n133 Some scholars contend that international law provides the proper
framework for analyzing the constitutionality of military action. See
Moynihan,
The Modern Role of Congress in Foreign Affairs, 9 CARDOZO L. REV. 1489,
1500
(1988) (international law is the proper framework to determine whether the
use
of force is both "in [self-]defense and
defensible"); Wright, supra
note
8, at 55 (international law is a proper means of controlling presidential
discretion in the war powers). But see W. REVELY, WAR POWERS, supra note
3, at
11 (international law imposes no constraint upon war powers
decisionmaking).
n134 The Paquette Habana, 175 U.S. 677, 700 (1900). Even when
international
law is incorporated into United States law, it cannot modify the
Constitution.
Hearings, War Powers, Libya and State-Sponsored Terrorism, supra note 19,
at 150
(testimony of Profs. Cox & Reveley) (neither the United Nations Charter
nor anyother treaty can "circumvent, modify, amend, or repeal the Constitution").
Moreover, under some circumstances the President may be
constitutionally obligated to ignore international law. See E. FIRMAGE &
F.
WORMUTH, supra note 63, at 140-41 (President may not act pursuant to
international law on subject matter that "has been entrusted by the
Constitution
to Congress, not to the President"); see generally G. ALLISON, THE ESSENCE
OF
DECISION (1971).
n135 U.S. CONST. art. II, @ 3.
n136 For example, in 1984 Nicaragua complained to the United Nations
that the
United States had violated international law by mining Nicaraguan
harbors. See
Joyner & Grimaldi, The United States and Nicaragua: Reflections on the
Lawfulness of Contemporary Intervention, 25 VA. J. INT'L L. 621, 637 (1985)
(discussing the Nicaraguan charges and the United States response). The
United
States vetoed the Security Council resolution condemning its conduct. Id.
Nicaragua then filed suit in the International Court of Justice. Id. The
Reagan
Administration denied that the court had jurisdiction and ignored the
proceedings despite "harsh criticism" by allies, enemies, and even
Congress.
PAGE 32
78 Geo. L.J. 415, *446
Id. Such flouting of the rule of law did little to persuade Americans that
the
President's actions were consistent with what the constitutional war powers
should mean. See U.S. World Court Move Deplored, N.Y. Times, Apr. 14,
1984, at
A12, col. 3 (former Department of State lawyer criticizes Reagan
Administration
for "turn[ing] the rule of law into a one-way street"); Lewis, Against the
Law,
N.Y. Times, Apr. 12, 1984, at A27, col. 1 (criticizing the United States
for
flouting the rule of law); Illegal Deceptive and Dumb, N.Y. Times, Apr. 11,
1984, at A26, col. 1 (same); Ullman, World Court Evasion, N.Y. Times, Apr.
11,
1984, at A27, col. 1 (same); Captain Disaster, N.Y. Times, Apr. 9, 1984,
at A19,
col. 5 (criticizing Reagan's policy in Nicaragua as a violation of
international
law and "illegitimate" foreign policy).
n137 Another way in which international law influences constitutional
law is
by supplying legal principles that help define certain concepts, such as
self
defense. See E. FIRMAGE & F. WORMUTH, supra note 63, at 48-50
(international
law affected Daniel Webster's interpretation of the self-defense power).
n138 The War Powers After 200 Years: Congress and the President at
Constitutional Impasse: Hearings Before the Special Subcomm. on War Powers
of
the Senate Comm. on Foreign Relations, 100th Cong., 2d Sess. 56 (1988)
(testimony of Dr. McDonald, Professor of History, University of Alabama).
n139 See E. FIRMAGE & F. WORMUTH, supra note 63, at 273 (President must
consult if time permits); Ratner, supra note 1, at 469-70 (same).
n140 President's Letter on Grenada, supra note 101, at 1512-13; Letter
from
Davis R. Robinson, Legal Adviser, U.S. Dep't of State, to Prof. Edward
Gordon,
Chairman, ABA Comm. on Grenada, Section on Int'l Law and Practice (Feb. 10,
1984), reprinted in 18 INT'L L. 381, 381 (1984), cited in Quigley, supra
note
30, at 273-74. Professor Quigley criticizes this justification by arguing
that
most United States citizens in Grenada did not believe that they were in
danger
and that the State Department's rationale was post hoc. Quigley, supra
note 30,
at 287-93.
n141 See supra note 30.
n142 6 THE WORKS OF DANIEL WEBSTER 261 (1851), quoted in E. FIRMAGE & F.
WORMUTH, supra note 63, at 49.
n143 See supra text accompanying notes 22-29.
n144 Although production of chemical weapons does not violate
international
law, use of chemical weapons does. See Geneva Convention on Chemical
Weapons,
June 17, 1925, 26 U.S.T. 571, 575 T.I.A.S. No. 8061, 67, 94 L.N.T.S. 65, 69
(entered into force in the United States, with reservation, Apr. 10, 1975).
Five nations in the Middle East currently produce nerve gas: Egypt,
Israel,
Syria, Iraq, and Iran. C. Centner, The Arab Viewpoint on Chemical Weapons
and
its Effect Upon a Proposed International Ban 4-6 (May 1989) (unpublished
manuscript) (copy on file at The Georgetown Law Journal). Libya, without
admitting that it built the Rabta plant to produce chemical weapons, has
claimed
that it has the right to do what other nations can do under international
law
make, but not use, chemical weapons. Gordon, supra note 23, at A12, col.
3.
n145 Cf. Greenwood, supra note 21, at 945 (it is not sufficient that the
,
PAGE 33
78 Geo. L.J. 415, *446
United States anticipates a Libyan attack on some unspecified future date;
to
remain within the limits of the self-defense power, the threat must be
reasonably imminent as of the date of the bombing); Tucker, Using Force
Against
Libya?, N.Y. Times, Jan. 11, 1989, at A23, col. 2 (concluding that "there
is no
apparent justification in the law of the [United Nations] Charter for
bombing
the Libya plant").
Some commentators, focusing on the earlier United States strike against
Libya, have disagreed with this analysis. See Intoccia, supra note 21, at
210-12 (justifying United States action against Libya in April 1986 because
preemptive action against ongoing terrorism deters future aggression);
Torricelli, The War Powers Resolution of the Libyan Crisis, 7 PACE L. REV.
661,
668-69 (1987) (United States raid on Libya in 1986 was justifiably
undertaken to
"deter and pre-empt" future attacks on United States citizens).
n146 M. CELMER, TERRORISM, U.S. STRATEGY, AND REAGAN POLICIES 88 (1987).
Terrorist groups are usually "small and homogeneous and are comprised of
individuals that are closely related by family or friendship." Id. Because
of
this, they are seldom vulnerable to techniques such as electronic
surveillance.
Id.
n147 Id. at 88-89 (reduced intelligence funding has hindered United
States
intelligence capabilities); Abrams, supra note 4, at B1, col. 4
(congressional
oversight has had a deleterious impact on intelligence collection and other
covert activities).
n148 Cf. The Prize Cases, 67 U.S. (2 Black) 635, 670 (1863) (only the
President, acting pursuant to the commander in chief power, can decide
upon the
degree of force necessary to suppress armed hostile resistance); Martin V.
Mott,
25 U.S. (12 Wheat) 19, 32-33 (1827) (President must decide the proper
military
response to a threat.)
n149 Letter from Abraham Lincoln to William H. Herndon (Feb. 15, 1848),
reprinted in 1 THE COLLECTED WORKS OF ABRAHAM LINCOLN 451 (R. P. Basler ed.
1953), quoted in Biden & Ritch, supra note 7, at 377 (emphasis in
original).
Abraham Lincoln was a legislator at the time he wrote this letter.
n150 See 6 THE WORKS OF DANIEL WEBSTER 261 (1851), quoted in E. FIRMAGE
& F.
WORMUTH, supra note 63, at 49.
n151 See supra text accompanying notes 22-28.
n152 See Note, Power to Commit Forces, supra note 39, at 1779.
n153 Wallace, supra note 2, at 738.
n154 H. PARMET, JFK: THE PRESIDENCY OF JOHN F. KENNEDY 278 (1983); cf.
G.
ALLISON, supra note 134, at 40 (quoting Soviet statement that Cuban missile
sites were unnecessary to the Soviet Union because "powerful rockets" could
strike a devastating blow from the Soviet Union).
155 See Wright, supra note 8, at 48 (arguing that reasonable persons
"may
disagree as to which foreign security interests are worth protecting").
nl 56 One commentator has suggested that a "harm" analysis might be the
proper
PAGE 34
78 Geo. L.J. 415, *446
test for when the President may order military action without congressional
consultation. Id. at 48-49.
n157 See E. FIRMAGE & F. WORMUTH, supra note 63, at 17-31 (discussing
the
constitutional text and principles underlying the allocation of war
powers); W.
REVELEY, WAR POWERS, supra note 3, at 29-31 (scope and precision of the
textual
grant indicates that the Framers intended to confer broad war powers
authority
on Congress).
n158 Compare U.S. CONST. art. I, @ 8, (Congress may "provide for common
Defence
declare war, grant Letters of Marque and Reprisal
raise and
support Armies
provide and maintain a Navy
provide for calling
forth
the Militia to execute the Laws of the Union, suppress Insurrections repel
Invasions
provide for organizing, arming and disciplining the Militia
[and] make all Laws necessary and proper") with id. art. II, @ 1, cl. I
(executive power clause) and id. @ 2, cl. 1 (commander in chief clause).
Commentators have drawn similar conclusions. See W. REVELEY, WAR POWERS,
supra
note 3, at 31-38 (comparing the textual grants and concluding that despite
gaps,
the Framers intended Congress to be involved in policy decisions involving
the
military); Rogers, supra note 4, at 1195-98 (same).
n159 THE FEDERALIST NO. 69, at 418 (A. Hamilton) (C. Rossiter ed. 1961)
(
President's power as the Commander in Chief is limited to tactical
control).
n160 W. REVELEY, WAR POWERS, supra note 3, at 64-65.
n161 See id. at 175-79 (requirement of congressional consultation on
warmaking decisions provides a majoritarian check on presidential power);
Henkin, Foreign Affairs and the Constitution, FOREIGN AFF., Fall 1986, at
284,
302 (absent exigent circumstances and when the opportunity exists, the
President
must consult with Congress); Ratner, supra note 1, at 470 (same).
n162 Hearings, War Powers, Libya and State-Sponsored Terrorism, supra
note
19, at 125 (testimony of Prof. W. Taylor Reveley) ("deeply rooted in the
language of the Constitution
is the necessity that Congress
participate in
American decisions regarding the use of force against other states,
irrespective
of whether the use of force requires secrecy, speed or only modest
coercion").
n163 See Hearings, War Powers: Origins, Purposes and Application, supra
note
9, at 203-04 (testimony of Elliot Richardson) (arguing that consultation
should,
at a minimum, include the leadership of both houses and the chairpersons
of key
committees); see also Biden & Ritch, supra note 7, at 396-412 (proposing
legislation that would require consultation for war powers decisions).
Not all commentators agree that consultation is constitutionally
compelled,
or even that it is a good idea. Representative Hyde has argued that the
President should not be required to consult with Congress because "[w]e
can't
keep a secret." Hearings, War Powers, Libya and State-Sponsored Terrorism,
supra
note 19, at 136-37. He has quoted an unidentified member of Congress who
reportedly said that he "could condone
a leak if it was the only way
to
block an ill-conceived operation." Id.
n164 Blakesley, An Essay on Executive Branch Attempts to Eviscerate the
Separation of Powers (Book Review), 1987 UTAH L. REV. 451, 455 (reviewing
E.
FIRMAGE & F. WORMUTH, TO CHAIN THE DOG OF WAR (1986)) (Constitution
provides for
PAGE 35
78 Geo. L.J. 415, *446
Congress to play a greater role in foreign affairs than "mere ratification
of
presidential action").
n165 But cf. INS V. Chadha, 462 U.S. 919, 959 (1983) ("exercise of
legislative power" is constitutional only if Congress respects the
bicameralism
and presentment clauses). The principles underlying Chadha pose no
barrier to
the policy dialogue between Congress and the President that this note
envisions.
Chadha requires Congress to conform with specific procedural requirements
when
exercising legislative power. Id. at 952. If congressional action,
regardless
of what that action is called, alters "legal rights and duties,"
presentment and
bicameralism apply. Id. But consultation merely provides the President
with
advice and dialogue. The leadership cannot alter any of the President's
"legal
rights or duties." Chadha invalidated the one-house veto -- it does not
apply to
the consultation mechanism.
n166 Congress has considered similar proposals in the past. See S.J.
Res.
340, 99th Cong., 2d Sess. (1986) (amendment to the War Powers Resolution
that
would have established a permanent consulting body), reprinted in
Hearings, War
Powers, Libya and State-Sponsored Terrorism, supra note 19, at 216-17;
H.R. Res.
8735, 93rd Cong., 1st Sess. (1973) (bill that would have created a Joint
Committee on National Security to "provide a manageable forum for regular
consultation between the President and congressional leaders"), cited in M.
SMYRL, supra note 12, at 148. For another proposal facilitating joint war
powers decisions, see Biden & Ritch, supra note 7, at 396-410.
n167 But cf. Hearings, War Powers, Libya and State-Sponsored Terrorism,
supra
note 19, at 128 (testimony of Prof. W. Taylor Reveley) (arguing that it
would be
difficult to create a small congressional consultation committee because
many
members of Congress would want to participate).
n168 P. Buchen, The American President's Discretion in Foreign Affairs:
Rules
of the Decision Process 9 (Feb. 15, 1989) (unpublished manuscript) (copy
on file
at The Georgetown Law Journal). Mr. Phil Buchen was counsel to President
Ford.
n169 Id.
n170 See United States V. Nixon, 418 U.S. 683, 712-13 (1973)
(recognizing
executive privilege doctrine but not permitting President to invoke it in
the
face of criminal investigation and in the absence of national security
concerns); see generally L. TRIBE, supra note 3, @ 4-14, at 202-15
(discussing
executive privilege doctrine).
n171 See 5 U.S.C. @ 552(b) (1982) (listing Freedom of Information Act
exemptions); Classified Information Procedures Act, Pub. L. No. 96-456, 94
Stat.
2025 (1980) (codified at 18 U.S.C.A. Appendix (1982)) (establishing
procedures
to exempt government information from disclosure that is sensitive to
national
security).
n172 See U.S. CONST. art. II, @ 4 ("The President
shall be
removed from
Office on Impeachment for
Treason, Bribery, or other High Crimes and
Misdemeanors."); see generally L. TRIBE, supra note 3, @ 4-16, at 215-33
(discussing the impeachment provision).
n173 Only two Presidents have been seriously threatened with
impeachment. In
1867, Andrew Johnson was impeached by the House and came within one vote of
PAGE 36
78 Geo. L.J. 415, *446
conviction in the Senate. See L. TRIBE, supra note 3, @ 4-16, at 217.
Richard
Nixon probably would have been impeached if he had not resigned in 1974.
Id. at
218. Thus, it is highly unlikely that impeachment would be a serious
threat to
the President.
100297
Print Completed
Time of Request: October 11, 2000 11:13 am EST
Print Number:
40:0:15024850Number of Lines: 1673
Number of Pages: 36
RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR: Mary U. Binns ( CN=Mary U. Binns/OU=WHO/O=EOP [ WHO 1)
CREATION DATE/TIME:12-OCT-2000 05:22:02.00
SUBJECT: President: have killed the bill clinton that signed the China legislation and ordered
TO: Stephen K. Horn ( CN=Stephen K. Horn/OU=WHO/O=EOP@EOP [ WHO 1)
READ:UNKNOWN
TO: Charles C. Easley ( CN=Charles C. Easley/OU=OA/O=EOP@EOP [OA])
READ:UNKNOWN
TO: Mary U. Binns (CN=Mary U. Binns/OU=WHO/O=EOP@EOP [ WHO ])
READ:UNKNOWN
TO: [email protected] ( [email protected] [ UNKNOWN ])
READ:UNKNOWN
TEXT:
Categories=
DeliveredDate= 10/11/2000 4:02:15 PM
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Subject= President: have killed the bill clinton that signed the China
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id 1.24.b98d93c (6622); Wed, 11 Oct 2000 15:58:39 -0400 (EDT)
Date: Wed, 11 Oct 2000 15:58:39 -0400 (EDT)
From: [email protected]
Subject: Change of Will
To: [email protected]
Cc: [email protected]
Message-id: <[email protected]>
MIME-version: 1.0
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Dear President William J. Clinton:
I think the signing of the trade legislation is an attempt too change
the American Will.
Had you acted properly in all check systems. The President would
have killed the bill clinton that signed the China legislation and ordered
a war powers summery too access the harm and effects on national security.
since I am the NSA director now. It is so ordered.
I would also like a joint US/China bombing operation over Gary Locke's
native
cities eradicating any threat of his re-election.
Wilbert A. Konz
[email protected]
RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR: Sherman A. Williams ( CN=Sherman A. Williams/OU=WHO/O=EOP [WHO])
CREATION DATE/TIME:14-OCT-2000 13:46:30.00
SUBJECT: War Powers Release
TO: Megan C. Moloney ( CN=Megan C. Moloney/OU=WHO/O=EOP@EOP [ WHO ])
READ:UNKNOWN
TEXT:
ATTACHMENT 1
ATT CREATION TIME/DATE: 0 00:00:00.00
TEXT:
Unable to convert ARMS_EXT:[ATTACH.D23]ARMS220007EZB.001 to ASCII,
The following is a HEX DUMP:
END ATTACHMENT 1
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
October 14, 2000
TEXT OF A LETTER FROM THE PRESIDENT
TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
AND THE PRESIDENT PRO TEMPORE OF THE SENATE
October 14, 2000
Dear Mr. Speaker: (Dear Mr. President:)
At approximately 5:15 a.m. eastern daylight time, October 12, 2000,
a small boat exploded alongside the USS COLE (DDG 67) while the
USS COLE was mooring to a harbor fueling island during a refueling
stop in the port of Aden, Yemen. A number of American sailors were
killed or wounded, and the USS COLE suffered extensive damage.
Department of Defense assets were immediately identified to provide
medical, security, and disaster responses.
Later in the day on October 12, 2000, approximately 45 military
personnel from U.S. Naval Forces Central Command deployed to Aden to
provide medical, security, and disaster response assistance. In
addition, a team of approximately 50 U.S. military security personnel
arrived in Aden in the early morning hours of October 13, 2000.
It is also anticipated that additional similar security elements
may be deployed to the area. The security personnel will enhance
the ability of the United States to ensure the security of the
USS COLE and the personnel responding to the incident. Although
the security personnel are equipped for combat, their presence is
solely for the purpose of assisting in on-site security. Finally,
two U.S. Navy surface combatant vessels are operating in or
near Yemeni territorial waters to provide communications and other
support, as required. United States forces will redeploy as soon
as the additional security support is determined to be unnecessary.
I have taken this action pursuant to my constitutional authority
to conduct U.S. foreign relations and as Commander in Chief and Chief
Executive. I am providing this report as part of my efforts to keep
the Congress fully informed, consistent with the War Powers
Resolution.
I appreciate the support of the Congress in this action to assist
in ensuring security of U.S. military forces and other personnel
overseas.
Sincerely,
WILLIAM J. CLINTON
# # #
Automated Records Management System
Hex-Dump Conversion
RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR: Alexander N. Gertsen ( CN=Alexander N. Gertsen/OU=WHO/O=EOP [ WHO
)
CREATION DATE/TIME:14-OCT-2000 12:43:34.00
SUBJECT: Re: The final release of the day
TO: Megan C. Moloney ( CN=Megan C. Moloney/OU=WHO/O=EOP@EOP. [ WHO 1)
READ:UNKNOWN
CC: Nanda Chitre ( CN=Nanda Chitre/OU=WHO/O=EOP@EOP [ WHO ])
READ:UNKNOWN
CC: Oliver D. Pangborn ( CN=Oliver D. Pangborn/OU=WHO/O=EOP@EOP [ WHO ])
READ:UNKNOWN
TEXT:
Thank you for keeping us in the loop
Megan C. Moloney
10/14/2000 12:38:35 PM
Record Type: Record
To: Nanda Chitre/WHO/EOP@EOP, Alexander N. Gertsen/WHO/EOP@EOP
cc:
Subject: The final release of the day
FYI -- This is heading our way in a little bit
Forwarded by Megan C. Moloney/WHO/EOP on 10/14/2000
12:38 PM
Sherman A. Williams
10/14/2000 12:18 PM
Record Type: Record
To: Megan C. Moloney/WHO/EOP@EOP
cc:
Subject: The final release of the day
Megan,
We just got back the War Powers letters regarding deployment of troops in
Yemen, which needs to be release today. I need to deliver the letters
first to Sen. Thurmond & Speaker Hastert. I should have the release for
you around 1:00pm. Thanks again!
RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR: Jill S. Ganek (CN=Jill S. Ganek/OU=WHO/O=EOP [ WHO] )
CREATION DATE/TIME:27-OCT-2000 18:06:41.00
SUBJECT: u.s. V. woodley and tax court letter
TO: Eric S. Angel ( CN=Eric S. Angel/OU=WHO/O=EOP@EOP [ WHO ])
READ:UNKNOWN
TEXT:
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\par \pard \qc\widct|par\adjustright {4 of 13 DOCUMENTS
\par
\par } \pard \qc\li1200\ri1200\widctlpar\adjustright {UNITED STATES OF AMERICA,
Plaintiff-Appellee, V. JANET WOODLEY, Defendant-Appellant
\par
\par No. 82-1028
\par
\par UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
\par
\par \pard \qc\fi360\li1200\ri1200\widctlpar\adjustright {751 F.2d 1008; 1985
U.S. App. LEXIS 27756
\par
\par \pard \qc\li1200\ri1200\widctlpar\adjustright {August 16, 1984, Argued an
d Submitted En Banc
\par
\par January 14, 1985, Decided
\par
\par \pard \qj\widctlpar\adjustright {PRIOR HISTORY:
\par [**1]
\par
\par Appeal from the United States District Court for the District of Hawaii.
\par
\par COUNSEL:
\par } \pard \qj\fi360\widctlpar\adjustright {Pamela Berman, Honolulu, Hawaii, f
or Appellee.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright { [Robert Ericson, Dept. of Jus
tice, Washington, District of Columbia, for Appellant.
\par
\par \pard \qj\widctlpar\adjustright {JUDGES:
\par } \pard \qj\fi360\widctlpar\adjustright {Browning, Chief Judge, Sneed, Skop
il, Fletcher, Farris, Alarcon, Poole, Ferguson, Norris, Reinhardt, and Beezer,
Circuit Judges. Norris, Circuit Judge, with whom
Fletcher, Ferguson and Reinhardt, Circuit Judges, join in the dissent.
\par
\par }\pard \qj\widctlpar\adjustright {OPINIONBY:
\par }\pard \qj\fi360\widctlpar\adjustright {BEEZER
\par
\par }\pard \qj\widctlpar\adjustright {OPINION:
\par
\par } \pard \qj\fi360\widctlpar\adjustright { [*1009] BEEZER, Circuit Judge:
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {We take this case en banc to
address the constitutionality of a practice followed by the Executive for near
ly 200 yea
rs. The question before us is whether the President of the United States may c
onstitutionally confer temporary federal judicial commissions during a recess o
f the Senate pursuant to article 11, section 2 of the Constitution.
\par I
\par On February 28, 1980, Walt
er Heen was nominated to fill a judicial vacancy in the United States District
Court for Hawaii. The Senate Judiciary Committee began confirmation hearings o
n his nomination on September 25, 1980. When the Senate recessed on December 1
6, 1980, testimony
and hearings on the nomination were complete, but the nomination [**2] did not
come before the full Senate for its advice and consent. During the Senate's r
ecess, on December 31, 1980, President Carter conferred a commission on Judge H
een pursuant to th
e recess appointment clause of article II
of the United States Constitution. Heen then took his oath and assumed his dut
ies as district court judge. On January 21, 1981, Heen's nomination was withdr
awn by President Reagan. Heen continued sitting as a dis
trict judge pursuant to his recess commission until December 16, 1981, when the
97th Congress ended its First Session. nl
\par
\par \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {nl Withdrawal of Judge Heen'
S nomination, standing alone, did not impair his authority to sit as a district
court judge. } {\i See} { U.S. Const. art. II, \'a7 2, cl. 3; } {\i
see also In re Marshalship for the Southern and Middle Districts of Alabama} {,
20 F. 379, 382 (N.D. Ala. 1884) (recess commission continues until the end of n
ext session of Congress).
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {On September 18, 1981, while
Heen was sitting out his commission, appellant Janet Woodley was indicted on t
hree [**3] counts of narcotics V
iolations. Woodley filed a motion to suppress evidence, which was denied by He
en. Judge Heen then presided over a bench trial on stipulated facts and found
Woodley guilty as charged in the indictment.
\par Woodley appealed the denial of her motion to suppress. A panel of this co
urt raised the issue } {\i sua sponte} {
whether Judge Heen could constitutionally preside over Woodley's trial. n2 The
panel held that he could not and it vacated Woodley's conviction. } {\i United
States V. Woodley {, 726 F.2d 1328, 1339 (9th Cir. 1983). The court having con
vened en banc, }{
\i United States V. Woodley} {, 732 F.2d 111 (9th Cir. 1984) (order granting reh
earing en banc), we hold that the recess appointment
clause extends to judicial officers and that a recess appointee to the federal
bench can exercise the judicial power of the United States.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n2 Although the recess appoi
ntment issue was not raised by the parties, this court must examine jurisdictio
nal problems } {\i sua sponte. Miller V. Transamerican Press, Inc.} {
, 709 F.2d 524, 527 n.2 (9th Cir. 1983). The case at bar presents such a jurisd
ictional issue and is subject to our review. } {\i See, e.g., Glidden Co. V. Zd
anok} {, 370 U.S. 530, 536, 8 L. Ed. 2d 671, 82 S. Ct. 1459 (1962).
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**4]
\par } \pard qj\fi360\sb120\widctlpar\adjustright {II
\par The recess appointment clause provides that: "The President shall have Pow
er to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next Session." U.S
Const. art. II, \'a7
2, cl. 3. Article III, in turn, provides in relevant part that: "The
Judges, both of the supreme and inferior Courts, shall hold their Offices durin
g good Behaviour, and shall, at stated Times, receive for their Services a Comp
ensation, which shall not be diminished during their Continuance in Office." U.
S. Const. art. III
, \'a7 1.
\par Woodley contends that under generally accepted principles of statutory con
struction, the more specific language of article III governs over the general 1
anguage of the recess appointment clause. She concludes therefore that article
III forbids int
erim judicial recess appointments. We reject this argument.
\par The United States Supreme Court has unequivocally stated that "the Constit
ution
[*1010] must be regarded as one instrument, all of whose provisio
ns are to be deemed of equal validity." } {\i Prout V. Starr} {
188 U.S. 537, 543, 47 L. Ed. 584, 23 S. Ct. 398 (1903). Moreover, while artic
,
le [**5] III speaks specifically about the tenure of federal judges, article I
I is equally specific in addressing the manner of their appointment. There is t
herefor
e no reason to favor one Article over the other.
\par The language of the recess appointment clause explicitly provides that the
President has the power to fill } {\i all} { vacancies during the recess of the
Senate. The } {\i Federalist} { papers clarify the meaning of the re
cess clause, stating that it "is to be considered as supplementary to the [clau
se] which precedes" and that the vacancies referred to "must be construed to re
late to the "officers' described in the preceding [clause]." } {\i The Federalis
t No. 67} {
, at 455 (A. Hamilton) (J. Cooke ed. 1961). The preceding clause in question p
rovides in relevant part that the President "shall nominate, and by and with th
e Advice and Consent of the Senate shall appoint
} {\i
Judges of the supreme Court, and all other Officers of the United States} {
" U.S. Const. art. II, \'a7
2, cl. 2 (emphasis added). Th language further underscores that there is no b
asis upon which to carve out an exception from the recess power for federal jud
ges. Particularly relevant in this context is Alexan
der [**6] Hamilton's statement that "as to the mode of appointing the judges:
This is the same with that of appointing the officers of the union in general
} {\i The Federalist No. 78, supra} {, at 522. n3
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n3 The United States Supreme
Court has noted that "the opinion of [} {\i The Federalist} {
] has always being considered as of great authority
and the part two of i
ts authors performed in framing the constitution, put it very much in their pow
er to explain the views with which it was framed." } {\i Cohens V. Virginia} {
, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257 (1981).
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {III
\par Woodley also argues that there is no historical evidence that the Framers
intended the recess provision to apply to the judiciary. This argument is not
only refuted by the express language of the recess clause, which, as previously
noted, refers to } {\i
all} { vacancies, but it is also refuted by legislative history, as well as hist
orical practice, consensus, and acquiescence.
\par Although the recess appointment clause was adopted without debate, 2 Farra
nd, [**7] } {\i Records of the Federal Convention} { 533, 540 (1911), there is
evidence that it was not enti
rely uncontroversial. Edmund Randolph, the governor of Virginia, initially dec
lined to sign the Constitution, in part because the recess provision gave the E
xecutive the power to confer judicial commissions during the recess of the Sena
te. 3 Farrand, } {
\i supra} {, at 123, 127.
\par In 1789, shortly after ratification of the Constitution, George Washington
, who had served as President of the Constitutional Convention, exercised his p
ower under the recess provision. During the recess between the sessions of the
First
Congress, he conferred three recess district judge commissions. 30 } {\i The Wri
tings of George Washington} {, 457-58, 473, 485 n.75 (J. Fitzpatrick ed. 1939).
At the time of these appointments, Edmund Randolph and two contributors to } {\
i The Federalist} {
, Alexander Hamilton and John Jay, served as members of President Washington's
Cabinet. There is no evidence that they doubted the constitutionality of the re
cess appointments.
n4 Moreover, the district court judges were confirmed upon the return of the S
enate without objection to their recess appointments. 1 } {\i Executive Journal
of the Senate} { [**8] 38, 40 (1790). It is further noteworthy that President
Washington's
recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in
1795 went unchallenged. n5 One commentator has aptly [*1011] noted that "the
most significant historical fact is that by the end of 1823, there had been fi
ve
recess appointments to the Supreme Court. During this period, when those who W
rote the Constitution were alive and active, not one dissenting voice was raise
d against the practice." Note, } {\i Recess Appointments
to the Supreme Court Constitutional But Unwise} {?, 10 Stan. L. Rev. 124, 13
2 (1957).
\par
\par \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj)fi360\sb120\widctlpar\adjustright {n4 Randolph, who was Attorne
y General, was advised by President Washington of Judge Griffin's recess appoin
tment. } {\i See} { 30} {\i Writings of George Washington, supra} {
, at 472-73. Secretary of State Jay, in turn, had the duty to seal all civil c
ommissions. } {\i See Marbury V. Madison} {, 5 U.S. (1 Cranch.) 137, 2 L. Ed. 60
(1803).
\par n5 Although Rutledge was not ultimately confirmed, it was not because he W
as a recess appointee, but because of his opposition to the Jay Treaty. } {\i S
ee Ex parte Ward} {, 173 U.S. 452, 454 n.1, 43 L. Ed. 765, 19 S. Ct. 459 (1899).
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
[**9]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {The actions of the three bra
nches of our government have consistently confirmed the President's power to ma
ke recess appointments. The Exe
cutive Branch has made extensive use of the recess power. Approximately 300 ju
dicial recess appointments have been made in our nation's history. n6 President
S Eisenhower and Kennedy alone made fifty-three such appointments during their
Administrations.
} {\i See} { H. Chase, } {\i Federal Judges The Appointing Process} { 86-88, 114-15
(1972).
\par
\par }\pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n6 These statistics were com
piled from the files of the Office of the Deputy Attorney General at our reques
t.
\par
\par \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
\par } \pard qj\fi360\sb120\widctlpar\adjustright {The Legislative Branch has c
onsistently confirmed judicial recess appointees withou
t dissent. Moreover, Congress has passed legislation providing for the salarie
S of recess appointees, without excluding judges. 5 U.S.C. \'a7 5503; } {\i se
e also} {
S. Res. 334, 86th Cong., 2d Sess., 106 Cong. Rec. 18,130-45 (1960) (statement
of Senator Hart) (confirming President's power to make judicial recess appointm
ents).
\par Finally, we turn to the Judicial [**10] Branch. The only direct challeng
e, prior to the present action, to the President's power to make judicial reces
S appointments was rejected by the Second Circuit in } {\i United States V. Allo
cco} {
, 305 F.2d 704 (2d Cir. 1962), } {\i cert. denied} {, 371 U.S. 964, 9 L. Ed. 2d 5
11, 83 S. Ct. 545 (1963). Although the United States Supreme Court has never pa
ssed on the issue, numerous Justices have been recess appointees.
Chief Justice Rutledge sat as a recess appointee for six months and participat
ed in two decisions. He delivered the opinion of the Court in } {\i United State
S V. Peters} {, 3 U.S. (3 Dall.) 121, 1 L. Ed. 535 (1795) and wrote with the maj
ority in } {\i
Talbot V. Janson} {, 3 U.S. (3 Dall.) 133, 1 L. Ed. 540 (1795). Justice Curtis,
who received a recess appointment
in 1851, sat as a judge of the Circuit Court of the United States for the Firs
t Circuit and the Rhode Island District Court, while he was a recess appointee.
} {\i See} { Note, } {\i supra} {, at 131 n.24. Altogether, fifteen recess appoin
tments
have been made to the Supreme Court. Staff of House Comm. on the Judiciary, 8
6th Cong., 1st Sess., } {\i Recess Appointments of Federal Judges} { 40 (Comm. Pr
int 1959). Of these, at least four [*
*11] appointees sat on the Court prior to their confirmation. Note, } {\i supra
} {, at 125. There is no evidence that any member of the Supreme Court ever obj
ected to this practice on constitutional grounds.
\par IV
\par Our historical review demonstrates that there is an unbroken acceptance of
the President's use of the recess power to appoint federal judges by the three
branches of government. Woodley argues, however, that the Supreme Court's rece
nt decision in } {\i
INS V. Chadha} {, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), teache
S that historical patterns cannot save an unconstitutional practice.
\par We agree that historical acceptance alone cannot conclusively establish a
practice's constitutionality. Yet while we rely only in part on historical cons
ensus in upholding the President's authority to make judicial recess appointmen
ts,
we cannot ignore historical observance. The teachings of } {\i Chadha} { are no
t to the contrary. That case held that historical acceptance of the legislativ
e veto could not prevent it from runni
ng afoul of the Constitution. 103 S. Ct. at 2279 n. 13. The legislative veto is,
however, a recent practice, barely 50 years old. Its use does not reach back
to the [**12] days of the Framers, such as the practice at issue. Moreover, it
is an impermissib
1
e statutory [*1012] methodology, unsupported by an express constitutional gra
nt of authority. While the use of the recess clause to make temporary judicial
appointments has been accepted by all three branches of government for nearly
200 years, the rel
atively young legislative veto has been referred to by the United States Suprem
e Court as "the most recent episode in a long tug of war between the Executive
and Legislative Branches
} {\i Buckley V. Valeo}{
, 424 U.S. 1, 140 n. 176, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam). n
7
\par
\par }\pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n7 The first legislative vet
o provision was challenged shortly after its passage. } {\i See} { 37 Op. Att'y
Gen. 56, 63-64 (1933). Eleven Presidents h
ave gone on record challenging the Congressional veto power as unconstitutional
} {\i Chadha} {, 103 S. Ct. at 2779 n.13.
\par
\par \pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj)fi360\sb120\widctlpar\adjustright {The United States Supreme Co
urt has made clear that conside
rable weight is to be given to an unbroken practice, which has prevailed [**13]
since the inception of our nation and was acquiesced in by the Framers of the
Constitution when they were participating in public affairs. } {\i
See, e.g., United States V. Curtiss-Wright Export Corp.} {, 299 U.S. 304, 322, 8
1 L. Ed. 255, 57 S. Ct. 216 (1936); } {\i J.W. Hampton, Jr. & Co. V. United Stat
es} {, 276 U.S. 394, 412, 48 S. Ct. 348, 72 L. Ed. 624 (1928); } {\i Stuart v. La
ird} {
5 U.S. (1 Cranch) 299, 2 L. Ed. 115 (1803). This principle was reaffirmed by
the Court less than a month after } {\i Chadha} {. In } {\i Marsh V. Chambers} {, 4
63 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), Chief Justice Burger, W
ho also authored }
{\i Chadha} {, noted that "in light of the unambiguous and unbroken history of m
ore than 200 years, there can be no doubt that the practice of opening legislat
ive sessions with prayer has become part of the fabric of our society." } {\i Ma
rsh} {
, 103 S. Ct. at 3336. Much in the same way, the use of the recess provision to
appoint federal judges has been inextricably woven into the fabric of our natio
n.
\par V
\par Woodley says that a technical argument could be made that the language of
the recess clause giving the President the power to fill all vacancies that "ma
y happen during the [**14] Recess of the Senat
e," means that only those vacancies that occur during the recess itself can be
filled by Presidential appointment. She reasons therefore that Judge Heen's app
ointment is invalid, because the vacancy which he filled did not occur during a
recess of the Sen
ate. Woodley's interpretation conflicts with a common sense reading of the wor
d} {\i happen} {, as well as the construction given to this word by the three br
anches of our government.
\par In a vacuum, the use of the word } {\i happen} { could be interpreted to ref
er to vacanc
ies that either "happen to occur" or "happen to exist" during a recess of the S
enate. n8 Yet the former interpretation would lead to the absurd result that al
1 offices vacant on the day the Senate recesses would have to remain vacant at
least until the Se
nate reconvenes. Not only judicial positions, but all offices within the purvi
ew of article II,
clause 2 would have to remain vacant. The positions of cabinet members and oth
er high government officials would have to remain unfilled until the return of
th
e Senate. If a vacancy occurred on the last day before the Senate's recess, th
e President would be without power to fill that vacancy in the ensuing [**15]
recess. Even assuming that the Senate was informed of the vacancy prior to its
recess and the [*
1
013] President submitted a timely nomination, the Senate would still be faced
with the dilemma of either confirming a candidate of whose qualifications littl
e is known or leaving that office vacant until the Senate reconvenes. We agree
with the Second C
ircuit that this interpretation "would create Executive paralysis and do violen
ce to the orderly functioning of our complex government."} {\i Allocco} {, 305 F
.2d at 712; } {\i see also} { Note, } {\i supra} {
, at 126 (apparent purpose of recess clause "was to assure the President t
he capacity for filling vacancies at any time to keep the Government running sm
oothly"). We cannot attribute to the Framers an intent to create such a potent
ially dangerous situation. } {\i See South Carolina V. United States} {
, 199 U.S. 437, 449, 50 L. Ed. 261, 26 S. Ct. 110 (1905).
\par
\par \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n8 English language dictiona
ries of the Seventeenth, Eighteenth and Nineteenth centuries shed little light
on this issue. } {\i See, e.g., Cole's Dictionary} { (1692) (defining "hap" as
to catch or snatch"); }
{\i Blount's Dictionary} { (2d ed. 1719) (defining "happe" as to "match or catch
"); } {\i Bailey's Dictionary} { (1737) ("to fall out"); } {\i Sheridan's English
Dictionary} { (2d ed. 1789) ("To fall out by chance, to come to pass;
to light on by accident"); 1} {\i Webster's Dictionary} { (1828) ("To come by c
hance," "to come, to befall," "to light"); } {\i Richardson's English Dictionary
}{
(1839) ("Any thing, something, that comes or falls into our hold or possession
, any thing caught; chance accident, luck.") It is noteworthy, however, that it
is only in modern usage that } {\i happen} { has come to signify merely "to take
place or occur."
} {\i Webster's New International Dictionary} { (2d ed. 1934).
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**16]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {
We also emphasize that both the courts and the Executive Branch have consistent
ly construed the recess clause as giving the President the authority to fill al
I vacancies that exist while the Senate is in recess. } {\i See, e.g., Allocco} {
, 305 F.2d at 712-15 (President may make appointments to all vacancies that exi
st during a Senate recess); } {\i In re Farrow} {
, 4 Wood. 491, 3 F. 112, 116 (N.D. Ga. 1880) (President has power to make appoi
ntments "notwithstanding the fact that the vacancy filled
by his appointment first happened when the senate was in session."); 1 Op. Att'
y Gen. 631, 633 (1823) ("Whether [a vacancy] arose during the session of the Se
nate, or during their recess, it equally requires to be filled."); 2 Op. Att'y
Gen. 525, 528 (183
2) (President may make recess appointments "if there happen to be any vacancie
S during the recess. "); 19 Op. Att'y Gen. 261, 263 (1889) ("Wherever } {\i the
re is a vacancy there is a power to fill it} {.") (emphasis in original).
\par Both Houses of Congress have apparently recognized the soundness of this c
onstruction of the recess power. } {\i See} {
Nomination of Charles Beecher Warren to be Attorney General, 67 Cong. Rec. 263
-64 (1925) (recognizing [**17] President's power to fill vacancies regardless
of when they arose)
; 52 Cong. Rec. 1369-70 (1915) (statement of Congressman Borland) (recognizing
power of president to fill vacancies that occurred during a previous session of
the Senate). Moreover, Congress has provided for payment of recess appointees
, such as Heen, wh
ose nominations were pending at the time of the Senate's recess. 5 U.S.C. \'a7
5503(a)(2). We therefore decline to adopt Woodley's "happen to occur" argume
nt and recognize the President's power to fill all vacancies that exist during
a recess of the Senate.
\par VI
\par Finally, we address Woodley's related arguments that the recess appointmen
t clause is merely a "housekeeping measure" and that Judge Heen lacks the attri
butes of an article III judge contrary to the teachings of } {\i
Northern Pipeline Construction Co. V. Marathon Pipe Line Co.} {, 458 U.S. 50, 73
L. Ed. 2d 598, 102 S. Ct. 2858 (1982).
\par In } {\i Marathon} {, Justice Brennan's plurality opinion held that Congress
may not, through a statute, constitutionally vest the non-article III adjunct
bankruptcy judges with article III powers. } {\i Id.} {
at 87. n9 Yet the present case is not concerned with an attempt to circumvent
[**18] article III by statute, but with the scope of an express constitutional
provision. Moreover, the recess appointment
clause is not simply a statutory solution to a judicial problem or a mere hous
ekeeping measure. The clause prevents the Executive from being incapacitated d
uring the recess of the Senate. This in turn prevents extended judicial vacanc
ies, which can cau
se the denial of the important right of access to the courts. The Framers cons
idered the recess appointment
clause sufficiently important to include it in the Constitution. In the early
days of the Republic, travel time was measured in days, not hours, an
d extended congressional recesses were expected. The advent of modern jet trav
el, instant communication, and present day prolonged sessions of Congress do no
t justify characterizing [*1014] the recess appointment
clause merely as a housekeeping measure.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard qj\fi360\sb120\widctlpar\adjustright {n9 Justice Brennan was himse
If a recess appointee.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard qj)\fi360\sb120\widctlpar\adjustright {
A recess appointee lacks life tenure and is not protected from salary diminutio
n. As [**19] a result, such an appointee is in theory subject to greater poli
tical pressure than a judge whose nomination has been confirmed. Yet our Consti
tution has bestowe
d
upon the Executive the power to make interim judicial appointments. This power
is not unfettered, however, but is subject to its own limitations and safeguar
ds. It may only be invoked when the Senate is in recess, and recess commissions
expire at the end
of the next congressional session. U.S. Const. art. II, \'a7 2, cl. 3; } {\i S
ee Staebler V. Carter} {
, 464 F. Supp. 585, 597 (D.D.C. 1979). We must therefore view the recess appoin
tee not as a danger to the independence of the judiciary, but as the extraordin
ary exception to the prescriptions of article III. } {\i Cf. Marathon} {
, 458 U.S. at 70 (certain exceptional powers bestowed upon Congress by Constitu
tion not subject to prescriptions of article III). The judicial recess appoint
ee, who has sworn to uphold the Constitu
tion, fills a void left by those preceding in office, thereby permitting the un
broken orderly functioning of our judicial system.
\par It should also be noted that as a practical matter, a recess appointee cou
Id not be a "lion under the throne," subject to the whims [**20] of the Presid
ent. 28 U.S.C. \'a7
144 (bias or prejudice of a judge). "The evils of legislative and executive
coercion
have no support in our nation's history." } {\i Allocco} {, 305 F.
2d at 709.
\par VII
\par Even viewing the recess clause as an unwise
constitutional provision, it is not for this court to redraft the Constitution
Changes in that great document must come through constitutional amendment, n
ot through judicial reform based on policy arguments. Accordingly, we hold tha
t Judge Heen, as a
recess appointee to the federal bench, could exercise the judicial power of th
e United States.
\par The case is remanded to the panel for determination on the merits.
\par BROWNING, Chief Judge, SNEED, SKOPIL, FARRIS, ALARCON and POOLE, Circuit J
udges, concurring.
\par
\par } \pard \qj\widctlpar\adjustright {DISSENTBY:
\par \pard \qj\fi360\widctlpar\adjustright {NORRIS; FLETCHER; FERGUSON; REINHA
RDT
\par
\par \pard \qj\widctlpar\adjustright {DISSENT:
\par
\par \pard \qj\fi360\widctlpar\adjustright {NORRIS, Circuit Judge, with whom F
LETCHER, FERGUSON and REINHARDT, Circuit Judges, join in the dissent.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Article III of the Constitut
ion provides that "the judicial Power of the United States
" shall be exercised by judges whose independence from the political branches o
f government is assured by guarantees of life tenure and undiminished compensat
ion. Today, our Court carves out an [**21] exception to this explicit and unq
ualified constitut
i
onal command by holding that the judicial power of the United States may be exe
rcised by judges who serve at the pleasure of the President and the Senate. As
Professor Freund aptly commented, every recess appointee sits with "one eye OV
er his shoulder on
Congress." } {\i Harvard Law School Record} {, October 8, 1953, p.1, col.5. He
has no assured tenure beyond the next session of the Senate.
\par I agree with the majority that there is a direct conflict between the Rece
SS Appointments Clause of Article II and the tenure and salary provisions of Ar
ticle III
of the Constitution. I also agree with the majority that in deciding which cla
use should prevail, we must look beyond the Constitution itself. As the majori
ty observes, the text gives us "no reason to favor one article over the other."
\par Nor do the contemporaneous writings of the Framers of the Constitution she
d much light on the issue. } {\i The Federalist} { and other sources overflow wi
th references to the importance of an independent judiciary as a corollary of t
he very
centerpiece of the constitutional plan the separation of powers. But the re
cords of the constitutional era tell [**22] us virtually nothing about the Rec
ess Appointments Clause or how it was to interact with the tenure and salary pr
ovisions of
Article III.
\par [*1015] My major point of disagreement with the majority is its reliance
upon the executive's practice of making recess judicial appointments as virtua
lly the sole basis for its conclusion that the practice is constitutional. In
my view, the majo
rity skips what I believe should be a crucial step in the constitutional inquir
y: evaluating and balancing the competing constitutional values at stake. Beca
use of its uncritical acceptance of the historical practice as determinative of
the constitutiona
1 issue, the majority fails to make any serious comparative analysis of the con
cerns for governmental efficiency underlying the Recess Appointments Clause and
the principle of judicial independence underlying the tenure and salary provis
ions of
Article III.
\par We need only look to recent history to appreciate that there is genuine te
nsion between the values underlying the two opposing constitutional provisions.
President Eisenhower's recess appointments to the Supreme Court of Chief Just
ice Earl Warren in 195
3 and Justice Brennan in 1956 both created [**23] controversy about the legiti
macy of recess appointments
to that Court. Senator Joseph McCarthy's public interrogation of Justice Bren
nan while the latter was a sitting Justice of the Court tells its own cautionar
y tale:
\par Senator McCarthy. You, of course, I assume, will agree with me and a numb
er of the members of the committee -- that communism is not merely a political
way of life, it is a conspiracy designed to overthrow the United States Governm
ent.
\par M
r. Brennan. Will you forgive me an embarrassment, Senator. You appreciate tha
t I am a sitting Justice of the Court. There are presently pending before the
Court some cases in which I believe will have to be decided the question what i
S communism, at le
ast in the frame of reference in which those particular cases have come before
the Court.
\par I know, too, that you appreciate that having taken an oath of office it is
my obligation not to discuss any of those pending matters. With that qualific
ation, whethe
r the label communism or any other label, any conspiracy to overthrow the Gover
nment of the United States is a conspiracy that I not only would do anything ap
propriate to aid suppressing, but a conspiracy which, of course, [**24] like
every American, I
abhor.
\par Senator McCarthy. Mr. Brennan, I don't want to press you unnecessarily, b
ut the question was simple. You have not been confirmed yet as a member of the
Supreme Court. There will come before that Court a number of questions involv
ing the all-impor
tant issue of whether or not communism is merely a political party or whether i
t represents a conspiracy to overthrow this Government.
\par I believe that the Senators are entitled to know how you feel about that a
nd you won't be prejudicing then any cases by answering the question.
\par
\par }\pard \qj\widctlpar\adjustright {
\par } {\i Hearings Before the Senate Committee on the Judiciary on Nomination o
f William Joseph Brennan, Jr.: 85th Cong., 1st Sess., 17-18 (1957)}
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Even before Justice Brennan'
S ordeal, the recess appointment
of Chief Justice Warren provoked what seems to have been the first scholarly c
omment concerning the constitutionality of such appointments. nl The Warren app
ointment occurred after } {\i Brown V. Board of Education} {
, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1
954), was originally argued to the Supreme Court but before reargument actually
took place. In response to the Warren appointment, the eminent constitutional
scholar [**25] Professor Henry M. Hart, Jr. warned that for Warren to take hi
S seat and decide
cases before his confirmation by the Senate would "violate the spirit of the Co
institution, and possibly also its letter." } {\i Harvard Law School Record} {, Oc
tober 8, 1953, p.2, col.2. Professor Hart noted that Warren's permanent appoin
tment would be
\par
\par }\pard \qj\widctlpar\adjustright { [*1016]
subject to three future contingencies: (1) the decision of the President to for
ward his nomination to the Senate; (2) the decision of the President not to wit
hdraw the nomination before it has been acted upon; and (3) the decision of the
Senate to confirm
the nomination. The Senate will be entirely free
to postpone its action
until near the close of the session in order to see how the new nominee is goin
g to vote.
\par
\par
\par } {\i Id.} { Hart then stated, "I cannot believe that the Constitution conte
mplates that any Federal Judge should hold office, and decide cases, with
all these strings tied to him." } {\i Id.} { Recognizing that, as the majority h
ere stresses,
recess appointments had been made in the past and that Attorneys General had as
sumed such appointments to be valid, Hart stressed that "occasional practice ba
cked by mere assumption [**26] cannot settle a basic question of constitutiona
1 principle." } {
\i Id.} { Looking to "the spirit and purpose of the Constitution," Hart observed
,
\par
\par the impropriety [of recess appointments
to the federal judiciary] becomes unmistakable. On few other points in the Co
nstitutional Convention were the framers in such complete accord as on the nece
ssity of protecting judges from every kind of extraneous influence upon their d
ecisions.
\par
\par
\par } {\i Id.} { Hart concluded, a judge
\par
\par cannot possibly have this independence if his every vote, indeed his every
question from the bench, is subject to the possibility of inquiry in later com
mittee hearings and floor debates to determine his fitness to continue in judic
ial office.
\par
\par
\par } {\i Id.} { The majority today all but ignores the careful analysis of cons
titutional purposes and values that Professor Hart obviously believed was criti
cal to resolution of the tension between Article III and the Recess Appointment
S Clause.
\par
\par
Footnotes-
\par } \pard \qj)\fi360\sb120\widctlpar\adjustright {nl It was not until } {\i Uni
ted States V. Allocco} {, 305 F.2d 704 (2d Cir. 1962), that the question was app
arently first presented to an Article III court for decision. } {\i See} { Part
V } {\i infra} {.
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes-
[**27]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {To be sure, the executive's
practice of vesting recess appointees with Article III power has a long and imp
ressive historical pedigree, but the majority indiscri
minately defers to this practice as dispositive of its constitutionality. In m
y view, such uncritical acceptance of a practice as a basis for judging its con
stitutionality is inconsistent with the judiciary's historic role as the final
arbiter of the con
stitutionality of the actions of the political branches of government. } {\i Mar
bury V. Madison} {
, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803). To make my point that the majority
allows practice to play an exaggerated role in its constitutional analysis, I
will emplo
y a four-step inquiry. First, I will review the text of the Constitution. Sec
ond, I will examine the contemporaneous writings of the Framers as they pertain
to the two clauses in question. Third, I will weigh the competing values that
animate the two c
1
auses. Finally, after discussing the role of historical practice as a factor i
n constitutional analysis generally, I will consider the specific practice of m
aking recess judicial appointments as a factor in deciding the constitutionalit
y of that practice
\par 1. THE [**28] CONSTITUTIONAL TEXT
\par The Constitution presents us with two separate and contradictory clauses,
one in Article II and one in Article III, each clear and unambiguous on its fac
e. The Recess Appointments Clause, Article II, section 2, provides:
\par The President shall have Power to fill up all Vacancies that may happen du
ring the Recess of the Senate, by granting Commissions which shall expire at th
e End of their next Session.
\par
\par }\pard \qj\widctlpar\adjustright {
\par } {\i U.S. Const., art. II, \'a7 2, cl. 3}
\par \pard \qj\fi360\sb120\widctlpar\adjustright {When read in light of a prec
eding clause, U.S. Const. art. II, \'a7
2, cl. 1, which gives the President the general power to "appoint Ambassadors
Judges of the supreme Court, and all other Officers of the United State
s, whose Appointments are not herein otherwise provided for the languag
e of Article II
seems to empower the President to grant recess commissions to fill judicial vac
ancies.
\par Article III, on the other hand, seems equally clear that only persons with
the independence secured by life tenure and protection against diminished comp
ensation [*1017] may exercise the judicial power of the United States. The r
elevant portion of
Article III states simply and unconditionally,
\par The judicial [**29] Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may from tim
e to time ordain and establish. The Judges, both of the supreme and inferior C
ourts, shall hold their Offices during good Behaviour, and shall, at stated Tim
es, receive for th
eir Services a Compensation, which shall not be diminished during their Continu
ance in Office.
\par
\par }\pard \qj\widctlpar\adjustright {
\par } {\i U.S. Const. art. III, \'a7 1} On its face, this language admits o
f no exception; its command is that only judges with Article III protections ma
y wield Article III power.
\par } \pard qj\fi360\sb120\widctlpar\adjustright {
Hence, we face an extraordinary situation: a direct conflict between two provis
ions of the Constitution. No accommodation seems possible; one clause must yie
Id to the other. The majority, in holding that Judge Heen could serve as an Ar
ticle III
judge without possessing Article III protections, resolves the conflict in favo
r of the Recess Appointments Clause. In doing so, it necessarily reads into th
e unambiguous language of Article III an exception for recess appointees. I rec
ognize,
of course, that the converse is also true: to hold that the Recess Appointments
Clause does not apply to Article III
judges would [**30] in turn mean reading an exception into that clause. That,
in the last analysis, is the choice I believe we should make.
\par Because I agree with the majority that the tension between these two contr
adictory provisions cannot be resolved solely by reference to the Constitution
itself, n2 I turn next as we customarily do when the meaning of the Constitu
tion is not clear fr
om its text to the contemporaneous writings that reflect the thinking of the
Framers. Unfortunately, those sources also fail to tell us which of the two co
mpeting clauses the Framers intended to prevail over the other.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard qj\fi360\sb120\widctlpar\adjustright {n2 The two law review treatm
ents of the question, both student notes, also agree that the issue cannot be r
esolved by reference to the constitutional text alone. } {\i See} { Note, } {\i
Recess Appointments to Article III Courts: The Use of Historical Practice in Co
nstitutional Interpretation} {, 84 Colum. L. Rev. 1758, 1766 (1984) [hereinafter
cited as Note, } {\i Historical Practice} {}; Note, } {\i Recess Appointments
to the Supreme Court Constitutional But Unwise} {?, 10 Stan. L. Rev. 124, 13
0 (1957) [hereinafter cited as Note, } {\i Recess Appointments} {].
\par
\par } \pard \qj\widctlpar\adjustright {-
End Foo
tnotes
[**31]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {11. THE CONTEMPORANEOUS WRI
TINGS
\par The contemporaneous writings of the Framers are virtually barren of any re
ferences to the Recess Appointments
Clause. Although the record contains a few scattered references to the Clause
, it was never explained, debated or discussed in any meaningful way. } {\i See
}{ Note, } {\i Historical Practice} { at 1766-73; Note, } {\i Recess Appointments}
{
at 126-130. Other than the text of Article II, Section 2 itself, all we know
is that the Clause was proposed just ten days before the end of the Constitutio
nal Convention and was adopted without debate. 2 Farrand, } {\i
The Records of the Federal Convention of 1787} { 540 (1911); C. Rossiter, } {\i 1
787: The Grand Convention} { 224 (1966).
\par Even } {\i The Federalist} {, normally a fruitful source of information on t
he thinking of the Framers, is almost silent on the subject of the President's
power to make recess appointments. } {\i The Federalist} {
, No. 76, quotes the Clause itself but fails to mention the judicial branch of
government. n3 Although } {\i The Federalist} {, No. 78, does state that the "mod
e of appointing the judges
is the same" as that "fully discussed in the t
wo last numbers,"
} {\i id.} { at 503, "the two last numbers" [**32] of } {\i The Federalist} {, No
S. 76 and 77, which were concerned with the appointment of other federal office
rs, include no reference to the Recess [*1018] Appointments
Clause other than its verbatim quotation at the outset of No. 76.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } pard \fi360\sb120\widctlpar\adjustright {n3 } {\i The Federalist} {, No
67, (A. Hamilton) (Modern Library ed. 1937) [Hereinafter, all references to }
{\i The Federalist} { are to the Modern Library edition.], re
futes the specious argument by anti-federalists that the President would be emp
owered by the Recess Appointments Clause to make interim appointments to the Se
nate.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
\par } \pard j\fi360\sb120\widctlpar\adjustright {In contrast to the paucity o
f comments on the Recess Appointments Clause by the Framers, the historical rec
ord is a cornucopia of references to the principle of life tenure enshrined in
Article III.
History makes absolutely clear the supreme importance the Framers attached to a
n independent judiciary as a vital corollary to the fundamental concept of the
constitutional plan, the separation of powers.
\par The experience of the Framers with the colonial judiciary [**33] had not
been a happy one. The signers of the Decl
aration of Independence charged that the King "obstructed the Administration of
Justice by refusing his Assent to Laws for establishing Judiciary Powers. He
has made Judges dependent on his Will alone for the tenure of their office and
the amount and pay
m
ent of their salaries." The Declaration of Independence para. 11-12 (U.S. 1776)
The Framers recognized that these protections, when embodied in the Act of S
ettlement of 1701, had previously freed English judges from royal control. To
translate their co
ncern for judicial independence into practice, the Framers included in Article
III the requirement that federal judges have permanent tenure and undiminishabl
e compensation. } {\i See} { Pittman, } {\i
The Emancipated Judiciary in America: Its Colonial and Constitutional History} {
37 A.B.A.J. 485, 588 (1951). The Framers were determined to ensure that feder
,
al judges would not be beholden to the executive or the legislature but only to
the law and their own consciences.
\par In contrast with the dearth of references to the Recess Appointments
Clause, the contemporaneous writings overflow with commentary on the fundament
al importance of permanency [**34] in office as the cornerstone of an independ
ent judiciary. Alexander Hamilton, writing as Publius, eloquently expressed th
e co
ncerns of the Framers:
\par
\par }\pard \qj\widctlpar\adjustright {As liberty can have nothing to fear from
the judiciary alone, but would have everything to fear from its union with eit
her of the other departments; that as all the effects of such a union must ensu
e from
a dependence of the former on the latter, notwithstanding a nominal and apparen
t separation; that as, from the natural feebleness of the judiciary, it is in c
ontinual jeopardy of being overpowered, awed or influenced by its coordinate br
anches; and that a
S } {\i
nothing can contribute so much to its firmness and independence as permanency i
n office, this quality may therefore be justly regarded as an indispensable ing
redient in its constitution, and, in a great measure, as the citadel of the pub
lic justice and th
e public security} {.
\par
\par
\par } {\i The Federalist} {, No. 78 at 504-05 (emphasis added).
\par \pard \qj\fi360\sb120\widctlpar\adjustright {Hamilton also articulated th
e Framers' belief that life tenure was necessary to ensure that the judiciary W
ould play its crucial role as the guardian of individual liberty against the po
wer of government:
\par
\par } \pard \qj\widctlpar\adjustright {
If then, the courts [**35] of justice are to be considered as the bulwarks of
a limited Constitution against legislative encroachments, this consideration wi
II afford a strong argument for the permanent tenure of judicial offices,
since nothing will contribute so much as this to that independent spirit in ju
dges which must be essential to the faithful performance of so arduous a duty.
\par
\par
\par } {\i The Federalist} {, No. 78 at 508. Thus, the letter as well as the spi
rit and guiding intention of Article III
is inconsistent with the exercise of judicial power by recess appointees whose
tenure is dependent upon both political branches of government. n4
\par
\par
-Footnotes-
\par } \pard qj\fi360\sb120\widctlpar\adjustright {n4 The Columbia Note express
ed the conclusion as follows: "In short, the evidence is overwhelming that the
framers accorded a central role to article III's
tenure and salary provisions in ensuring judicial independence and thereby con
tributing to the constitutional scheme of separation of powers." Note, } {\i His
torical Practice} {, at 1767-68.
\par
\par \pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj\fi360\sb120\widct|par\adjustright {In sum, the Framers left us
an abundance of commentary [**36] on Article III, but only a few scattered gen
eral references to the Recess Appointments
Clause. The only explicit reference to the interaction of the [*1019] two pr
ovisions is in Edmund Randolph's letter to the Virginia House of Delegates expl
aining his reasons for not signing the proposed Constitu
tion transmitted to the states by the Constitutional Convention. 3 Farrand, } {\
i supra} {, 123-27.
\par In his letter, Randolph argues that the Constitution had created an excess
ively powerful executive, citing as partial evidence for this view his belief t
hat the Recess Appointments
Clause gave the President the power of conferring judicial commissions during
the recess of the Senate. There is no evidence, however, that Randolph's comme
nts about the Recess Appointments Clause in this letter represented anything ot
her
than the temporary position of a volatile political figure whose "gyrations" r
egarding both the value and meaning of the Constitution are well known to histo
rians. } {\i See} {, J. Main, } {\i The Anti-Federalists: Critics of the Constitu
tion, 1781-1788} {
257 (1961). By the time of Virginia's state convention on the Constitution, R
andolph had so far banished his earlier doubts regarding [**37] the Constituti
on that he had actually become one of its "staunchest supporters." G. Bancroft,
} {\i
History of the Formation of the Constitution of the United States} { 316 (1882).
\par Contrary to the impression created by his letter, Randolph stated at the V
irginia convention that the powers of the President were in all respects carefu
Ily circumscribed: "He can do no important act without the concurrence of the S
enate." 3 J. Elliott, }
{\i The Debates in the Several State Conventions on the Adoption of the Federal
Constitution} {, 201 (1907) (5 vols.) [hereinafter cited as } {\i Elliott's Deba
tes} {]. He attacked the provisions for the appellat
e jurisdiction of the federal judiciary, but he maintained that judicial indepe
ndence had been adequately guaranteed. 3 } {\i Elliott's Debates} {
205. Despite the fact that Randolph consistently highlighted the flaws in the
Constitution for the benefit of his fellow members of the Virginia state conven
tion, he never repeated his original concern about the Recess Appointments
Clause, even on the day the Clause was read aloud to the Virginia convention.
n5 In fact, the Virginia convention did not discuss the Clause at all. 3 } {\i E
lliott's Debates} {
As at the other [**38] state conventions, the only doubts raised at the Virg
inia convention about the independence of the judiciary stemmed from the fact t
hat the Constitution did not prohibit augmentation of judicial salaries, not fr
om the
Recess Appointments Clause. 3 } {\i Elliott's Debates} { 517.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n5 The Columbia Note acknowl
edges the limited force of Randolph's remarks: "These postconvention changes in
position undercut any attempt to attribute Randolph's initial understanding of
the
recess appointments clause to the framers as a group." Note, } {\i Historical Pr
actice} { at 1772 n.79.
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Other than Randolph's letter
, there is no evidence in any of the extant records of the Constitutional Conve
ntion or of the various state conventions that the Framers intended the Recess
Appointments
Clause to apply to the judiciary. } {\i See} { Farrand, } {\i The Records of the
Federal Convention of 1787} { (1911); J. Strayer, } {\i The Delegate from New Yo
rk}{
(1939) (Constitutional Convention Notes of John Lansing, Jr.); Hutson, "John D
ickinson at the Federal Constitutional [**39] Convention," 40 } {\i William and
Mary Quarterly} { 256 (1983); Elliott, } {\i
The Debates in the Several State Conventions on the Adoption of the Federal Con
stitution} { (1907). For all the record shows, the Framers' attention was never
focused on the conflict. If it did occur to them, it was not mentioned in th
e debates. As one commentator concludes, "The legislative history of article I
II and of the recess appointments clause reveals no specific intent on the part
of the framers regarding how the two provisions would interact." Note, } {\i Hi
storical Practice}
{ at 1768.
\par Thus the contemporaneous writings contain scant mention of the Recess Appo
intments Clause. They do contain extensive commentary on Article III, but with
the isolated exception of Randolph's letter, the contemporaneous writings do n
ot address the relat
ionship between the two clauses. As one scholarly commentary concluded:
\par [*1020] Although the legislative history of the recess appointments clau
se arguably supports extending the clause to vacancies in the federal judiciary
, this evidence must be balanced against the heavy emphasis that article III's
legislative history places on the value of judicial independence. [**40] Take
n together, therefore, the legislative history of the two provisions is equally
capable of supporting either of two interpretations: that the recess appointme
nts
clause was intended as a limited exception to article III's tenure and salary
provisions, or that the tenure and salary provisions are absolute requirements
and the recess appointments clause was therefore not intended to
extend to vacancies in the federal judiciary.
\par
\par } \pard \qj\widctIpar\adjustright {
\par Note, } {\i Historical Practice} { at 1773.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {III. CONSTITUTIONAL VALUES
\par } {\i A. The role of values in constitutional interpretation} {
\par The first step in the inquiry, examination of the constitutional text, and
the second step, exploration of the contemporaneous writings, leave us with an
unresolved conflict between two provisions of the Constitution and no real ind
ication of how the Fram
e
rs intended the two clauses to interact. Thus, the next step in our analysis -
- weighing the values that animate the two provisions -- becomes a vital part o
f the interpretive process. Only after that step is completed will I turn to t
he historical prac
tice of using the recess appointment power to fill vacancies in Article III
courts. The majority, in contrast, [**41] simply omits the step of weighing
the competing values, resulting in a truncated analysis based almost entirely o
n historical practice.
\par The Supreme Court has consistently observed the principle that in interpre
ting the Constitution, we are to be mindful of the concerns that animate its va
rious provisions. } {\i See e.g., Virginia V. Tennessee} {
, 148 U.S. 503, 519, 37 L. Ed. 537, 13 S. Ct. 728 (1893); } {\i Legal Tender Cas
es} {, 79 U.S. (12 Wall.) 457, 531, 20 L. Ed. 287 (1870); } {\i Gibbons V. Ogden}
{, 22 U.S. (9 Wheat.) 1, 187, 6 L. Ed. 23 (1824). The classic statement was pro
vided in } {\i
Prigg V. Pennsylvania} {, 41 U.S. (16 Pet.) 536, 10 L. Ed. 1060 (1842):
\par
\par } \pard \qj\widctlpar\adjustright {It wi
11, indeed, probably, be found, when we look to the character of the constituti
on itself, the objects which it seeks to attain, the powers which it confers, t
he duties which it enjoins, and the rights which it secures, as well as the kno
wn historical fact
that many of its provisions were matters of compromise of opposing interests a
nd opinions, that no uniform rule of interpretation can be applied to it, which
may not allow, even if it does not positively demand, many modifications, in i
ts actual applicat
i
on to particular [**42] clauses. And, perhaps, the safest rule of interpretat
ion, after all, will be found to be to look to the nature and objects of the pa
rticular powers, duties and rights, with all the lights and aids of contemporar
y history; and to
g
ive to the words of each just such operation and force, consistent with their 1
egitimate meaning, as may fairly secure and attain the ends proposed
I
f, by one mode of interpretation, the right must become shadowy and unsubstanti
al, and without an
y remedial power adequate to the end, and by another mode, it will attain its j
ust end and secure its manifest purpose, it would seem, upon principles of reas
oning, absolutely irresistible, that the latter ought to prevail.
\par
\par
\par } {\i Id.} { at 610-12.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Inquiry into
fundamental constitutional values is especially important when two provisions o
f the Constitution are in tension with each other. The Court's attempt to reso
Ive the conflict between the two religion clauses of the First Amendment illust
rates the essentia
1 process of weighing competing constitutional values. The Establishment Claus
e and the Free Exercise Clause are both cast in absolute terms, and either of t
hem, if expanded to a logical extreme, [**43] would tend to clash with the ot
her. } {\i
Walz V. Tax Commission} {
, 397 U.S. 664, 668-69, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). In resolving t
his tension, the Supreme Court attempts to strike [*1021] a balance between t
he values implicated by the two clauses. n6 In balancing the Establishment Clau
se and the
Free Exercise Clause,
\par Both the Court and various commentators have explored the historical backg
round of the first amendment in order to guide interpretation of the two religi
on clauses, but here as elsewhere, "too literal [a] quest for the advice of the
Founding Fathers" is often futile. The historical record is ambiguous, and man
y of today's problems were of course never envisioned by any of the Framers. Un
der these circumstances, one can only examine } {\i
the human values and historical purposes underlying the religion clauses to dec
ide what doctrinal framework might best realize those values and purposes today
}{.
\par
\par } \pard \qj\widctlpar\adjustright {
\par L. Tribe, } {\i American Constitutional Law} {, \'a7 14-3 (emphasis added).
\par
\par
-Footnotes-
\par } \pard qj\fi360\sb120\widctlpar\adjustright {
n6 In striking the balance, the Court charts a course of neutrality that attemp
ts to preserve the values of autonomy and freedom of religious bodies while avo
iding any semblance of established religion. For example, in } {\i Tilton V. Ric
hardson} {
, 403 U.S. 672,
29 L. Ed. 2d 790, 91 S. Ct. 2091 (1971), the Supreme Court decided whether the
Higher Education Facilities Act of 1963, authorizing aid to church-related ins
titutions, violated either the Establishment Clause or Free Exercise Clause of
the First Amendmen
t
The Court framed its inquiry as follows: "First, does the Act reflect a secul
.
ar legislative purpose? Second, is the primary effect of the Act to advance or
inhibit religion? Third, does the administration of the Act foster an excessiv
e government entan
glement with religion? Fourth, does the implementation of the Act inhibit the f
ree exercise of religion?" } {\i Id.} {
at 678. Thus, although the Court did not explicitly state its approach, it res
olved the conflict by examining the Act in light of the values underlying both
constitutional provisions.
\par
\par } \pard \qj\widctIpar\adjustright {-
End Foo
tnotes-
[**44]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {} {\i Nebraska Press Ass'n V
Stuart} {, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976) -- a case inv
olving a conflict between the
fair trial guarantee of the Sixth Amendment and the free press command of the
First Amendment further illustrates how the Court weighs competing values in
interpreting and applying the Constitution. In } {\i Nebraska Press} {
, the Court was confronted with a
prior restraint imposed to protect one vital constitutional guarantee and the e
xplicit command of another that the freedom to speak and publish shall not be a
bridged." 427 U.S. at 570. The Court adopted a balancing approach, determining
"as Learned Hand p
ut it, [whether] 'the gravity of the "evil," discounted by its improbability, j
ustifies such invasion of free speech as is necessary to avoid the danger. }
{\i Id.} { at 562. Implicitly, } {\i Nebraska Court} {
resolves the tension between the First and Sixth Amendments b
y balancing the values of free speech against those of fair press on a case-by-
case basis. The Court concluded that the prior restraint was invalid because th
e state had not met the "heavy burden" required to justify a prior restraint; t
hus, in the partic
ular case, the Court decided [**45] the balance favored the values embodied in
the First Amendment.
\par We cannot adopt such a case-by-case balancing approach to resolve the tens
ion between the Recess Appointments Clause and Article III, because the questio
n whether recess appointees may exercise the judicial power of Article III
demands a categorical yes or no answer. n7 Nevertheless, both [*1022] } {\i Wa
lz} { and } {\i Nebraska Press} { suggest that the resolution of conflict between
two provisions of the Constitution requ
ires an evaluation and balancing of underlying values. Our next step, therefor
e, is to evaluate and balance the competing values underlying the Recess Appoin
tments Clause and Article III.
\par
\par \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } pard \qj\fi360\sb120\widctlpar\adjustright {n7 I recognize that whenever
possible we should strive to reconcile an apparent conflict in the Constitutio
n. A classic statement of this principle follows:
\par
\par }\pard \qj\widctlpar\adjustright {What then, becom
es the duty of the court? Certainly, we think, so to construe the constitution
, as to give effect to both provisions, so far as it is possible to reconcile t
hem, and not to permit their seeming repugnancy to destroy each other. We must
endeavor so to co
nstrue them, as to preserve the true intent and meaning of the instrument.
\par
\par
\par } {\i Cohens V. Virginia} {, 19 U.S. (6 Wheat.) 264, 393, 5 L. Ed. 257 (182
1). As Chief Justice John Marshall stated in } {\i Marbury V. Madison} {
, "It cannot be presumed, that any clause in the constitution is intended to be
without effect; and therefore, such a construction is inadmissible, unless the
words require it." 5 U.S. (1 Cranch) 137, 174, 2 L. Ed. 60 (1803). In the pres
ent case, however,
we confront an unavoidable conflict between two provisions of the Constitution
No accommodation is possible; one clause must yield to the other with respec
t to judicial appointments. Of course, construing the Recess Appointments
Clause not to apply to the judiciary would not render it meaningless; it would
still apply with full force to appointments to executive agencies.
\par
\par
End Footnotes-
[**46]
\par \pard \qj\fi360\sb120\widctlpar\adjustright {\i B. The competing values
animating the two clauses} {
\par We begin the process of weighing the competing values by considering the V
alues that animate Article III. There can be no doubt that the Framers conside
red the salary and tenure protections of Article III to be critical institution
al safeguards of
judicial independence. Recently, in } {\i Pacemaker Diagnostic Clinic of Americ
a v. Instromedix} {, 725 F.2d 537, 541 (9th Cir. 1984) (en banc), our court reaf
firmed this fundamental constitutional value: "The attributes of Article III
judges, permanency in office and the right to an undiminished compensation, are
as essential to the independence of the judiciary now as they were when the Co
nstitution was framed." The Supreme Court stressed the importance of Article II
I
safeguards to judicial independence in } {\i Northern Pipeline Co. v. Marathon
Pipe Line Co.} {, 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858 (1982):
\par
\par } \pard qj\widctlpar\adjustright {In sum, our Constitution unambiguously e
nunciates a fundamental principle that the "judicial Power of the United Sta
tes" must be reposed in an independen
t Judiciary. It commands that the independence of the Judiciary be jealously g
uarded, and it provides clear [**47] institutional protections for that indepe
ndence.
\par
\par
\par } {\i Id.} { at 60; } {\i see also United States V. Will} {, 449 U.S. 200, 21
7-18, 66 L. Ed. 2d 392, 101
S. Ct. 471 (1980) ("A Judiciary free from control by the Executive and the Leg
islature is essential if there is a right to have claims decided by judges who
are free from potential domination by other branches of government."). n8
\par
\par
Footnotes-
\par } \pard \fi360\sb120\widctlpar\adjustright {n8 There is extensive schola
rly commentary on the relationship between judicial independence and the princi
ple of separation of powers. } {\i See generally} { G. Wood, } {\i
The Creation of the American Republic, 1776-1787} {, 453-63 (1969); Levi, } {\i S
ome Aspects of Separation of Powers} {, 76 Colum. L. Rev. 371 (1976); Note, } {\i
Federal Magistrates and the Principles of Article III} {, 97 Harv. L. Rev. 1947
, 1949 (1984).
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
\par } \pard qj\fi360\sb120\widctlpar\adjustrigh {In my view, the majority sim
ply fails to take the institutional protections of Article III as seriously as
our court did in } {\i Pacemaker} { and the Supreme Court did in } {\i Marathon} {
; indeed, the majority denigrates the tenure [**48] and salary provisions when
it argues that there are no examples of executive or legislative coercion of a
recess appointee. This rationale implies that the institutional protections of
Article III
are of little consequence because we can rely on the integrity and
courage of individual judges to assure judicial independence. The Framers, qui
te obviously, did not share that view. Rather, they were firm in their convict
ion that permanency of office and salary protection were crucial institutional
safeguards against
encroachment on the judicial power by the political branches. As our court st
ated recently, "Our own experience attests to the substance and reality of [Art
icle III's]
guarantees. A separate and independent judiciary, and the guarantees that assu
re it, are present constitutional necessities, not relics of antique ideas." } {
\i Pacemaker} {, 725 F.2d at 541.
\par Moreover, we must preserve not only the reality but also the appearance of
judicial independence. Public confidence in the integrity and independence of
the
courts is imperative, especially when a constitutional confrontation between th
e judiciary and the political branches creates a national crisis. Such confide
nce [**49] could be threatened if, for example, recess appointees were called
upon to participat
e in a highly charged case involving the constitutional limits on presidential
power. The facts of } {\i Youngstown Sheet & Tube Co. V. Sawyer} {
, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) provide a thought provokin
g historical hypothetical. Imagine a rece
SS appointee sitting on a Supreme Court that was otherwise divided, four to fou
r, on the question of the constitutionality of President Truman's steel mill se
izure. Imagine further that this hypothetical [*1023] justice is courageous a
nd intends to vote
his conscience. Were he to believe the President's action in seizing the mills
was unconstitutional, the recess appointee would confront the possibility that
an infuriated President might withdraw his nomination. If, on the other hand,
the justice were t
o believe the seizure was constitutional, he would find it difficult if not imp
ossible to avoid the appearance that his tie breaking vote had been influenced
by the President's power to cut short his tenure on the Court. } {\i United Sta
tes V. Nixon} {
, 418 U.S. 68
3, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974) is another case from our recent pas
t [**50] in which public faith in the independence of the judiciary could have
been shaken if a recess Supreme Court appointee had provided a swing vote. Th
ese historical hyp
otheticals graphically illustrate the importance of the tenure and salary provi
sions of Article III as safeguards against institutional destabilization.
\par Fortunately, we have not had to confront these disturbing scenarios, becau
se circumstances have not yet combined to produce a recess appointment
to our highest court during such trying times of national crisis. There are,
however, no guarantees against such an occurrence. Entrusting the decision in
such cases -- where the constitutional limits of presiden
tial power are on the line -- to judges whose office depends on whether the Pre
sident decides to withdraw their nomination, would threaten seriously the ideal
of separation of powers. Yet, if the majority's approach prevails, it may tak
e a crisis of the
magnitude of } {\i Youngstown} { or } {\i United States V. Nixon} { to cause us to
regret today's decision.
\par The threat of institutional destabilization posed by recess appointments i
S not purely hypothetical. History informs us that during the civil rights str
uggle of the
[**51] 1960's, political pressures induced recess appointees to avoid politica
Ily sensitive cases. A writer of contemporary history has recounted some of th
e events of that turbulent period:
\par [Griffin] Bell and [Walter] Gewin both began service on the Fi
fth Circuit on October 6, 1961, with interim appointments so they could begin W
ork on the overloaded backlog of cases. But their appointments would not becom
e final until after confirmation hearings by the Senate Judiciary Committee and
approval by the S
enate the following March. At an initial meeting with [Chief Judge Elbert] Tut
tle, Bell suggested that the sensitivity of race cases was such that they might
create problems for Gewin at the confirmation hearings.
\par Tuttle agreed and said he would not assign such cases to Gewin until after
confirmation and for the same reason would also withhold such assignments from
Bell.
\par
\par } \pard \qj\widctIpar\adjustright {
\par J. Bass, } {\i Unlikely Heroes} { 164 (1981). The difficulty with such judi
cial accommodation to political pressure is that it requires the as
signment process itself to depart from strict neutrality and enter the realm of
political machination. Yet, a fundamental purpose of Article III was to isola
te [**52] the judiciary from just such political entanglements.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {The strain on judicial indep
ende
nce and the threat to the appearance of independence exemplified by the Fifth C
ircuit's experience during the struggle for civil rights and the confrontation
of Justice Brennan by Senator McCarthy are but two examples of the potentially
pernicious effects
of departing from the Article III
mandate that judicial power be exercised only by judges with permanent tenure a
nd protection against diminution of salary. We have no way of knowing how many
other recess appointees may have been shunted away from controve
rsial cases because they were vulnerable to political retaliation for unpopular
decisions. Nor do we have any way of knowing if a judge privately succumbs to
intense pressure and decides a case in a manner that ensures his confirmation
rather than accord
ing to the dictates of legal principle and precedent. What we do know is that t
he constitutional plan of separation of powers rests on clear institutional pro
tections for judicial independence.
\par [*1024] The concerns for efficiency, convenience, and expediency that un
derlie the Recess Appointments
Clause pale in comparison. The purpose served [**53] by the President's powe
r to fill judicial vacancies during a recess of the Senate is obviously to avoi
d delay in the administration of justice in federal cour
ts. I recognize that such a recess commission allows a new judge to begin work
ing immediately on a backlog of cases rather than waiting for the Senate to rec
onvene. There are ways, however, of coping with pressing caseloads without com
promising the prin
c
iple of judicial independence. Because district and circuit judges are largely
interchangeable, interdistrict or intercircuit assignments provide an expedien
t and effective way of dealing with a short term problem. Such transfers are a
common practice i
n the federal judicial system.
\par When it comes to the Supreme Court, different considerations might come in
to play. In the event of a freak accident for example, the deaths of enough
Supreme Court Justices to void a quorum -- use of the executive's recess appoi
ntment
power could be one way to deal with an emergency. Congress, however, has the
authority to provide for such exigencies in ways that do not compromise judicia
I independence. When, for example, the Supreme Court is unable to muster a quo
rum to
hear a direct appeal [**54] from a district court, it is directed by statute
to remand a case for decision by a special panel of the circuit that includes t
he district from which the appeal was taken. 28 U.S.C. \'a7 2109 (1982); } {\i
see also United States v. Aluminum Co. of America} {
, 148 F.2d 416, 421 (2d Cir. 1945) (example of such a special panel). Moreover
, in the unlikely event of a true emergency demanding immediate action when the
Supreme Court lacks a quorum, the Senate can reconvene in a matter of days
,
if not hours to perform its constitutional role -- giving "advice and consent
" to the executive's judicial nominations.
\par The majority asserts that the Recess Appointments Clause is necessary to a
void "the denial of the important rig
ht of access to the Courts" and to prevent "the executive from being incapacita
ted during the recess of the Senate"; it does not, however, cite a single insta
nce when use of the recess appointment
power was necessary to achieve those objectives. Indeed, the majority present
S no evidence that any President made a recess appointment to ensure the contin
ued functioning of the judiciary through a crisis that could not have been hand
led by existing
Article III judges. With one exception, [**55] the federal courts have funct
ioned since 1964 without the assistance of recess appointees. The sole exceptio
n is Judge Heen.
\par Thus, could we set historical practice aside, I believe our decision today
would be relatively easy. Given that the language of the two clause
S is in conflict and that the intentions of the Framers are unclear, the princi
ples that animate the salary and tenure provisions of Article III
-- judicial independence and separation of powers -- clearly outweigh the conce
rns of expediency and efficiency that underlie the Recess Appointments
Clause. In other words, if we were writing on a clean slate, if we were revie
wing Judge Heen's recess commission without history to support it, I find it in
conceivable that we would interpret the Constitution as the majority does today
subordinating
Article III values to the executive's general power to make recess appointments
With that thought in mind, I turn to the role of historical practice in the c
onstitutional equation.
\par IV. HISTORICAL PRACTICE
\par The fourth
step of the inquiry -- factoring the historical practice of recess judicial ap
pointments into the constitutional analysis brings into sharp relief the maj
ority's [**56] almost exclusive reliance on a unilateral practice of the execu
tive as the justif
ication for finding the practice to be constitutional.
\par } {\i A. The judicial role: Evaluation of historical practice} {
\par In two recent cases, } {\i Immigration and Naturalization Service V. Chadha
}{, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), and } {\i Marsh V. C
hambers} {
, 463 U.S. 783, [*1025] 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), the Suprem
e Court developed an analytic framework for evaluating historical practice in c
onstitutional interpretation. } {\i Chadha} {
teaches us that even a long historical pedigree does not conclusively establis
h the constitutionality of a practice. } {\i Marsh} {
illustrates that in limited circumstances historical practice may be an accura
te guide to the intentions of the Framers. The two cases together establish the
principle that the courts must critically evaluate a historical practice befor
e deciding how muc
h weight to accord it in the process of interpreting the Constitution.
\par In } {\i Chadha} {, the Supreme Court resolved a conflict between historical
practice and the principle of separation of powers, analogous to the conflict
we confront today. At issue was the
*57] constitutionality of a statute authorizing one house of Congress to inval
idate by resolution a decision of the executive branch made pursuant to congres
sionally delegated authority. When the Court decided } {\i Chadha} {
, the one-house veto was a practice of long and continuous standing. } {\i See
Chadha} {
, 103 S. Ct. at 2793 (White, J., dissenting). Yet, that fact did not deter the
Court from declaring the practice unconstitutional. In fact, Chief Justice Bu
rger noted that "our inquiry is sharpened rather than blu
nted by the fact that Congressional veto provisions are appearing with increasi
ng frequency in statutes which delegate authority to executive and independent
agencies
} {\i Chadha} {, 103 S. Ct. at 2781. The teaching of {\i Chadh
a} {
is clear. Historical practice is not irrelevant to Constitutional inquiry, bu
t it will not "save [a practice]
if it is contrary to the Constitution."
} {\i Id.} { at 2781.
\par } {\i Chadha} { does not, I hasten to add, stand for the proposition that hi
storical practice has no role to play in constitutional interpretation. Indeed
, } {\i Marsh V. Chambers} {
is authority that a practice with a lineage that can be traced back to the tim
e of the Framers may [**58] serve as a guide to the Framers' understanding of
the workings of the Constitution. But {\i Marsh} { al
so illustrates the proposition that rather than simply accepting the historical
practice, courts should evaluate carefully a historical practice dating back t
o the Framers before deciding its constitutionality.
\par In } {\i Marsh} {, the Court held that the Nebraska 1
egislature's practice of opening each session with a prayer offered by a state-
paid chaplain did not violate the Establishment Clause. In reaching that decis
ion, the Court considered the practice of the First Congress, which not only ap
pointed the first
legislative chaplain but also drafted and recommended the Bill of Rights for ad
option by the states. The Court cited to a uniquely full historical record ind
icating that the practice was extensively considered and approved by the Framer
S. } {\i Id. {
, 103 S. Ct. at 3335. The bill to appoint a legislative chaplain was extensivel
y debated by the First Congress. Indeed, the bill was opposed by John Jay and
John Rutledge on First Amendment grounds. The Court in } {\i Marsh} {
cited this unique record of debate and opposition as evidence that the "subjec
t was considered carefully and the [**59] action not taken thoughtlessly
...
} {\i Id.} { Thus, the teaching of {\i Marsh} {
is that historical practice is only to be given decisive weight if it is "infu
se[d]
with power" by the considered judgment of the Framers following car
eful debate. } {\i Id.} {
\par The majority apparently reads } {\i Marsh} as authority for according grea
t weight to the practice of making recess judicial appointments because the pra
ctice also dates back to the administration of
George Washington. In doing so, the majority overlooks the } {\i Marsh} {
Court's careful evaluation of the context and characteristics of the practice
of appointing legislative chaplains before accepting it as a reliable guide to
constitutional meaning. Only aft
er stressing that the practice was carefully debated and adopted by the First C
ongress, and that the First Congress drafted and proposed the Bill of Rights, d
id the Court accord the practice substantial weight in interpreting the First A
mendment. } {\i
Id. Chadha} { illustrates the corollary of } {\i Marsh} {: even longstanding histo
rical practice should receive [*1026] little deference if it sheds no light o
n the intentions of the Framers.
\par } \pard lqj\widetlpar\adjustright {\i B. Historical practice and the Frame
rs'} { [**60] } {\i intent: No record of considered deliberation} {
\par }\pard \qj\fi360\sb120\widctlpar\adjustright {Thus our task is to evaluate
critically the historical practice of recess judicial appointments. The majori
ty treats this case as if } {\i Marsh} { were controlling rather than } {\i Chadha
}{
I recognize that the practice we consider today is similar to the practice th
e Court evaluated in } {\i Marsh} {
in one important respect: it stretches back to the time of the Framers. There
is, however, an equally important difference. President Washington's use of th
e recess appointment power to confer interim judicial commis
sions is not accompanied by a record of considered deliberation that gives us m
eaningful insight into the intentions of the Framers.
\par In this critical respect, a close comparison of the case here with } {\i Ma
rsh} { is instructive. In the case at hand, the historical record fails to info
rm us whether that the Framers considered the possibility that recess appointme
nts could violate
Article III. Indeed, the majority is careful to observe that these appointment
S by President Washington were made without objection or apparent consideration
of the potential conflict with Article III.
n9 This blank record stands in sharp contrast with the [**61] full record of p
lenary consideration given by the First Congress to the First Amendment implica
tions of appointing a legislative chaplain. Thus, the early historical practice
of
recess appointments to the judiciary has not been "infused with power" by the c
onsidered judgment of the Framers. As } {\i Marsh} { suggests, such a practice is
entitled to less deference than a practice that we
know was "considered carefully" by the Framers. } {\i Marsh} {, 103 S. Ct. at 333
5.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard qj\fi360\sb120\widctlpar\adjustright {n9 The Columbia Note agrees:
"At no time during this early period did opposition to the practice make its W
ay into the public record, either in Congress or the courts." Note, } {\i Histor
ical Practice} {
, at 1776.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Moreover, the first legislat
ive chaplain was appointed by the very S
ame body the First Congress that proposed the Bill of Rights. There is n
o reason to credit George Washington with any special insight into how the Fram
ers intended the recess appointment power of Article II
to interact with the salary and tenure provisions of Article III. [**62]
\par There is a ready explanation as to why the public record does not reflect
that President Washington's recess judicial appointments were subject to the sa
me careful scrutiny as was the appointment of a legislative chaplain
by the First Congress. Unlike the practice approved by the collective action o
f Congress in } {\i Marsh} {, the use of the recess appointment
power to confer interim judicial commissions involves the unilateral action of
individual Presidents. Although Congress may ultimately confirm a recess appoi
ntee, it has no authority or opportunity to review the President's exercise of
his
recess appointment power because an interim commission is simply not subject to
Senate approval.
\par The distinction between the unilateral h
istorical practice of the executive and the collective actions of the Congress
becomes important in the process of assessing the interpretive weight of the pr
actice. Congress is a deliberative body composed of peers. An action taken by
Congress almost n
e
cessarily is subject to constitutional challenge and reasoned debate by the mem
bers of that body. A unilateral action by the President, in contrast, can be i
mplemented without debate or discussion. Although [**63] the majority is corr
ect in observing t
hat Alexander Hamilton and John Jay were members of Washington's first cabinet,
the historical record does not tell us whether Hamilton and Jay had even consi
dered the question whether Article III limited the executive's recess appointme
nt
power to non-judicial offices, or, if they did, whether they had occasion to e
xpress their views, whatever they may have been, in the privacy of a Cabinet me
eting or in conversation with the President alone.
\par What we do know is that Hamilton and Jay were faced with different concern
S as [*1027] members of Washington's cabinet than they were as architects of
the Constitution and authors of } {\i The Federalist} {
Members of a cabinet have political agendas, and the fact that they may not h
ave spoken out against a recess judicial a
ppointment does not necessarily mean that they considered it to be constitution
al. As members of a national administration, they very well may have been preo
ccupied with other matters deemed more pressing at the time; they were, after a
11, faced with a W
i
de range of problems as members of the first administration of a new government
Voicing objection about the constitutionality of [**64] recess judicial com
missions may not have been very high on their political agenda. Moreover, the
realities of getti
n
g the job done and accommodating various contending factions do not lend themse
Ives to the same process of reasoned deliberation and debate as did the framing
of our fundamental charter or of the Bill of Rights. Finally, members of eith
er political branc
h are not in the same position as sitting Article III judges faced with a decis
ion affecting the interests of real parties engaged in a concrete dispute.
\par Recently, Justice Rehnquist cited a clear example of the dramatic change i
n attitude toward the meaning of the Constitution that can accompany an individ
ual's switch in roles from holding office in one of the political branches to t
he judiciary:
\par
\par } \pard \qj\widctlpar\adjustright {In the fall of 1864, the constitutionali
ty of the so-called "greenback legislation" which the government had u
sed to finance the war effort was headed for a Court test, and Lincoln was very
much aware of this fact. He decided to appoint his Secretary of the Treasury,
Salmon P. Chase, who was in many respects the architect of the greenback legisl
ation, saying to a
confidant that "We wish for a Chief Justice who will [**65] sustain what has b
een done in regard to emancipation and the legal tenders. We cannot ask a man
what he will do, and if we should, and he should answer us, we should despise h
im for it. Theref
ore, we must take a man whose opinions are known" 2 Warren 401.
\par
\par
\par Address by Associate Justice Rehnquist, "Presidential Appointments to the
Supreme Court," University of Minnesota College of Law (October 19, 1984) (repo
rted in N.Y. Times, October 20, 1984 \'a7
1, at 1, 9.). As Justice Rehnquist reports, the changed attitude that accomp
anied Chase's new role thwarted Lincoln's intentions:
\par
\par The ultimate irony in Lincoln's effort to pack the Court was the Court's f
irst decision in the so-called Legal Tender Cases, } {\i Hepburn V. Griswold} {
, 75 U.S. 603, 8 Wall. 603, 19 L. Ed. 513. In 1870 the Court held, in an opinio
n by Chief Justice Chase, who had been named Chief Justice by Lincol
n primarily for the purpose of upholding the greenback legislation, that this 1
egislation was unconstitutional
Chief Justice Chase's vote in the lega
1 tender cases is a textbook example of the proposition that one may look at a
legal question dif
f
erently as a judge than one did as a member of [**66] the Executive Branch. T
here is no reason to believe that Chase thought he was acting unconstitutionall
y when he helped draft and shepherd through Congress the greenback legislation,
and it may well b
e
that if Lincoln had actually posed the question to him before nominating him a
S Chief Justice, he would have agreed that the measures were constitutional. B
ut administrators in charge of a program, even if they are lawyers, simply do n
ot ponder these qu
estions in the depth that judges do, and Chase's vote in the legal tender cases
is proof of this fact.
\par
\par
\par } {\i Id.} { Even if Hamilton and Jay in their capacity as members of the
first Cabinet had directly confronted the question of the constitutionality
of recess appointments
to the judiciary, they would not have faced a concrete controversy exposed to
the light and heat of the adversarial process. n10
\par
\par
-Footnotes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n10 For the same reason, the
majority's observation that individual judges did not object to their own rece
SS appointments
is of little consequence. The recess appointee has no formal opportunity and
little incentive to consider in depth the constitutionality of his own appointm
ent.
\par
\par }\pard \qj\widctlpar\adjustright { {-
End Foo
tnotes
[**67]
\par } \pard \qi\fi360\sb120\widctlpar\adjustright { [*1028] To sum up, } {\i Ma
rsh} { establishes that a lineage that began with the Framers is a necessary con
dition that must be met for a historical practice to be conside
red a reliable guide to the intentions of the Framers. Just as clearly, however
, such a lineage is not a sufficient condition. If the Framers adopted a pract
ice carelessly or without attention to a possible constitutional infirmity, the
n the lineage is e
n
titled to little weight in constitutional analysis. Although the practice of r
ecess judicial commissions does stretch back to the time of the Framers, there
is no record that the practice was adopted through a process of reasoned delibe
ration. After eva
luating the practice in light of the standards applied by the Supreme Court in
} {\i Marsh} { and } {\i Chadha} {, I cannot escape the conclusion that the early h
istorical practice is not a reliable indicator that the Framers intended the re
cess appointment
power to extend to vacancies in Article III courts.
\par } {\i C. Historical practice and structural accommodation: Judicial silenc
e and individual liberties} {
\par Even though the historical practice of recess judicial appointments is not
an accurate guide to the Frame
rs' intentions, [**68] it could still be argued that the judiciary should def
er to the executive's longstanding practice on the theory that it constitutes a
"structural accommodation" between the various branches of government. One com
mentator articulat
ed the theory as follows:
\par
\par }\pard \qj\widctlpar\adjustright {
Because the Constitution is a broad charter of government and not a statute, it
establishes a flexible framework for the exercise of national power. The legi
slative, executive, and judicial branches are not hermetically sealed u
nits with exactly defined powers, but are interlocking spheres of influence, ea
ch with a core of constitutionally assigned functions and enumerated powers. T
hus, situations arise in which it is charged that one branch's interpretation o
f the scope of its
authority exceeds the limits imposed by either the constitutional text or struc
ture. In such situations, it may be possible to show that similar exercises of
power have occurred repeatedly in the past and have not been challenged or ope
nly opposed by the
other two branches. A court may be offered this evidence with the argument tha
t historical practice has "settled" the constitutional question at, issue, rega
rdless of whether the practice took [**69] place early enough in the nation's
history to be capa
ble of providing evidence of original intent.
\par
\par
\par Note, } {\i Historical Practice} {, at 1777-78. The Supreme Court's decisio
n in } {\i Chadha} { establishes that the mere fact that historical practice is o
f long standing does not relieve the judiciary of the responsibility
of assessing the practice and measuring it against constitutional standards. I
n the case at hand, two reasons emerge for concluding that the historical pract
ice of recess judicial appointments is not entitled to judicial deference as ev
idence of a "struc
tural accommodation". First, judicial silence cannot be interpreted as acquies
cence in the constitutionality of a practice because Article III
courts cannot react to an encroachment on their separate powers until presented
with the issue in a concrete case or controversy. Second, because Article III
's
tenure and salary provisions are designed as safeguards of individual as well
as institutional interests, the courts have a duty to prevent erosion of those
safeguards that transcends the structural importance of an independent judiciar
y.
\par \pard qj\fi360\sb120\widctlpar\adjustright {\i 1. Inaction by the judic
iary cannot represent acquiescence in a structural} { [**70] } {\i accommodati
on} {
The judiciary's role in our system of checks and balances is a passive one
Because of the case or controversy requirement of Article III,
federal courts can only act when a dispute is presented to them by parties with
a concrete stake in the outcome. The courts do not initiate law suits; rather
they react to actions filed by parties. Even when deciding cases or controve
rsies, "the judicial branch acts primarily on the litigants before the court."
} {\i Pacemaker} {, 725 F.2d at 542.
\par [*1029] In contrast, the political branches, the legislature and the exe
cutive, are both active. Both the President and Congress have the power t
o initiate action to define operationally their role in the constitutional sche
me of separate and divided powers. Thus, historical acquiescence of the politi
cal branches in a practice of uncertain constitutional validity can arguably be
defended as a "st
ructural accommodation" that ought not be upset by the courts. } {\i Cf.} { Note
,
} {\i Historical Practice} {
at 1773. With the political branches, this "structural accommodation" can, a
,
t least to some extent, be inferred from silent acceptance by one political bra
nch in
the face of action [**71] by the other. The important distinction is that si
lence by the courts cannot be construed as acquiescence in the constitutionalit
y of even a longstanding practice.
\par This distinction sheds light on two cases cited by the majority for the br
oad proposition that historical practice is entitled to judicial deference. It
is true that in } {\i United States v. Curtiss-Wright Export Corp.} {
, 299 U.S. 304, 81 L. Ed. 255, 57 S. Ct. 216 (1936), the Court did in part rely
on historical practice in
upholding the Congressional delegation to the President of the power to declar
e illegal the provision of arms to nations involved in the Chaco conflict. } {\
i Id.} { at 327-29. } {\i J.W. Hampton, Jr., & Co. V. United States} {
276 U.S. 394, 72 L. Ed. 624, 48 S. Ct. 348
,
(1928), also involved a constitutional challenge to the delegation of power by
Congress to the executive. nll Because both cases involve the constitutionality
of Congressional delegations of authority to the President, they are distingui
shable from the in
stant case, which involves the independence of the passive branch, the judiciar
y. n12
\par
\par }\pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n} Despite broad language i
n } {\i Curtiss-Wright} { to the effect that "an impressive array of I
egislation
enacted by nearly every Congress from the beginning of our nat
ional existence
must be given unusual weight," 299 U.S. at 327, a careful
examination of Justice Sutherland's opinion reveals that the historical factor
was invoked only
a
fter a long and careful analysis of constitutional policies and values. Indeed
one influential commentator described the opinion as "theoretical" and observed
that, "although the decision might have been bottomed upon narrower grounds, J
ustice Sutherland
accepted the case as an invitation to propound certain of his long-held convict
ions about the source and distribution of the federal government's foreign affa
irs power." L. Tribe, } {\i American Constitutional Law \'a7 4-2} {, at 159 (197
8). } {\i
Curtiss-Wright} { is not authority for the proposition that longstanding histori
cal practice should be decisive and end further inquiry into fundamental consti
tutional values. Quite the contrary, } {\i Curtiss-Wright} {
stands squarely in the tradition of careful constitutional interpretation that
necessarily involves close scrutiny of the values that animate the provisions
of the Constitution.
\par Similarly in } {\i J. W. Hampton} {, Chief Justice Taft undertook a careful
analysis of the policies and principles underlying the separation of powers and
co
ncluded that Congressional delegation of the power to fix certain tariff rates
was consistent with those principles. 276 U.S. at 405-411. Only after that inq
uiry was complete did Chief Justice Taft turn to a consideration of historical
practice. } {\i
Id.} { at 412. Again a close reading of the decision leads to the conclusion tha
t the process of constitutional interpretation is not complete absent careful a
ttention to constitutional values and principles. [**72]
\par n12 Moreover, all of the cases cited by the Columbia Note in support of th
e structural accommodation theory involve the relationship between the politica
I branches the executive and the legislature and not the independence of
the judiciary. } {\i
See} { Note, } {\i Historical Practice} {, at 1778-80. For example, the } {\i Pock
et Veto Case} {, 279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894 (1929), involved the
longstanding practice of Presidents of using pocket vetoes to avoid Congress'
override power. }
{\i Dames & Moore V. Regan} {, 453 U.S. 654, 69 L. Ed. 2d 918, 101 S. Ct. 2972 (
1981), concerned the authority of the President to settle claims by United Stat
es nationals against Iran in the absence of explicit Congressional authorizatio
n. } {\i
McCulloch V. Maryland} {, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), involved
the power of Congress to create a national bank. } {\i Youngstown Sheet and Tub
e Co. V. Sawyer} {
, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863 (1952), in which the structural a
ccommodation argument was raised by Justice Frankfurter in dissent, implicated
the President's power to seize steel mills without authority delegated by Congr
ess.
\par
\par }\pard \qj\widctlpar\adjustright {-
End Foo
tnotes
[**73]
\par \pard \qj)fi360\sb120\widctlpar\adjustright {
In sum, in our constitutional system the judiciary is entrusted with the ultima
te responsibility for interpreting the Constitution, including the authority to
review the constitutionality of actions by the political branches of governmen
t. } {\i
See Marbury V. Madison} {
,
5 U.S. (1 Cranch) 137, 2 L. Ed. 60 [*1030] (1803). Thus, the brute historic
al fact that the executive or legislature has engaged in a practice, even for a
n extended period, cannot by itself establish the constitutionality of the prac
tice. This i
S as it must be in the constitutional scheme of things. Because the judicial b
ranch is passive, it cannot react to an assertion of power by the political bra
nches until third parties present the courts with a concrete case or controvers
y. Judicial silen
ce simply cannot be construed as judicial acquiescence.
\par } {\i 2. Judicial deference to structural accommodation is not appropriate
when individual rights are at stake} -- There is a second reason that the hi
storical practice of recess judicial appointments shou
Id not receive deference from the courts as a structural accommodation. Article
III's
protections were not only designed to protect the judiciary as an institution;
[**74] the constitutional guarantees of life tenure and undiminished compensa
tion were al
so intended to protect individuals. Justice Douglas emphasized this important
function of Article III
when he wrote, "The safeguards accorded Art. III judges were designed to protec
t litigants with unpopular or minority causes or litigants who belong to despis
ed or suspect classes." } {\i Palmore V. United States} {
, 411 U.S. 389, 412, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973) (Douglas, J., diss
enting); } {\i see also Glidden V. Zdanok} {, 370 U.S. 530, 536, 8 L. Ed. 2d 671,
82 S. Ct. 1459 (1962). Justice Douglas' point was r
ecently reinforced by our court, when we observed:
\par Separation of powers protections, in some cases, have two components. One
axis reaches to the person affected by government action and encompasses his o
r her relation to a constitutional branch; the othe
r axis runs from each governmental branch to the others to insure separation an
d independence in the constitutional structure.
\par
\par } \pard \qj\widctlpar\adjustright {
\par } {\i Pacemaker Diagnostic Clinic of America V. Instromedix} {, 725 F.2d 53
7, 541 (9th Cir. 1984) (en banc). In } {\i Pacemaker} {, we concluded that, subj
ect to limited exceptions, the federal litigant has a [**75] personal right to
demand Article III
adjudication. } {\i See Pacemaker} {, 725 F.2d at 541.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {\i Pacemaker} { upheld the co
nstitutionality of the Magistrates Act, which authorized adjudication by magist
rates without Article III protections but with the consent of the parties. } {\
i Id.} {
at 542. We also noted in } {\i Pacemaker} { that the Supreme Court had expounded
on the existence of other limited exceptions to Article III in } {\i Marathon} {
, but none of those exceptions applies here. } {\i Id.} {
at 541. n13 Moreover, we expressly negated any implication that our decision i
n } {\i Pacemaker} { reached criminal cases. } {\i Id.} { In cases involving a cri
minal defendant, Article III protections should be most zealously observed beca
use individ
ual liberty is directly at stake. Today's decision represents the first time a
ny court other than the Second Circuit in } {\i United States V. Allocco} {, 305
F.2d 704 (2d Cir. 1962), has sanctioned the adjudication of a criminal case in
an Article III
court by a judge without Article III protections.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par \pard \qj\fi360\sb120\widctlpar\adjustright {n13 } {\i Northern Pipeline C
o. v. Marathon Pipe Line Co.} {, 458 U.S. 50, 73 L. Ed. 2d 598, 102 S. Ct. 2858
(1981), established the
general principle that parties to a case or controversy in a federal forum are
entitled to have the cause determined by judges with the salary and tenure guar
antees of Article 111. The } {\i Marathon} {
Court cataloged three limited exceptions to that general principle: territoria
I courts, military tribunals, and "public rights" cases. 458 U.S. at 64-70. } {
\i See also} { Note, } {\i Historical Practice} {, at 1758.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**76]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {In sum, whatever role a pro
cess of structural accommodation may have to play in adjusting the relationship
between the political branches, it is clear that judicial silence in the face
of action by the executive or legislative branches cannot be construed as a wai
ver of the constit
u
tional rights of individuals. n14 Our system affords each individual [*1031]
litigant the opportunity to vindicate his or her personal rights through the ju
dicial process. The political branches cannot extinguish such rights by establ
ishing "adverse po
ssession" through longstanding historical practice.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj)fi360\sb120\widctlpar\adjustright {n14 The Columbia Note argues
that the personal rights component of Article III is secondary to its structur
al component. Note, } {\i Historical Practice} {
, at 1788-90. The Note acknowledges this court's decision in } {\i Pacemaker, i
d.} { at 1788 & n. 174, but argues that the fact that a litigant can raise the la
ck of Article III judicial power for the first time on appeal and the fact that
a
court may raise the issue sua sponte are evidence that a jurisdictional and no
t a personal claim is involved. This argument is clearly fallacious. The fact
that a claim of lack of Article III
power shares some characteristics with jurisdictional claims does not demonstra
te that it does not share other characteristics with personal claims. For exam
ple, in } {\i Pacemaker} {
our court relied on individual consent to validate the Magistrates Act, but wa
ivability is a characteristic of personal rights and not jurisdictional require
ments. } {\i Pacemaker} {
makes the law in this circuit clear: a claim that an adjudication made in viol
ation of the salary and tenure provisions of Article III is both a personal cla
im and a jurisdictional one.
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**77]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {In cases where individual ri
ghts are at stake, the Supreme Court has not hesitated to affirm fundamental co
nstitutional principles and vindicate those rights even in the face of an intim
idating historic
al practice. One of the most renowned such cases is } {\i Brown V. Board of Edu
cation} {, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954). n15
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright. {n15 Another individual liber
ties case involving a clash between historical practice and constitutional valu
es is } {\i Bridges V. California} {, 314 U.S. 252, 86 L. Ed. 192, 62 S. Ct. 190
(1941). } {\i Bridges} {
also resembles the case we decide today because the Court was similarly faced
with a conflict between two provisions of the Constitution. In } {\i Bridges} {
the Court confronted the apparent conflict between a state's interest in assur
ing criminal defendants a fair and impartial trial as supported by the Sixth Am
endment and the First Amendment's guarantee of
freedom of the press. A California trial court had punished as contempt the pu
blication of a newspaper editorial and a telegram criticizing its proceedings i
n labor dispute. As Justice Black wrote, "If the inference of conflict
b
e correct, the iss
ue before us is of the very gravest moment. For free speech and fair trials are
two of the most cherished policies of our civilization, and it would be a tryi
ng task to choose between them." } {\i Id.} { at 260.
\par The approach of today's majority to the resolution of
such a conflict deference to historical practice was suggested by Justic
e Frankfurter in his dissent. He believed that the case could be resolved by r
ecourse to "the uninterrupted course of constitutional history
} {\i Id
.}{
at 279 (Frankfurter J.
, dissenting). Justice Frankfurter traced the authority of the courts to impose
prior restraints on the press through the contempt power back to the common la
W which "was written into the Judiciary Act of 1789 by Oliver Ellsworth,
one of the framers
of the Constitution." } {\i Id.} { at 285. The } {\i Bridges} { majority rejected
this contention, focusing on the values the framers were attempting to realize
in the First Amendment freedom of speech and of the press. } {\i Id.} {
at 264-65. While never explicitly resolving the p
otential conflict between free press and fair trial, the Court found that the e
xtrajudicial statement did not represent "a clear and present danger" of interf
erence with the administration of justice, and hence found the imposition of co
ntempt to violate
the First Amendment. } {\i Id.} { at 272-73.
\par
\par \pard qj\widctlpar\adjustright
End Foo
tnotes-
[**78]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {In } {\i Brown} {, the Supreme
Court overturned the hoary historical practice of segregation, long rationaliz
ed by courts under the "separate but equal" doctrine. The } {\i Brown} {
Court faced a practice that not only had "been inextricably woven into the fab
ric of our nation," in the words of today's majority, but had received the impr
imatur of the Supreme Court itself. } {\i See Plessy V. Ferguson} {, 163
U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). Racial segregation began at a
time when the drafters of the Fourteenth Amendment were still alive; indeed the
same Congress that authored the Fourteenth Amendment segregated the schools in
the District of C
olumbia. } {\i See} { R. Berger, } {\i Government by Judiciary} { 117-33 (1977).
But the Supreme Court in } {\i Brown} {
was not daunted by the undisputed fact that the historical practice of raciall
y segregating schools had been accepted as consistent with the Constitution for
generations. The } {\i Brown} {
Court realized that constitutional tradition demands that the courts look beyo
nd the fact of historical acceptance when a practice is challenged as unconstit
utional. Our constitutional heritage requires courts to look to the values an
d principles that [**79] breathe life and meaning into the words of the Consti
tution. When those principles demanded that segregation be struck down as inco
nsistent with the constitutional mandate of equal protection of the laws, the }
{\i Brown} {
Court did not hesitate to vindicate the Constitution, despite a formidable com
bination of historical practice and longstanding precedent. As one commentator
concluded, "} {\i Brown V. Board of Education} {
[*1032] clearly demonstrates that even a long, widespread, continuous, and
{\i judicially approved} {
practice, in an area of doubtful constitutional meaning, will receive no judic
ial deference as evidence of a structural accommodation when it is alleged to h
ave resulted in a denial of individual liberties." Note, } {\i Historical Practi
ce} {, at 1783.
\par The individual rights component of Article III thus provides a second dist
inction between the historical practice of recess judicial appointment from the
historical practices considered in the majority's cases, } {\i Curtiss-Wright} {
and } {\i J. W. Hampton
}{. n16 As I have already noted, } {\i Curtiss-Wright} { and } {\i J. W. Hampton} {
both involved the constitutionality of Congressional delegation of power to th
e President. Neither case [**80] implicated individual rights.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard qj\fi360\sb120\widctlpar\adjustright {n The majority also cites
} {\i Stuart V. Laird} {, 5 U.S. (1 Cranch) 299, 2 L. Ed. 115 (1803), but as in }
{\i Curtiss-Wright} { and } {\i J. W. Hampton} {, the historical practice consider
ed in } {\i
Stuart V. Laird} { does not implicate individual constitutional rights. } {\i St
uart V. Laird} {
is a one page opinion by Justice Patterson involving the question of whether J
ustices of the Supreme Court could also serve as circuit justices, consistent W
ith the constitutional limitations of the orig
inal jurisdiction of the Supreme Court. Justice Patterson responded, "To this
objection, which is of recent date, it is sufficient to observe, that practice,
and acquiescence under it, for a period of several years, commencing with the
organization of th
e judicial system, affords an irresistable answer, and has indeed fixed the con
struction." } {\i Id. {
at 309. The practice, however, had already been eliminated by amendment of the
Judiciary Act in 1801, and Justice Patterson's final observation was, "Of cour
se, the question is at rest, and ought not now to be disturbed." } {\i Id.} {
Although Justice Patterson's terse remarks are somewhat cryptic, they surely c
annot be read to foreclose consideration of constitutional values when a longst
anding historical practice is challenged.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
[**81]
\par } \pard qj\fi360\sb120\widctlpar\adjustright {Thus, my evaluation of the e
arly historical practice of making recess judicial appointments leads me to con
clude that, while the practice offers some support for the majority's decision
that the
Recess Appointments Clause carves out an exception to Article III, the strength
of that support is quite limited. Recess appointments
are unilateral actions by the President; they lack the deliberative quality th
at gives increased weight to the early enactments of the First Congress. The o
riginal recess appointments
by President Washington were apparently made without the open debate and discu
ssion that would have "infused them with power" in the language of } {\i Marsh} {
Moreover, less weight should be given to the historical practice of recess ap
pointments
to the judiciary than was given to the historical practice of delegating power
to the President in } {\i Curtiss-Wright} { and } {\i J. W. Hampton} {
, because those cases involved "structural accommodations" between the active p
olitical branches rather than with the judiciary, the passive branch. Finally,
recess judicial appointments implicate individual as
well as institutional interests. Even when the political branches alone are i
nvolved, [**82] } {\i Chadha} {
informs us that longstanding historical practice is not decisive. Clearly, th
e historical practice of recess judicial appointments is entitled to far less W
eight than the historical practice considered in } {\i Marsh} {
; despite the age of the practice, it teaches us very little, if anything, abou
t the Framers' intentions. I see no reason why the executive's practice of usi
ng the recess appointment power to fill
judicial vacancies should be entitled to any more weight than the practice hel
d unconstitutional in } {\i Chadha} {.
\par V. CONCLUSION
\par To summarize the results of the four-part inquiry, the first two steps
a review of the text of the Constitution and the contemp
oraneous writings of the Founders offer little guidance for our decision. T
he two remaining factors constitutional values and historical practice co
me down on opposite sides of the scale, but the principles of separation of pow
ers and judicial i
ndependence that animate Article III heavily outweigh the concerns of expedienc
y and efficiency that underlie the Recess Appointments Clause. With the scales
tipped sharply in favor of Article III
by the fundamental constitutional values at stake, the historical [**83] pract
ice fails to provide enough insight into the intentions of the framers to resto
re the balance, much less tip it in favor of the Recess Appointments
Clause. In the last analysis, like Professor Hart, "I [*1033] cannot believe
that the Constitution contemplates that any Federal judge
should hold of
fice, and decide cases, with all these strings tied to him."
\par I recognize that the only other court that has considered the question we
decide today reached the same result as the majority. In } {\i United States V.
Allocco} {, 305 F.2d 704 (2d Cir. 1962), the Second Circuit also held that the
Recess Appointments
Clause carves out an exception to Article III. n17 Like today's majority, howe
ver, the Second Circuit assumed without analysis that historical practice was d
ispositive of the question.
\par
\par } \pard qj\widctlpar\adjustright {
Footn
otes-
\par } \pard qj)fi360\sb120\widctlpar\adjustright {n 17 Significantly, the } {\i
Allocco} { decision in 1962 was made without the benefit of the Supreme Court's
recent decisions in } {\i Chadha, Marsh} {, and } {\i Marathon} {
. The two student notes reach the same result as today's majority and the Secon
d Circuit in } {\i Allocco. See} { Note, } {\i Historical Practice} {; Note, } {\i
Recess Appointments} {.
\par
\par } \pard \qj\widctlpar\adjustright {
End Foo
tnotes-
[**84]
\par } pard qj\fi360\sb120\widctlpar\adjustright {The path chosen by our court
and the Second Circuit in } {\i Allocco} {
is a tempting one. Our burden would be far lighter if we could avoid the tryi
ng task of weighing constitutional values against historical practice in a stru
ggle to interpret th
e Constitution faithfully. Simple deference to historical practice is an easy
way to resolve deep conflicts.
\par Although a serious clash between historical practice and constitutional pr
inciple may be a rare occurrence, we are not without guidance from the
Supreme Court as to how we should proceed. Our enterprise today is part of a lo
ng tradition of constitutional interpretation, one that has always involved the
evaluation of both constitutional values and historical practice. In } {\i Cha
dha} {
the Court interpreted the Constitution so that its fundamental purposes would
,
be fulfilled, despite the intimidating reality of a longstanding historical pr
actice. In } {\i Marsh V. Chambers} {
, the Court deferred to a practice that reflected the Framers' carefully consid
ered assessment of its constitutionality. In } {\i Brown V. Board of Education}
{
, where individual rights were at stake, the Court chose fundamental constituti
onal values over a deeply rooted [**85] and intractable historical practice.
Thus, the lesson of our constitution
al history is that historical practice is but one guide to constitutional meani
ng. When a fundamental constitutional value is in conflict with historical pra
ctice, the Constitution must triumph and practice must give way to principle.
\par Today we must choose between Article III and the Recess Appointments
Clause. We must also choose between deference to the historical practice of m
any chief executives and vindication of the fundamental constitutional values o
f judicial independence and separation of powers.
These choices are not easy, but they must be made. And when we choose with r
everence for the Constitution and respect for our proud heritage of constitutio
nal interpretation, our choices are ultimately clear. The fundamental principl
e of separation of
powers must prevail over a peripheral concern for governmental efficiency, and
core constitutional values must prevail over uncritical acceptance of historic
al practice.
\par \sect } \sectd \sbknone\linex0\sectdefaultcl {\header \pard\plain \widctlpa
r\adjustright \f6\fs20 {\fs24
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\par }}
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\par \pard \qc\widctlpar\adjustright {6 of 13 DOCUMENTS
\par
\par } \pard \qc\li 1200\ri1200\widctlpar\adjustright {UNITED STATES of America,
Plaintiff-Appellee, V. Janet WOODLEY, Defendant-Appellant
\par
\par No. 82-1028
\par
\par UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
\par
\par \pard \qc\fi360\li1200\ri1200\widctlpar\adjustright {726 F.2d 1328; 1983
U.S. App. LEXIS 14686
\par
\par }\pard \qc\li1200\ri1200\widctlpar\adjustright {October 19, 1982, Argued a
nd Submitted
\par
\par December 8, 1983, Decided
\par
\par } \pard \qj\widctlpar\adjustright {SUBSEQUENT HISTORY:
\par [**1]
\par }\pard \qj\fi360\sb120\widctlpar\adjustright {As Amended March 8, 1984.
\par
\par } \pard \qj\widctlpar\adjustright {PRIOR HISTORY:
\par Appeal from the United States District Court for the District of Hawaii.
\par
\par JUDGES:
\par } \pard \qj\fi360\widctlpar\adjustright {Canby, Norris and Reinhardt, Circu
it Judges.
\par
\par } \pard \qj\widctlpar\adjustright {OPINIONBY:
\par } \pard \qj\fi360\widctlpar\adjustright {NORRIS
\par
\par }\pard \qj\widctlpar\adjustright {OPINION:
\par
\par \pard \qj\fi360\widctlpar\adjustright { [*1329] NORRIS, Circuit Judge:
\par }\pard \qj\fi360\sb120\widctlpar\adjustright {This case presents a questio
n of substantial constitutional importance: whether a person lacking the essent
ial attributes of an article III
judge -- life tenure and protection against diminution of compensation -- may n
onetheless exercise the judicial power of the United States by virtue of a rece
SS appointment made pursuant to article II,
section 2 of the Constitution. nl We are thus called upon to address the inhere
nt tension between the so-called recess appointment clause, which on its face a
pplies to vacancies in any government office, and section 1 of article III
which provides that only judges with article III protection may exercise the ju
dicial power of the United States. n2 We are required to decide, in other words
, whether the recess appointment
power of the President applies to vacancies in the judicial as well as the exe
cutive branch of government.
\par
\par }\pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {nl The recess appointment cl
ause provides:
\par
\par }\pard \qj\widctlpar\adjustright {The President shall have Power to fill u
p all Vacancies that may happen during the Recess of the Senate, by granting Co
mmissions which shall expire at the End of their next Session.
\par
\par
\par U.S. Const. art. II, \'a7 2. [**2]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n2 The relevant portion of a
rticle III provides:
\par
\par }\pard \qj\widctlpar\adjustright {
The Judges, both of the supreme and inferior Courts, shall hold their Offices d
uring good Behavior, and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their Continuance in Office.
\par
\par
\par U.S. Const. art. III, \'a7 1.
\par
\par
End Footnotes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {I
\par Appellant Janet Woodley was indicted on September 18, 1981, for importing,
intending to distribute, and conspiring to distribute heroin in viola
tion of title 21, sections 841(a) (1), 952(a), and 960(b) (1) of the United Sta
tes Code. Woodley filed motions to suppress evidence allegedly obtained in vio
lation of the fourth amendment. A hearing was held on Woodley's suppression mo
tions before Judge
Walter Heen on November 16, 1981. Judge Heen denied the suppression motions a
nd presided over a bench trial conducted on stipulated facts at which Woodley W
as found guilty on all three counts. n3
\par
\par }\pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {
n3 We note that the Judgment and Probation Commitment Order was issued not by J
udge Heen but by Judge Martin Pence. The government does not argue that that f
act should affect our treatment of the issues in this case. In any event,
we believe that it would not.
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**3]
\par }\pard \qj\fi360\sb120\widctlpar\adjustright {Judge Heen had been nominate
d to fill a judicial vacancy in the district of Hawaii on February 28, 1980. O
n September 25, 1980, the Sena
te Judiciary Committee began confirmation hearings on Heen's nomination. Altho
ugh testimony and hearings were complete, no vote had been taken when the Senat
e recessed on December 16, 1980. On December 31, 1980, while the Senate was st
ill in recess, Pre
S
ident Carter conferred a commission on Heen who then began to sit as a district
judge. Less than one month [*1330] later, on January 21, 1981, President Re
agan withdrew Heen's nomination. Heen continued to sit as a district judge, ho
wever, until Decem
ber 16, 1981, when the First Session of the 97th Congress ended. Thus, at the
time he ruled on Woodley's suppression motions and presided over her trial in N
ovember and December 1981, Heen sat only by virtue of his recess appointment.
During this period, he possessed neither life tenure nor guaranteed compensati
on -- the essential attributes of an article III judge. On appeal this court r
aised sua sponte the question whether this fact rendered Heen's appointment, an
d hence all
recess appointments to the judiciary, constitutionally infirm. [**4]
\par Strong arguments can be marshaled both for and against application of the
recess appointment clause to the judiciary. On the one hand, if the recess app
ointment clause applies to judicial vacancies, a person may
exercise the judicial power without the institutional protections of article II
I that the Framers considered essential to judicial independence. A judge rece
iving his commission under the recess appointment
clause may be called upon to make politically ch
arged decisions while his nomination awaits approval by popularly elected offic
ials. Such a judge will scarcely be oblivious to the effect his decision may h
ave on the vote of these officials. Professor Freund aptly summarized the prob
lem when he referr
ed to the recess appointee as a judge sitting "with one eye over his shoulder o
n Congress." Harvard Law School Record, October 8, 1953, at 1.
\par Questions of governmental efficiency must, however, also be considered. A
pplication of the recess appointment
clause to the judiciary arguably ensures that the nation's judicial business i
S not delayed because of lengthy vacancies in judicial office. In this case, f
or example, two and one-half years passed before a judge enjoying [**5] the pr
otections of
article III filled the vacancy temporarily occupied by Judge Heen. A mechanism
by which judicial offices may be filled within a reasonable time is obviously
of great practical value in assuring the continued smooth operation of the cour
ts.
\par II
\par In resolving the conflict between article II and article III
we look to the language of the Constitution viewed in light of accepted princip
les of statutory construction, to the history of both articles, and to the Supr
eme Court decisions interpreting them. Despite long historical practice to the
contrary, } {\i
see infra} { at slip op. at 5737, hhh, these considerations persuade us that
only those judges enjoying article III protections may exercise the judicial po
wer of the United States.
\par A
\par Under familiar principles of statutory construction, the very specific lan
guage of article III would, absent a countervailing reason, prevail over the ge
neral language of article II. } {\i See Busic V. United States} {
, 446 U.S. 398, 406, 100 S. Ct. 1747, 1752, 64 L. Ed. 2d 381 (1980); } {\i Preis
er V. Rodriguez} {, 411 U.S. 475, 489-90, 93 S. Ct. 1827, 1836-37, 36 L. Ed. 2d
439 (1973). Article III
states explicitly [**6] and unambiguously that the judicial power is to be exe
rcised by those holding "their Offices during good Behavior and
at stated
Time
S, receiv[ing] for their Services, a Compensation, which shall not be diminishe
d during their Continuance in Office." U.S. Const. art. III, \'a7 1. This lan
guage is unusually specific. As Justice Frankfurter noted,
\par
\par } \pard \qj\widctlpar\adjustright {no provisions of the Constitution, barr
ing only those that draw on arithmetic, as in prescribing the qualifying age fo
r a President and members of Congress or the length of tenure of office, are mo
re explicit and specific than those pertaining to courts established under Arti
cle III.
"The judi
cial power" which is "vested" in these tribunals and the safeguards under which
their judges function are enumerated with particularity. Their tenure and com
pensation, the controversies which may be brought before them, and the distribu
tion of original a
nd appellate jurisdiction among these tribunals are defined and circumscribed,
not left at [*1331] large by vague and elastic phrasing. The precision which
characterized these portions of Article III
is in striking contrast to the imprecision of so many other provisions of the C
onstitution. [**7]
...
\par
\par
\par } {\i National Mutual Insurance Co. V. Tidewater Transfer Co., Inc.} {, 337
U.S. 582, 646, 69 S. Ct. 1173, 1209, 93 L. Ed. 1556 (1949) (Frankfurter, J., d
issenting).
\par \pard \qj\fi360\sb120\widctlpar\adjustright {We cannot disregard such an
explicit constitutional requirement, for
\par
\par \pard \qj\widctlpar\adjustright {when the Constitution gives strict
definition of power or specific limitations upon it we cannot extend the defin
ition or remove the translation. Precisely because "it is a } {\i constitution}
{ we are expounding," }
{\i M'Culloch V. Maryland} {, 17 U.S. 316, 4 Wheat. 316, 407 [4 L. Ed. 579], we
ought not to take liberties with it.
\par
\par
\par } {\i Id.} { at 646-47, 69 S. Ct. at 1196. Only an even more explicit const
itutional provision could justify disregard of article III's command that the j
udicial power shall be exercised only by those enjoying article III protection.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {The recess appointment claus
e is not such a constitutional provision. The clause does not mention the judi
cial branch at all. It is phrased in the most general language, stating only t
hat its provisions apply to "all vacancies that may happen during the recess of
the Senate," U.S. Const. art. II, \'a7 2, cl. 3. This language appears insuf
ficient [**8] to overcome the explicit command of article III.
\par B
\par Second, a careful examination of the records and writings of the constitut
ional period leads us to conclude that the Framers did not intend to allow the
housekeeping provisions of the recess appointment
clause to impinge on their paramount concern for judicial independence.
\par The experienc
e of the Framers with the colonial judiciary had not been a happy one. Prior t
o the Glorious Revolution of 1688, English judges had been "lions under the thr
one," creatures of the King. The Act of Settlement of 1701 had remedied this S
ituation in Englan
d
by granting English judges life tenure and undiminishable compensation. But t
he Act had no effect in the colonies. In their lack of independence from the E
xecutive, the colonial judiciaries remained similar to those of the England of
Charles I. Courts
were constituted by the colonial governors under authority of the crown. Any
attempt by the governors or the colonial assemblies to free judges from royal c
ontrol was rapidly quashed. E. Russell, } {\i Review of Colonial Legislation} {
189 (1915). Colonial history is replete with examples of royal abuse of judic
ial power. Judges who did not follow [**9] the wishes of the King or royal gov
ernor were summarily discharged. } {\i See} { Pittman, } {\i
The Emancipated Judiciary in America: Its Colonial and Constitutional History} {
, 37 A.B.A.J. 485, 488 & n. 5 (1951) (citing 6 {\i North Carolina Colonial Rec
ords} { 591; 9 } {\i New Jersey Archives} 321; {\i New York Colonial Document
s} { 476; 11 } {\i
Board of Trade Journal} { 229-233). The signers of the Declaration of Independe
nce charged that the King
\par
\par } \pard \qj\widctlpar\adjustright {obst
ructed the administration of justice by refusing his assent to laws for establi
shing judiciary power. He has made judges dependent on his will alone for the
tenure of their office and the amount and payment of their salaries.
\par
\par
\par The Declaration of Independence para. 13 (U.S. 1776).
\par \pard \qj\fi360\sb120\widctlpar\adjustright {In reaction to the excesses
of the colonial courts, the Framers emphasized strongly and repeatedly the need
for an independent judiciary. Hamilton, for instance, stated:
\par
\par } \pard \qj\widctlpar\adjustright {[1] agree that "there is no liberty, if
the power of j
udging be not separated from the legislative and executive powers." And it prov
es, in the last place, that as liberty can have nothing to fear from the judici
ary alone, but would have every thing to fear from [**10] its union with eithe
r of the other dep
a
rtments; that as all the effects of such an union must ensue from a dependence
of the former on the latter, notwithstanding a nominal and apparent separation;
that as from the natural feebleness of the judiciary, it is in continual jeopa
rdy of being overp
o
wered, awed or influenced by its coordinate branches; [*1332] and that as not
hing can contribute so much to its firmness and independence, as permanency in
office, this quality may therefore be justly regarded as an indispensable ingre
dient in its const
itution; and in a great measure as the citadel of the public justice and the pu
blic security.
\par \pard \qj\fi360\sb120\widct|par\adjustright {The complete independence of
the courts of justice is peculiarly essential in a limited Constitution.
\par
\par }\pard \qj\widctlpar\adjustright {
\par The Federalist No. 78, at 523-24 (A. Hamilton) (J.E. Cooke ed. 1961). To
translate their concern for judicial independence into practice, the Framers in
cluded in article III
the requirement that federal judges have life tenure and undiminishable compens
ation. The Framers recognized that these protections had freed the English jud
ges from royal control. Pittman, } {\i supra} {
, at 485. The Framers similarly sought to make the federal judges [**11] serv
ants not of the Executive but only of their consciences.
\par } \pard \qj\fi360\sb120\widctlparadjustright {Yet the Framers also recogni
zed, in adopting the recess appointment clause, the need to ensure the continue
d functioning of government when vacancies in office occurred. Article II,
section 2 was thus adopted as a housekeeping measure. It provided that the P
resident could fill vacancies in government that occurred during a recess of th
e Senate by granting a temporary commission which would expire at the end of th
e next Senate session.
\par The Framers, however, apparently never explicitly addressed the question W
hether the recess appointment
clause applied to the judicial branch. The clause was proposed just ten days
before the end of the Constitutional Convention and adopted without debate. 2 F
arrand, } {\i Records of the Constitutional Convention} {, 540 (1937); C. Rossite
r, } {\i
1787: The Grand Convention} { 224 (1966). There is no evidence in any of the ex
tant records of the Constitutional Convention or of the various state conventio
ns that the Framers intended the recess appointment clause to apply to the judi
ciary. } {\i See} {
Farrand, } {\i supra} {; J. Strayer, } {\i The Delegate from New York} { (1939) (C
onstitutional Convention Notes [**12] of John Lansing, Jr.); James H. Hutson,
"John Dickinson at the Federal Constitutional Convention," 40 } {\i William and
Mary Quarterly} {
256 (1983); J. Elliot, } {\i The Debates in the Several State Conventions on th
e Adoption of the Federal Constitution} {
,
5 vols. (1901). In fact, research into the origins of the clause has uncover
ed only sparse evidence that the Framers gave any thought to it at all.
\par The government argues, however, that at least two sources, } {\i The Federa
list} {
and a letter written after the Constitutional Convention by Edmund Randolph, t
he governor of Virginia, indicate clearly that the Framers intended that the Pr
esident's power under the recess appointment
clause extend to the judiciary. The government cites } {\i The Federalist} {, N
os. 67 and 76, for "Hamilton's view" that "this latter 'auxiliary method of app
ointment' relates to 'all vacancies' in offices described in article II's
general appointments clause and is 'nothing more than a supplement to the other
" The } {\i Federalist} {
, No. 67, however, does not concern the judiciary at all. Rather, Hamilton in
No. 67 refuted those Anti-federalists who sought to discredit the Constitution
with the claim that the recess [**13] appointment
clause enabled the President to make interim appointments to the Senate. } {\i
SEE} { J. Story, 3 } {\i Commentaries on the Constitution of the United States} {
410 (1833). Hamilton argues only that the scope of the recess appointment clau
se does not e
xtend beyond the parameters delineated in the clause immediately preceding. He
nowhere discusses the different question whether recess appointments may be ma
de to every office mentioned in that clause.
\par In fact, there is no consideration given in any of } {\i The Federalist} { p
apers to the relationship between the federal judiciary and the recess appointm
ent power of the President. The government cites } {\i The Federalist} {
, No. 76, despite the fact that No. 76 makes no mention of the judicial branch
of government or of the recess appointment clause, other than to quote verbatim
the clause itself. } {\i The Federalist} {
, No. 78, does indeed say that the "mode of appointing the judges
is the
same" as that "fully discussed in the two last numbers" concerned [*1333] wit
h the appointment of the other federal officers. Yet "the two last numbers" of
} {\i
The Federalist} {, Nos. 76 and 77, include no reference to the recess appointmen
t clause [**14] other than its quotation at the outset of No. 76. Hamilton's
silence on this issue lends support to the view that the Framers considered th
e
recess appointment clause a mere housekeeping measure.
\par The sole reference in the historical record to the Framers' views about th
e relationship between the federal judiciary and the recess appointment
clause comes in Edmund Randolph's letter to the Virginia House of Delegates ex
plaining his reasons for declining to add his signature to the proposed Constit
ution transmitted to the states by the Constitutional Convention. 3 Farrand, }{
\i supra} {
, at 123, 127. In that letter, Randolph argues that the Constitution had creat
ed an excessively powerful Executive, citing as partial evidence for this view
his belief that the recess appointment
clause gave the President the power of conferring judicial commissions during
the recess of the Senate. There is no evidence, however, that Randolph's comme
nts about the recess appointment
clause in this letter represented anything other than the temporary position o
fa volatile political figure whose "gyrations" regarding both the value and me
aning of the Constitution are well known to historians. } {\i See} {, J. [**15]
Main, } {\i
The Anti-Federalists: Critics of the} {} {\i Constitution, 1781-1788} { 257 (196
1). By the time of the Virginia state convention on the Constitution, Randolph
had so
far banished his earlier doubts regarding the Constitution that he had actually
become one of its "staunchest supporters." G. Bancroft, } {\i History of the Fo
rmation of the Constitution of the United States} {
427 (1885). Contrary to the impression created by his
letter, Randolph stated at the Virginia convention that the powers of the Pres
ident were in all respects carefully circumscribed: "He can do no important act
without the concurrence of the Senate." 3 Elliot, } {\i supra} {
at 201. He attacked the provisions for the appellate jurisdiction of the fed
,
eral judiciary, but he maintained that judicial independence had been adequatel
y guaranteed. } {\i Id.} {
at 205. Despite the fact that Randolph consistently highlighted the flaws in
the Constitution for the benefit of his fellow members of the Virginia state co
nvention, he never mentioned the recess appointment
clause, even on the day the clause was read aloud to the Virginia convention.
In fact, the Virginia convention did not discuss the clause at all. } {\i Id.} {
at 496, [**16]
570. As at the other state conventions, the only doubts raised at the Virginia
convention about the independence of the judiciary stemmed from the fact that
the Constitution did not prohibit augmentation of judicial salaries, not from t
he
recess appointment clause. } {\i Id.} { at 517.
\par Thus, the sparse legislative history regarding the recess appointment clau
se teaches us little about the intent of the Framers. We are certainly unpersua
ded that the available evidence indicates that the Framers envisioned that jud
ges holding temporary appointments could properly exercise article III powers.
\par The recess appointment clause was apparently modeled on a similar provisio
n in the South Carolina Constitution of 1778. C. Warren, } {\i The Making of th
e Constitution} { 530-31 (1929)
That constitution provided that South Carolina ordinaries, the equivalent of
judges, were to be chosen by a joint vote of the state House and Senate and we
re to have tenure during good behavior. S.C. Const. art. XXIV (1778). The Sou
th Carolina Consti
tution provided also that the Governor could make a recess appointment
to any vacancy in an office to be filled by vote of the state legislature. Th
e appointee would [**17] hold office until the next election to the state legi
slature. S.C. Const. art. XXVI (1778). There is evidence that the South Carol
ina
recess appointment clause was not intended to apply to judicial offices. The S
outh Carolina legislature passed legislation in 1815 authorizing the Governor t
o make temporary appointments to the office of ordinary. } {\i State V. Hutson}
{
,
12 S.C.L. (1 McCord) 240 (Const.Ct.1821). Such legislation would have been un
necessary if ordinaries had been covered by the recess appointment clause of th
e Constitution of 1778.
\par [*1334] C
\par The final reason for concluding that the recess appointment clause does no
t permit judges lacking article III protection to exercise article III power is
that Supreme Court precedent seems to mandate that result.
\par The Supreme Court has long emphasized the overriding importance of an inde
pendent judiciary. In 1920, the Court considered whether application of the fe
deral income tax to the salaries of federal judges constituted diminution of in
come. } {\i
Evans V. Gore} 253 U.S. 245, 40 S. Ct. 550, 64 L. Ed. 887 (1920). The Court,
quoting Washington, Hamilton, Marshall, and Wilson at great length, [**18] co
ncluded that "independence of action and judgment"
\par
\par \pard \qj\widctlpar\adjustright {is essential to the maintenance of the g
uaranties, limitations and pervading principles of the Constitution and to the
administration of justice without respect to persons and with equal concern for
the poor and the rich.
\par
\par
\par } {\i Id.} { at 253, 40 S. Ct. at 553. The Court stressed that, in order to
ensure the integrity of the judiciary, judges must not only be independent of
outside influence in fact, but must also be "above even the suspicion of any in
fluence." } {\i Id.} {
at 257, 40 S. Ct. at 554 (quoting Chief Justice Taney in letter to Secretary o
Treasury). Thirteen years later, in {\i O'Donoghue V. United States} {, 289
U.S. 516, 53 S. Ct. 740, 77 L. Ed. 1356 (1933), the Court stated that
\par
\par the acts of each [department should] never be controlled by, or subjected,
directly or indirectly, to, the coercive influence of either of the other depa
rtments. James Wilson, one of the framers of the Constitution and
a justice of this court, in one of his law lectures said that the independence
of each department required that its proceedings "should be free from the remo
test [**19] influence, direct or indirect, of either of the other two powers."
\par
\par
\par } {\i Id.} { at 530, 53 S. Ct. at 743. Other cases contain similar language
} {\i See, e.g., American Insurance Co. V. Canter} {, 26 U.S. (1 Pet.) 511, 54
5, 7 L. Ed. 242 (1828) (courts whose judges do not have article III
protection are "incapable of receiving" the judicial power conferred by the Con
stitution on the judicial branch of government).
\par }\pard \qj\fi360\sb120\widctlpar\adjustright {The preeminence of the const
itutional requirement that article III power may not be exercised by judges lac
king article III pro
tection has been reemphasized in two more recent cases in which the Court held
unconstitutional statutory schemes designed to promote judicial efficiency. In
} {\i Glidden Co. V. Zdanok} {
, 370 U.S. 530, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962), the question present
ed was whether Joseph Jackson, a judge of the United States Court of Customs an
d Patent Appeals, could preside over a criminal trial in a United States Distri
ct Court. Jackson sat by virtue of 28 U.S.C. \'a7
294(d) (1976) which authorizes retired judges to
sit by designation of the Chief Justice on either the courts of appeals [**20]
or the district courts. Lurk, the defendant, alleged that as a member of the
Court of Customs and Patent Appeals, Judge Jackson enjoyed only statutory assur
ance of tenure and
compensation. Thus, Lurk claimed, in being tried by such a judge he had been
"denied protection of judges with tenure and compensation guaranteed by Article
III." } {\i Id.} { at 533, 82 S. Ct. at 1464.
\par The Court held that Judge Jackson could preside over Lurk's trial because
the Court of Customs and Patent Appeals was, in fact, a court constituted under
article III whose judges enjoyed article III
protection. The opinion strongly indicates that had the Court not found that J
udge Jackson enjoyed the constitutiona
1 protections of life tenure and undiminished compensation it would have reache
d a contrary result. The Court first noted that the "necessity for an [article
III] judge is uncontested." } {\i Id.} {
at 537, 82 S. Ct. at 1466. Regardless whether Lurk's trial was conducted fairl
y, the Court held,
\par
\par } \pard \qj\widctlpar\adjustright {Article III, \'a7 1
is explicit a
nd gives the petitioners
a basis for complaint without requiring them to
point to particular instances of mistreatment in the record. [**21]
\par
\par
\par } {\i Id.} { at 533, 82 S. Ct. at 1464. The essential question, therefore,
was not whether 28 U.S.C. \'a7
294(d) provided a useful mechanism [*1335] by which to lessen the workload
of the district courts. The question, instead, was whether the members of cour
ts from which \'a7 294(d) judges were drawn enjoyed article III
protections. Thus, the Court held that only upon a determination that they did
enjoy such protections would they be allowed to exercise article III powers.
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {In } {\i Northern Pipeline Co
instruction Co. V. Marathon Pipeline Co.} {
, 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), the Court once again S
tressed the importance of judicial independence in the constitutional scheme.
That case presented a challenge to the constitutionality of the Bankruptcy Refo
r
m Act of 1978, which granted to judges without article III
protection jurisdiction over all bankruptcy matters. Bankruptcy judges were ap
pointed for fourteen year terms, could be removed by the judicial council of th
e circuit in which they sat on grounds
of "incompetence, misconduct, neglect of duty or physical or mental disability,
" and were not protected [**22] from salary diminution by Congress. } {\i Id.}
{ 102 S. Ct. at 2862. The appellees claimed that they were thus not article III
judges and could not exercise article III power. } {\i Id.} { at 2864.
\par The } {\i Marathon} { Court, in a plurality opinion by Justice Brennan, held
that Congress could not delegate article III powers to the bankruptcy courts W
ithout granting the judges of those courts article III protection. In
dissent, Justice White argued strongly that Congress, in creating the bankruptc
y courts, had created an efficient, workable system to address an increasingly
pressing problem. } {\i Id.} {
at 2894-2896. Without disputing the worthiness of Congress' goals or the effi
ciency of the system Congress had designed, the plurality stated unequivocally:
\par
\par } \pard \qj\widctlpar\adjustright {The inexorable command of [article III]
is clear and definite: The judicial power of the United States must be exercise
d by courts having the attributes prescribed in Art.
III. Those attributes are also clearly set forth:
\par
\par "The Judges, both of the supreme and inferior Courts, shall hold their Off
ices during good Behavior and shall, at stated Times, receive for their Service
s, a Compensation, which shall not [**23] be dim
inished during their Continuance in Office." Art. III, \'a7 1.
\par
\par
\par } {\i Id.} { at 2865. The plurality specifically tied its holdings to the m
andate of the Constitution that the federal courts be absolutely independent.
It noted:
\par
\par In sum, our Constitution unambiguo
usly enunciates a fundamental principle that the "judicial Power of the Unit
ed States" must be reposed in an independent Judiciary. It commands that the i
ndependence of the Judiciary be jealously guarded, and it provides clear instit
utional protection
S for that independence.
\par
\par
\par } {\i Id.} { at 2866. Because the Bankruptcy Act vested judicial power in j
udges without article III protection it violated the constitutional command tha
t such power be vested only in judges who enjoy those safeguards. Thus, } {\i M
arathon} { c
learly demonstrates that the imperatives of article III take precedence over a
statute providing an indisputably efficient solution to a pressing judicial pro
blem. } {\i See also Pacemaker Diagnostic Clinic of America, Inc. V. Instromedi
X, Inc.} {
, 712 F.2d 1305 (9th Cir. 1983), } {\i reh'g en banc granted} {, 718 F.2d 971 (9th
Cir. 1983).
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {In sum, the plain language [
**24] of the Constitution, the history of the adoption of article II and artic
le III, and decisions of the Supreme Court emphasizing in the strongest terms t
he
necessity of a judiciary independent both in fact and in appearance all demand
that we adhere strictly to the constitutional command that only those who enjo
y article III protections may exercise article III
power. The government argues, however, that the long and accepted practice of
recess appointments to article III courts has created a "historical consensus"
that judicial appointments made pursuant to the recess appointment
clause are not subject to the requirements of article III. It is to that argum
ent that we now turn.
\par IV
\par The recess appointment clause was used with some frequency to fill judicia
I vacancies during the late eighteenth and early [*1336] nineteenth centuries
By the end of 1823, five recess appointments had been made to the Supreme
Court while twenty had been made to the inferior federal courts. Chief Justic
e Rutledge not only sat on the Supreme Court by virtue of a recess commission b
ut also authored a decision of the Court before his confirmation by the Senate.
} {\i
See United States V. Peters} {, 3 U.S. (3 Dall.) 121, 1 L. Ed. 535 (1795) [**25]
(Rutledge, J.). No evidence exists that the constitutional propriety of thes
e appointments was ever questioned. This fact suggests that recess appointment
S
to the judiciary, if not contemplated or explicitly sanctioned by the Framers,
were nonetheless not considered highly objectionable by them. As one author h
as noted:
\par
\par \pard \qj\widctlpar\adjustright {During this period, when those who wrote
the Constitution were alive and active, not one dissenting voice was raised ag
ainst the practice. It would seem that the framers must have looked upon reces
S appointments
as an exceptional expedient to fill vacancies on the Court and not as a violat
ion of article III.
\par
\par
\par Note, } {\i Recess Appointments to the Supreme Court -- Constitutional But
Unwise} {? 10 Stan.L.Rev. 124, 132 (1957).
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Recess appointments were mad
e to the federal judiciary as frequently after the constitutional period as dur
ing it. In all, 283 recess appointments
were made to the federal bench six of those to the Supreme Court between
1823 and 1964. The practice, however, fell into disuse a generation ago. Jud
ge Heen's appointment in 1980 was the only recess appointment in the past twent
y years. } {\i See
}{ Appellee's Second [**26] Supplemental Brief at A1-A25.
\par Executive acceptance of the power to make recess appointments
to the judiciary is evidenced not only by frequent use of the power, but also
by some twenty four opinions of the attorneys general. That of Attorney Genera
1 Stanberry in 1868 is one of the more elaborate:
\par For it seems a greater evil to be without officers altogether, than to hav
e officers who hold only by the temporary appointment of the President. I say
by the } {\i temporary} { appointment of the President, for, in strict language,
the President can
not invest any officer with a full title to the office without the concurrence
of the Senate. Whether the President appoints in the session or in the recess,
he cannot and does not } {\i fill the office} { without the concurrence of the S
enate. He may } {
\i fill the vacancy} { in the recess, but only by an appointment which lasts unt
il the end of the next session.
\par For instance, in filling a vacancy in the office of judge, whose tenure is
in effect for life, his appointee can only hold for a fraction of time.
\par
\par }\pard \qj\widctlpar\adjustright {
\par 12 Op.Atty.Gen. 82, 41 (1868) (emphasis in original).
\par \pard \qj\fi360\sb120\widctlpar\adjustright {Congressional acceptance of
presidential power to make recess [**27] judicial appointments is equally indi
sputable. The statute authorizing the payment of recess appointees to all offi
ces makes no e
xception for judges, and Senator Philip Hart, in support of a resolution reques
ting the President to use his recess appointment power sparingly in filling jud
icial vacancies, noted that
\par
\par \pard \qj\widctlpar\adjustright {if there ever was ground for the argumen
t that the more specific language of Article III of the Constitution would be c
onstrued as excluding judiciary appointments from the general authorization giv
en the President in
Article II, time has answered it. The President does have that power and this
Resolution does not argue otherwise.
\par
\par
\par 106 Cong.Rec. 18,130 (1960).
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {Thus, both Congress and the
Executive have long accepted the power of the President to make recess appointm
ents
to the federal bench. But while the members of both the legislative and execu
tive branches are sworn to uphold the Constitution, the courts alone are the fi
nal arbiters of its meaning. } {\i United States V. Nixon} {
, 418 U.S. 683, 703, 94 S. Ct. 3090, 3105, 41 L. Ed. 2d 1039 (1974); } {\i Marbu
ry V. Madison} {, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). The questio
n [**28] before us, then, is what weight to attach to these legislative and ex
ecutive interpretations of the scope of [*1337] presidential power to make re
cess appointments.
\par Early Supreme Court authority suggested that great weight was to be given
to historical practice. In } {\i Stuart V. Laird} {
, 5 U.S. (1 Cranch) 299, 2 L. Ed. 115 (1803), the Court considered the question
whether judges of the Supreme Court could sit as circuit judges without having
a separate commission to sit on the circuit court. The Court held that
\par
\par } \pard \qj\widctlpar\adjustright {
practice, and acquiescence under it, for a period of several years, commencing
with the organization of the judicial system, affords an irresistible answer, a
nd has indeed fixed the construction. It is a contemporary interpretation of t
he
most forcible nature. This practical exposition is too strong and obstinate to
be shaken or controlled. Of course, the question is at rest, and ought not no
W to be disturbed.
\par
\par
\par } {\i Id.} { at 308.
\par \pard \qj\fi360\sb120\widctlpar\adjustright {The view that a long and con
tinuous practice is entitled to a
presumption of constitutionality gained further currency in the early part of t
his century. Several Supreme Court cases during this [**29] period considered
historical practice in resolving constitutional questions. n4 The Court best e
nunciated the theo
ry of these decisions in } {\i United States V. Midwest Oil Co.} {, 236 U.S. 459,
472-73, 35 S. Ct. 309, 312-13, 59 L. Ed. 673 (1915), stating that
\par
\par }\pard \qj\widctlpar\adjustright {government is a practical affair intende
d for practical men. Both officers, lawmakers and citizens naturally adjust
themselves to any long-continued action of the Executive Department on the pre
sumption that unauthorized acts would not have been allowed to be so often repe
ated as to crystallize into a regular practice.
\par
\par
\par
\par
Footnotes-
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {n4 } {\i See, e.g., Myers V.
United States} {, 272 U.S. 52, 175, 47 S. Ct. 21, 45, 71 L. Ed. 160 (1926); } {\i
Ex parte Grossman} {, 267 U.S. 87, 118, 45 S. Ct. 332, 336, 69 L. Ed. 527 (1925
); } {\i
Fairbank V. United States} {, 181 U.S. 283, 307, 21 S. Ct. 648, 657, 45 L. Ed. 8
62 (1901).
\par
\par \pard \qj\widctlpar\adjustright {
End Foo
tnotes
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {This early line of Supreme C
ourt authority, holding that unchallenged historical practice is sufficient
30] evidence of constituti
onality, no longer, however, represents the thinking of the Court. Recent Supr
eme Court discussions of the issue indicate that any practice, no matter how fu
lly accepted or efficient, is "subject to the demands of the Constitution which
defines powers an
d
sets out just how those powers are to be exercised." } {\i INS V. Chadha
}{, 462 U.S. 919, 945, 103 S. Ct. 2764, 2781, 77 L. Ed. 2d 317 (1983).
\par In } {\i INS V. Chadha} {, the Court considered the constitutionality of a S
tatute authorizing one house of Congress to in
validate by resolution a decision of an agency of the executive branch made pur
suant to congressionally delegated authority. At the time the Court decided }{
\i Chadha} {
, the practice of including a one-house veto provision in legislation had becom
e so common as to have indisputably become a practice of long and continuous ac
ceptance. As the dissent noted,
\par
\par } \pard \qj\widctlpar\adjustright {over the past five decades, the legislat
ive veto has been placed in nearly 200 statutes. The device is known in every
field of governmental concern: reorgan
ization, budgets, foreign affairs, war powers, and regulation of trade, safety,
energy, the environment and the economy. [**31]
\par
\par
\par } {\i Id.} { at 968, 103 S. Ct. at 2793 (White, J. dissenting) (footnote om
itted). Moreover, the practice of one-house vetoes, accepted as constitutional
by Presidents since World War II, } {\i id.} {
, had become a central tool of the legislative process. It was more than "effi
cient, convenient, and useful." It was "an important if not indispensable polit
ical invention that allows the Presi
dent and Congress to resolve major constitutional and policy differences, assur
es the accountability of independent regulatory agencies, and preserves Congres
s' control over lawmaking." } {\i Id.} { at 1-1-1-, 103 S. Ct. at 2795.
\par }\pard \qj)\fi360\sb120\widctlpar\adjustright {Yet, this historic acceptanc
e of the
one-house veto did not prevent the Court from holding the practice unconstituti
onal. In fact, Chief Justice Burger noted for the majority that "our inquiry i
S sharpened rather than blunted by the fact that Congressional veto provisions
are appearing [*1
338] with increasing frequency in statutes which delegate authority to executi
ve and independent agencies." } {\i Id.} { at h/h
103 S. Ct. at 2781. The Court stated that, regardless of historical practice
,
, "policy arguments supporting even useful 'political inven
tions' [**32] are subject to the demands of the Constitution which defines po
wers and, with respect to this subject, sets out just how those powers are to b
e exercised." } {\i Id.} {
\par The Court also dispensed quickly with arguments based on governmental effi
cienc
y. Claims that the one-house veto had become central in the relationship betwe
en the President and Congress would not override constitutional commands. Chie
f Justice Burger stated emphatically that
\par
\par } \pard \qj\widctlpar\adjustright {convenience and efficiency are not the p
rimary objectives or the hallmarks of democratic government.
\par } \pard qj\fi360\sb120\widctlpar\adjustright {The choices we discern as ha
ving been made in the Constitutional Convention impose burdens on governmental
processes that often seem clumsy, inefficient, even unworkable, but those hard
choices we
re consciously made by men who had lived under a form of government that permit
ted arbitrary governmental acts to go unchecked. There is no support in the Co
nstitution or decisions of this Court for the proposition that the cumbersomene
SS and delays ofte
n encountered in complying with explicit Constitutional standards may be avoide
d, either by the Congress or by the President. } {\i See Youngstown Sheet & Tub
e Co. V. Sawyer} {
, 343 U.S. 579 [72 S. Ct. 863, 96 L. Ed. 1153] [**33] (1952). With all the ob
vious flaw
S of delay, untidiness, and potential for abuse, we have not yet found a better
way to preserve freedom than by making the exercise of power subject to the ca
refully crafted restraints spelled out in the Constitution.
\par
\par } \pard \qj\widctlpar\adjustright {
\par
}
{\i
Id.}
{
at
103 S. Ct. at 2780, 2788.
,
,
\par } \pard qj\fi360\sb120\widctlpar\adjustright {The teaching of } {\i Chadha}
{ is clear. Historical acceptance and governmental efficiency are not unimport
ant. They will not, however, "save [a practice] if it is contrary to the Const
itution." } {\i Id.} {
at 944, 103 S. Ct. at 2781. It is undisputed that the practice of recess appoi
ntments
to the judiciary is widely accepted and may, in some situations, contribute to
judicial efficiency. Such appointments, however, offend the explicit and unam
biguous command of article III that the judicial power be exercised
only by those enjoying life tenure and protection against diminution of compen
sation. A practice condemned by the Constitution cannot be saved by historical
acceptance and present convenience. n5 We therefore [*1339] hold that becaus
e he lacks the ess
ential attributes of an article III judge, a recess appointee to the federal [*
*34] bench cannot exercise the judicial power of the United States.
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes-
\par } \pard j\fi360\sb120\widctlpar\adjustright {n5 The government argues tha
t the recent decision of the Supreme Court in } {\i Marsh V. Chambers} {
, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), dictates that we acc
ord controlling weight to the fact that recess appointments to the judiciary we
re made during the early constitutional period. We disagree.
\par In } {\i Marsh} {, the Court was faced with the question whether the practic
e of the Nebraska legislature of opening each of its sessions with a prayer off
ered by a state-paid chaplain violated the establishment clause. In holding th
at
legislative prayer does not offend the first amendment, the Court relied on a
uniquely full historical record indicating that the practice was extensively co
nsidered and approved by the Founding Fathers. We have no such record in this
case.
\par The first le
gislative chaplain was appointed during the first Congress. Indeed, three days
before final agreement was reached on the language of the Bill of Rights, Cong
ress enacted legislation providing for the appointment of a chaplain. That legi
slation was not ad
o
pted lightly. An extensive debate took place in Congress. The bill to appoint
chaplains drew opposition from both John Jay and John Rutledge on the ground t
hat the delegates "were so divided in religious sentiments
that
[they]
co
uld not join in th
e same act of worship." } {\i Id.} { 103 S. Ct. at 3335. The Court in } {\i Marsh}
{ cited this record of debate and opposition as evidence that the "subject was
considered carefully and the action not taken thoughtlessly." } {\i Id.} {
The relationship between the first amendment and the practice of legislative p
rayer in the thought of the first amendment draftsmen was thus fully illuminate
d in the record before the Court in } {\i Marsh} {.
\par In striking contrast, there is no evidence that the Framers ever considere
d the question whether the recess appointment
clause applied to judicial appointments. The clause was adopted without debate
, and the provision of the South Carolina constitution upon which it was modele
d did not apply to judicial vacancies. In } {\i Marsh} {, the Court states that i
t "accept
[s] the interpretation of the First Amendment draftsmen" regarding the practice
of legislative prayer and the establishment clause. } {\i Id.} {
We have no comparable record of explicit interpretation and debate before us.
Mute acquiescence is clearly distinguishable from the affirmative contemporane
ous construction of the first amendment available to the Court in } {\i Marsh} {.
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes
[**35]
\par } \pard qj\fi360\sb120\widctlpar\adjustright {We recognize that the only o
ther court to consider the question we decide today reached a result contrary t
o ours. In } {\i United States V. Allocco} {
, 305 F.2d 704 (2d Cir. 1962), the Second Circuit held that article III does no
t require the exclusion of judicial offices from the scope of the recess appoin
tment clau
se. It based this conclusion in part on historical practice and in part on the
need for governmental efficiency. } {\i Id.} { at 708-709. But } {\i INS V. Chad
ha} {, U.S. at , 103 S. Ct. at 2780, decided over two decades after } {\i Al
locco} {
, makes it clear that even consistent acceptance of a practice over many years
will not suffice to render an unconstitutional action constitutional. In addit
ion, other recent Supreme Court cases demonstrate that the article III
requirement of judicial independence outweighs arguments made in the name of ef
ficiency. } {\i See Northern Pipeline Construction Co. V. Marathon Pipeline Co.
}{, 102 S. Ct. at 2865-2866; } {\i Glidden Co. V. Zdanok} {, 370 U.S. at 533, 82
S. Ct. at 1463.
\par We believe the } {\i Allocco} { decision also reflects a misapplication of a
ccepted principles of statutory [**36] and constitutional construction. The S
econd Circuit's opinion implies that the general language of the recess appoint
ment
clause takes precedence over the specific language of article III. } {\i Unite
d States V. Allocco} {, 305 F.2d at 708. Precedent is to the contrary. The unus
ually specific language of article III must supersede the general language of t
he
article II recess appointment clause, which does not mention the judicial offic
e at all. } {\i See supra} { slip op. at 5732-33, at\~
\par Finally, } {\i Allocco} { rests on an overly limited view of the historical
record. The Second Circuit commented that "the evils of legislative and execut
ive coercion which petitioner foresees have no support in our nation's history.
} {\i
United States V. Allocco} {, 305 F.2d at 709. In fact, the Framers themselves we
re profoundly influenced by the sorry history of a colonial judiciary which lac
ked the most basic requisites of judicial independence. The Frame
rs based their judgments regarding the protections required in article III on t
he experience of the colonies and of England. It is precisely because of their
command in article III
that the "coercion" which the Second Circuit [**37] finds absent in more recen
t history has generally not troubled the federal judiciary. } {\i See supra} { sl
ip op. at 5733, ath
\par Thus, we reject the holding of } {\i Allocco} { and find that a recess appoi
ntee to the federal bench cannot exercise the judicial power of the United Stat
es. n6
\par
\par } \pard \qj\widctlpar\adjustright {
Footn
otes
\par } \pard \qj)\fi360\sb120\widctlpar\adjustright {n6 The issue of whether our
holding should be applied retroactively or merely prospectively is not properly
before us and should not be decided today. We leave that issue for another day
} {\i
See, e.g., Michigan V. Payne} {, 412 U.S. 47, 93 S. Ct. 1966, 36 L. Ed. 2d 736 (
1973) (determining whether or not to give retroactive effect to a rule formulat
ed in an earlier decision); } {\i Robinson V. Neil} {, 409 U.S. 505, 93 S. Ct. 87
6, 35 L. Ed. 2d
29 (1973) (same); } {\i Stovall V. Denno} {, 388 U.S. 293, 87 S. Ct. 1967, 18 L.
Ed. 2d 1199 (1967) (same); } {\i Tehan V. Shott} {, 382 U.S. 406, 86 S. Ct. 459,
15 L. Ed. 2d 453 (1965) (same); } {\i Johnson V. New Jersey} {
384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) (same); } {\i Linkletter
,
V. Walker} {, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1964) (same).
\par
\par }\pard \qj\widctlpar\adjustright {
End Foo
tnotes-
[**38]
\par } \pard \qj\fi360\sb120\widctlpar\adjustright {The conviction is VACATED an
d the case remanded to the United States District Court for the District of Haw
aii.
\par \sect } \sectd \sbknone\linex0\sectdefaultcl {\header \pard\plain \widctlpa
r\adjustright \f6\fs20 {\fs24
\par } }\pard\plain \widctlpar\adjustright \f6\fs20 {
\par }}
END ATTACHMENT 2
ATTACHMENT 3
ATT CREATION TIME/DATE: 0 00:00:00.00
TEXT:
Unable to convert NARMS201:[ATTACH.D8JARMS22000FBDK.003 td ASCII,
The following is a HEX DUMP:
END ATTACHMENT 3
October 20, 2000
The Honorable Carolyn Miller Parr
United States Tax Court
400 Second Street, NW
Washington, DC 20217
Dear Judge Parr,
On behalf of the President, I would like to thank you for your many years of service to
the country as a United States Tax Court Judge. Your commitment to public service is to be
commended.
Your 15-year term expires November 25, 2000. Given the late date and the fact that
Congress will soon go on recess, please be advised that President Clinton will not be in a
position to re-nominate you before he leaves office.
On behalf of the President, I wish you the very best in the years to come.
Sincerely yours,
Beth Nolan
Counsel to the President
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CREATOR: lee vermillion <[email protected]> ( lee vermillion <[email protected]> [ UNKNOWN ])
CREATION DATE/TIME: 1-NOV-2000 14:43:45.00
SUBJECT: Fwd: FW: [Fwd: GI JOE]
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Note: forwarded message attached.
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AND TYPE
001. email
From Lee Vermillion to Many Recipients Re: Fwd: FW: [Fwd: GI
11/01/2000
b(7)(C), b(7)(F), b(6)
JOE] [partial] (1 page)
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From: Lee Vermillion <[email protected]>
Subject: FW: [Fwd: GI JOE]
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Original Message
> From: Ashley Vermillion [SMTP:[email protected]]
> Sent: Wednesday, November 01, 2000 1:11 PM
> To: [email protected]; [email protected];
[email protected];
>
(b)(6),(b)(7)c, (b)(7)f
> Subject:
[Fwd: GI JOE]
[001]
>
>
>
>
>
>
> >You might find this of interest.
»»
»»»
>>>> Oct. 26 falls on a Thursday this year.
>>>> Ask the significance of the date, and you're likely to draw some
> puzzled
»»» looks-five more days to stock up for Halloween?
»»»
»»» It's a measure of men like Col. Mitchell Paige that they wouldn't
> have
>>>> had it any other way. What they did 58 years ago, they did
> precisely so
»»» their grandchildren could live in a land of peace and plenty.
>>>>
>>>> Whether we've properly safeguarded the freedoms such men fought to
> leave
>>>> us, may be a discussion better left for another day. Today we
> struggle
>>>to
>>>> envision-or remember-how the world must have looked on Oct. 26,
>>>> 1942.
>>>>
>>>>A few thousand lonely American Marines had been put ashore on
>>>> Guadalcanal, a god-forsaken jungle island which just happened to
lie
>>> like
>>>a
>>>> speed bump at the end of the long blue-water slot between New
Guinea
> and
>>> the
>>>>
>>>> Bismarck Archipelago-the very route the Japanese Navy would have to
> take
>> > to
»»» reach Australia.
»»»
»»» World War II is generally calculated from Hitler's invasion of
> Poland in
>>>> 1939. But that's a eurocentric view. The Japanese had been
> limbering
>>>> up in Korea and Manchuria as early as 1931, and in China by 1934.
> By
>>> late
>>>> 1942 they'd devastated every major Pacific military force or
> stronghold
>>> of
>>>> the great pre-war powers: Britain, Holland, France, and the United
»» States.
»»» The bulk of America's proud Pacific fleet lay beached or rusting on
> the
»»» floor of Pearl Harbor.
»»»
»»» As Mitchell Paige-then a platoon sergeant-and his rifle platoon of
>>>> > 30-odd men were sent out to establish a last, thin, defensive line
> on a
>>>> ridge line southwest of the tiny American bridgehead at Henderson
> Field
>>>on
>>>> Guadalcanal on Oct. 25, it's unlikely anyone thought they'd
finally
»»» provide a definitive answer to the question: How many able-bodied
> U.S.
>>>> Marines
»»» does it take to hold a hill against 2,000 desperate and motivated
»» attackers?
>>>>
>>>> The Japanese Army had not failed in an attempt to seize any major
»»» objective since the Russo-Japanese War of 1895. But in preceding
> days,
>>>> Marine commander Vandegrift had defied War College doctrine,
> "dangling"
>>>his
>>>> men in exposed positions to draw Japanese attacks, then springing
> his
»» traps
>>>> "with the steel vise of firepower and artillery," in the words of
> Naval
»»» historian David Lippman.
>>>>
>>>> The Japanese regiments had been chewed up. Still, American
> commanders
>>>> had so little to work with that Paige's men had only four
30-caliber
>>>> Browning
»»» machine guns on the one ridge through which the Japanese opted to
> launch
>>>> their final assault against Henderson Field, that fateful night of
> Oct.
>>>26.
>>>>
>>>> By the time the night was over, there were 98 Japanese dead on the
> hill
>>>> and 200 more sprawled in the gully just below, historian Lippman
»» reports.
>>>> "The American estimate of 2,200 Japanese dead is probably too low."
»»»
>>>> Among the 90 American dead and wounded that night were all the men
> in
>>>> Mitchell Paige's platoon. Every one. As the night wore on, Paige
> moved
»»» up and down his line, pulling his dead and wounded comrades back
> into
>>> their
>>>> foxholes and firing a few bursts from each of the four Brownings in
>>>> turn, convincing the Japanese forces down the hill that the
> positions
>>> were
>>>> still manned.
>>>>
>>>> The citation for Paige's Congressional Medal of Honor adds: "When
> the
>>>> enemy broke through the line directly in front of his position,
> P/Sgt.
>>>> Paige, commanding a machine gun section with fearless
determination,
>>>> continued to direct the fire of his gunners until all his men were
>>>> either killed or wounded. Alone, against the deadly hail of
> Japanese
>>>> shells,
>>>> he fought with his gun and when it was destroyed, took over
another,
»» moving
>>>> from gun to gun, never ceasing his withering fire." In the end,
Sgt.
»» Paige
>>>> picked up the last of the 40-pound, belt-fed Brownings-the same
> design
>>>> which John Moses Browning famously fired for a continuous 25
minutes
>>> until
>>>>it
>>>> ran out of ammunition in its first U.S. Army trial-and walked down
> the
>>>> hill with it, firing as he went. The weapon did not fail.
>>>>
»»» Coming up at dawn, battalion executive officer Maj. Odell M.
> Conoley
>>>> first discovered the answer to our question: How many able-bodied
»» Marines
>>>> does
>>>> it take to hold a hill against 2,000 desperate and motivated
> attackers?
>>>> Mitchell Paige alone sat upright behind his 30-caliber Browning,
> waiting
»»» to see what the new dawn would offer. And that was the second
> problem.
>>> Part
»»»
>>>> of the American line had fallen to the last Japanese attack. "In
> the
»» early
>>>> morning light, the enemy could be seen a few yards off, and vapor
> from
>>> the
»»» barrels of their machine guns was clearly visible," reports
> historian
>>>> Lippman. "It was decided to try to rush the position."
»»»
>>>> For the task, Maj. Conoley gathered together "three enlisted
»» communication
>>>> personnel, several riflemen, a few company runners who were at the
>>>> point, together with a cook and a few messmen who had brought food
> to
>>> the
»»» position the evening before." Joined by Paige, this ad hoc force of
> 17
>>>> Marines counterattacked at 5:40 a.m., discovering that "the
> extremely
>>> short
>>>> range allowed the optimum use of grenades," and that "The element
of
>>>> surprise
»»» permitted the small force to clear the crest." And that's where the
>>>> unstoppable wave of Japanese conquest finally crested, broke, and
> began
>>>to
>>>> recede. Because of a handful of U.S. Marines, one of whom (now 82)
»» lives
>>>> out
»»»a
>>>> quiet retirement in La Quinta, Calif.
>>>>
>>>> When the Hasbro Toy Co. called up some years back, asking
> permission to
>>> put
>>>> the retired colonel's face on some kid's doll, Mitchell Paige
> thought
»» they
>>>> must be joking. But they weren't. That's his mug, on the little
> Marine
»» they
>>>>
>>>> call "GI Joe."
>>>>
>>>> And now you know. Wishing you all a peaceful Veterans Day 2000.
>>>>
»»»
>>>>
>>>>><<thomas_alexis32.vcf>> <<ATT00015.txt>>
- thomas_alexis32.vcf- ATT00015.txt
ATTACHMENT 1
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END ATTACHMENT 1
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Date: Sat, 4 Nov 2000 11:26:19 EST
From: [email protected]
Subject: AUTUMN, 1942: IT CAME DOWN TO ONE MARINE, AND ONE SHIP
To: [email protected], [email protected], [email protected],
[email protected], [email protected]
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Full-name: Kcmoneyman
>>AUTUMN, 1942: IT CAME DOWN TO ONE MARINE, AND ONE SHIP
> >by Vin Suprynowicz
»
> >Oct. 26 falls on a Thursday this year.
»
> >Ask the significance of the date, and you're likely to draw some
> >puzzled looks -- five more days to stock up for Halloween?
>>
> >It's a measure of men like Col. Mitchell Paige and Rear Adm. Willis
>>A. "Ching Chong China" Lee that they wouldn't have had it any other
> >way. What they did 58 years ago, they did precisely so their
> >grandchildren could live in a land of peace and plenty.
»
> >Whether > we've properly safeguarded the freedoms they fought to leave
> >us, may be a discussion best left for another day. Today we struggle
> >to envision -- or, for a few of us, to remember -- how the world must
> >have looked on Oct. 26, 1942. A few thousand lonely American Marines
> >had been put ashore on Guadalcanal, a god-forsaken malarial jungle
> >island which just happened to lie like a speed bump at the end of the
> >long blue-water slot between New Guinea and the Bismarck Archipelago
> >-- the very route the Japanese Navy would have to take to reach
> >Australia.
> >
> >On Guadalcanal the Marines built an air field. And Japanese commander
> >Isoroku Yamamoto immediately grasped what that meant. No effort would
> >be spared to dislodge these upstart Yanks from a position that could
> >endanger his ships during any future operations to the south. Before
> >long, relentless Japanese counterattacks had driven supporting U.S.
> >Navy from inshore waters. The Marines were on their own.
> >
» World War Two is generally calculated from Hitler's invasion of
> >Poland in 1939. But that's a eurocentric view. The Japanese had been
> >limbering up their muscles in Korea and Manchuria as early as 1931,
> >and in China by 1934. By 1942 they'd devastated every major Pacific
> >military force or stronghold of the great pre-war powers: Britain,
> >Holland, France, and the United States. The bulk of America's proud
> Pacific fleet lay beached or rusting on the floor of Pearl Harbor. A
>
>few aircraft carriers and submarines remained, though as Mitchell
> >Paige and his 30-odd men were sent out to establish their last, thin
> >defensive line on that ridge southwest of the tiny American
> >bridgehead on Guadalcanal on Oct. 25, he would not have been much
> >encouraged to know how those remaining American aircraft carriers
> >were faring offshore.
> >
> >(The next day, their Mark XV torpedoes -- carrying faulty magnetic
> >detonators reverse-engineered from a First World War German design --
> >proved so ineffective that the United States Navy couldn't even
> >scuttle the doomed and listing carrier Hornet with eight carefully
> >aimed torpedoes. Instead, our forces suffered the ignominy of leaving
> >the abandoned ship to be polished off by the enemy only after
> >Japanese commanders determined she was damaged too badly to be
> >successfully towed back to Tokyo as a trophy.)
>>
> > As Paige - then a platoon sergeant -- and his riflemen set about
> >carefully emplacing their four water-cooled Brownings, it's unlikely
> >anyone thought they were about to provide the definitive answer to
> >that most desperate of questions: How many able-bodied U.S. Marines
> >does it take to hold a hill against 2,000 desperate and motivated
> >attackers?
V V
> > The Japanese Army had not failed in an attempt to seize any major
> >objective since the Russo-Japanese War of 1905. Their commanders
> >certainly did not expect the war to be lost on some God-forsaken
> >jungle ridge manned by one thin line of Yanks in khaki in October of
> >1942.
>>
> >But in preceding days, Marine commander Vandegrift had defied War
> College doctrine, "dangling" his men in exposed positions to draw
> >Japanese attacks, then springing his traps "with the steel vise of
> >firepower and artillery," in the words of Naval historian David
> >Lippman.
> >
> The Japanese regiments had been chewed up, good. Still, the American
> >forces had so little to work with that Paige's men would have only
> >the four 30-caliber Brownings to defend the one ridge through which
> >the Japanese opted to launch their final assault against Henderson
> >Field, that fateful night of Oct. 25.
V V
> >By the time the night was over, "The 29th (Japanese) Infantry
> >Regiment has lost 553 killed or missing and 479 wounded among its
> >2,554 men," historian Lippman reports. "The 16th (Japanese)
> >Regiment's losses are uncounted, but the 164th's burial parties
> >handle 975 Japanese bodies. The American estimate of 2,200
> >Japanese dead is probably too low."
> >
> >Among the 90 American dead and wounded that night were all the men in
> >Mitchell Paige's platoon. Every one. As the night wore on, Paige
> >moved up and down his line, pulling his dead and wounded comrades
> >back into their foxholes and firing a few bursts from each of the
> >four Brownings in turn, convincing the Japanese forces down the hill
> >that the positions were still manned.
> >
> >The citation for Paige's Congressional Medal of Honor picks up the
> >tale: "When the enemy broke through the line directly in front of his
> >position, P/Sgt. Paige, commanding a machinegun section with fearless
> >determination, continued to direct the fire of his gunners until all
> >his men were either killed or wounded. Alone, against the deadly hail
> >of Japanese shells, he fought with his gun and when it was destroyed,
> >took over another, moving from gun to gun, never ceasing his
> >withering fire."
> >
> >In the end, Sgt. Paige picked up the last of the 40-pound, belt-fed
» Brownings -- the same design which John Moses Browning famously fired
> >for a continuous 25 minutes until it ran out of ammunition at its
> >first U.S. Army trial -- and did something for which the weapon was
> >never designed. Sgt. Paige walked down the hill toward the place
> >where he could hear the last Japanese survivors rallying to move
> >around his flank, the gun cradled under his arm, firing as he went.
»
> > The weapon did not fail.
> >
>>##
> >
> Coming up at dawn, battalion executive officer Major Odell M. Conoley
> >first discovered the answer to our question: How many able-bodied
» Marines does it take to hold a hill against two regiments of
> >motivated, combat-hardened infantrymen who have never known defeat?
>>
> >On a hill where the bodies were piled like cordwood, Mitchell Paige
> >alone sat upright behind his 30-caliber Browning, waiting to see what
> >the dawn would bring.
»
> >One hill: one Marine.
>>
> >But that was the second problem. Part of the American line _had_
> >fallen to the last Japanese attack. "In the early morning light, the
> >enemy could be seen a few yards off, and vapor from the barrels of
> >their machine guns was clearly visible," reports historian Lippman.
> >"It was decided to try to rush the position."
> >
>
>For the task, Major Conoley gathered together "three enlisted
> >communication personnel, several riflemen, a few company runners who
> >were at the point, together with a cook and a few messmen who had
> >brought food to the position the evening before."
> >
> >Joined by Paige, this ad hoc force of 17 Marines counterattacked at
> >5:40 a.m., discovering that "the extremely short range allowed the
> >optimum use of grenades." In the end, "The element of surprise
> >permitted the small force to clear the crest."
> >
> >And that's where the unstoppable wave of Japanese conquest finally
> >crested, broke, and began to recede. On an unnamed jungle ridge on an
> >insignificant island no one had ever heard of, called Guadalcanal.
> >Because of a handful of U.S. Marines, one of whom, now 82, lives out
>
>a quiet retirement with his wife Marilyn in La Quinta, Calif.
> >
> >But while the Marines had won their battle on land, it would be
> >meaningless unless the U.S. Navy could figure out a way to stop
> >losing night battles in "The Slot" to the northwest of the island,
> >through which the Japanese kept sending in barges filled with
> >supplies and reinforcements for their own desperate forces on
> >Guadalcanal.
> >
> > The U.S. Navy had lost so many ships in those dreaded night actions
> >that the waters off Savo were given the grisly sailor's nickname by
> >which they're still known today: Ironbottom Sound.
> >
> >So desperate did things become that finally, 18 days after Mitchell
> >Paige won his Congressional Medal of Honor on that ridge above
> >Henderson Field, Admiral Bull Halsey himself broke a stern War
V
> College edict -- the one against committing capital ships in
> >restricted waters. Gambling the future of the cut-off troops on
V
>Guadalcanal on one final roll of the dice, Halsey dispatched into the
>
> >Slot his two remaining fast battleships, the USS South Dakota and the
> >USS Washington, escorted by the only four destroyers with enough fuel
> >in their bunkers to get them there and back.
V V
V
>In command of the 28-knot battlewagons was the right man at the right
> >place, gunnery expert Rear Adm. Willis A. "Ching Chong China" Lee.
> >Lee's flag flew aboard the Washington, in turn commanded by Captain
> Glenn Davis.
> >
> >Lee was a nut for gunnery drills. "He tested every gunnery-book rule
> >with exercises," Lippman writes, "and ordered gunnery drills under
> >odd conditions -- turret firing with relief crews, anything that
> >might simulate the freakishness of battle."
»
>>##
>>
> As it turned out, the American destroyers need not have worried about
> >carrying enough fuel to get home. By 11 p.m. on Nov. 13, outnumbered
> >better than three-to-one by a massive Japanese task force driving
> >down from the northwest, every one of the four American destroyers
> >had been shot up, sunk, or set aflame, while the South Dakota --
> >known throughout the fleet as a jinx ship -- managed to damage some
> >lesser Japanese vessels but continued to be plagued with electrical
> >and fire control problems.
> >
> >"Washington was now the only intact ship left in the force," Lippman
> >writes. "In fact, at that moment Washington was the entire U.S.
> >Pacific Fleet. She was the only barrier between (Admiral) Kondo's
> >ships and Guadalcanal. If this one ship did not stop 14 Japanese
> >ships right then and there, America might lose the war.
...
> >
> >"On Washington's bridge, Lieutenant Ray Hunter still had the conn. He
> >had just heard that South Dakota had gone off the air and had seen
> >(destroyers) Walke and Preston "blow sky high." Dead ahead lay their
> >burning wreckage, while hundreds of men were swimming in the water
> >and Japanese ships were racing in.
> >
> >"Hunter had to do something. The course he took now could decide the
> >war. 'Come left,' he said, and Washington straightened out on a
> >course parallel to the one on which she (had been) steaming.
> > Washington's rudder change put the burning destroyers between her and
> >the enemy, preventing her from being silhouetted by their fires.
> >
> >"The move made the Japanese momentarily cease fire. Lacking radar,
> >they could not spot Washington behind the fires.
...
> >
> >"Meanwhile, Washington raced through burning seas. Everyone could see
> >dozens of men in the water clinging to floating wreckage. Flag
> >Lieutenant Raymond Thompson said, "Seeing that burning, sinking ship
> >as it passed so close aboard, and realizing that there was nothing I,
> >or anyone, could do about it, was a devastating experience.'
»
> >"Commander Ayrault, Washington's executive officer, clambered down
V
>ladders, ran to Bart Stoodley's damage-control post, and ordered
> >Stoodley to cut loose life rafts. That saved a lot of lives. But the
> >men in the water had some fight left in them. One was heard to
> >scream, 'Get after them, Washington!"
> >
> >Sacrificing their ships by maneuvering into the path of torpedoes
> >intended for the Washington, the captains of the American destroyers
> >had given China Lee one final chance. The Washington was fast,
> >undamaged, and bristling with 16-inch guns. And, thanks to Lt.
> >Hunter's course change, she was also now invisible to the enemy.
»
> Blinded by the smoke and flames, the Japanese battleship Kirishima
> >turned on her searchlights, illuminating the helpless South Dakota,
> >and opened fire. Finally, standing out in the darkness, Lee and Davis
> >could positively identify an enemy target.
»
> >The Washington's main batteries opened fire at 12 midnight precisely.
> >Her new SG radar fire control system worked perfectly. Between
> >midnight and 12:07 a.m., Nov. 14, the "last ship in the U.S. Pacific
> >Fleet" stunned the battleship Kirishima with 75, 16-inch shells. For
> >those aboard the Kirishima, it rained steel.
»
> >In seven minutes, the Japanese battleship was reduced to a funeral
> >pyre. She went down at 3:25 a.m., the first enemy sunk by an American
> >battleship since the Spanish-American War. Stunned, the remaining
> >Japanese ships withdrew. Within days, Yamamoto and his staff reviewed
> >their mounting losses and recommended the unthinkable to the emperor
> >-- withdrawal from Guadalcanal.
> >
> >But who remembers, today, how close-run a thing it was -- the ridge
> >held by a single Marine, the battle won by the last American ship?
> >
> >In the autumn of 1942.
> >
» When the Hasbro Toy Co. called up some years back, asking permission
> >to put the retired colonel's face on some kid's doll, Mitchell Paige
> >thought they must be joking.
> >
> >But they weren't. That's his mug, on the little Marine they call "GI
> >Joe."
> >
> >And now you know.